Canadian Refrigeration v. East Hastings Restaurant Date:, 2012 BCPC 16

Citation: Canadian Refrigeration v. East Hastings Restaurant Date: 20120119 2012 BCPC 0016 File No: 11-35517 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: CANADIAN REFRIGERATION & AIR CONDITIONING LTD. CLAIMANT AND: EAST HASTINGS RESTAURANT CORPORATION DBA BURGER KING DEFENDANT REASONS FOR JUDGMENT OF HER WORSHIP BARBARA CORNISH Appearing for the Claimant: Noren Jubbal Appearing for the Defendant: Janif Mohammed Place of Hearing: Vancouver, B.C.

Date of Hearing: January 11, 2012 Date of Judgment: January 19, 2012 [ 1 ] In this Action the Claimant, Canadian Refrigeration Air Conditioning Ltd. (“CRAC”) seeks payment for refrigeration repair services provided to the Defendant, East Hastings Restaurant Corporation dba Burger King on December 18, 2010 and for which the Claimant says it has not been paid. [ 2 ] At the conclusion of the Expedited Trial I gave judgment for the Claimant and provided brief oral reasons. These are my full reasons for reaching that decision. The Claimant’s Position [ 3 ] The Claimant was represented by Mr.

Naren Jubbal, the owner of CRAC. His evidence was that on December 18, 2010 he received an emergency call from a representative of the Defendant to repair a walk-in freezer, which was reportedly “getting warm”. Mr. Jubbal attended that day along with another worker and made the repairs. In the invoice attached to his Trial Statement, the precise nature of the repairs is itemized and included: locating and repairing a couple of refrigerant leak sites; repressurizing the system; and replacing refrigerant. After completing these repairs the freezer was operational but Mr.

Jubbal also noted on the invoice that the fan delay on the evaporator was not working and recommended its replacement as soon as possible. He also recommended that the cover of

the unit be replaced. [ 4 ] Upon completing the repairs, Mr. Jubbal presented his invoice in the amount of $1,602.51 (the “Hastings Street Invoice”) to the representative on site but was told that she had no authority to pay for the services at that time. [ 5 ] Mr. Jubbal’s evidence was that he followed up with phone calls to the Defendant regarding the replacement of the evaporator fan but received no return call from the Defendant. [ 6 ] A few days later, Mr.

Jubbal received another phone call from a representative of the Defendant advising that the freezer had stopped working and requesting that they attend to conduct repairs (the “Second Service Call”). Mr. Jubbal testified that at the time he received this call he had not received payment for the December 18, 2010 repairs and also that an additional invoice for repairs conducted at a different location (the “Main Street Invoice”) remained outstanding. He advised the Defendant that he required the Main Street Invoice to be settled before he would provide any further services.

The Defendant declined to do so and called another company (the “Second Company”) to do the repairs (the “Second Set of Repairs”). Thereafter, the parties had a number of discussions. The Main Street Invoice was paid but the Hastings Street Invoice remained outstanding and it is this invoice which is the subject of the current Action. The Defendant’s Position [ 7 ] The Defendant was represented by Mr. Janif Mohammed. Mr. Mohammed’s evidence was that Mr.

Jubbal had performed work at a couple of other locations, including Main Street prior to December 18, 2010 and that he was very pleased with the services provided, and, in fact had told Mr. Jubbal that he could do all his repairs in the future. He agrees that Mr. Jubbal attended at the Hastings Street location on December 18, 2010 and performed the services at issue. [ 8 ] Mr. Mohammed’s position however, is that Mr. Jubbal should have also attended to the Second Service Call for two reasons: first, he says he understood that Mr. Jubbal would be looking after all his repairs.

This appears to be based on a tacit misunderstanding between the parties. While Mr. Mohammed was clearly pleased with the past services provided by Mr. Jubbal and would have liked him to continue to provide services in the future, both parties agreed that they had no specific discussions on the issue. Rather, each appears to have had differing expectations regarding their business relationship. To this end, the invoices rendered by the Claimant provided as follows: “Terms: Payment on receipt of invoice, a service charge of 2% per month… applied to accounts over 30 days”. Based on this wording, Mr.

Jubbal’s evidence was that he expected to be paid on receipt of his invoices. For his part, Mr. Mohammed’s expectation was that he would receive a 30 day grace period to pay outstanding invoices. Thus, when the Main Street Invoice remained outstanding at the time of the Second Service Call, Mr. Jubbal was reluctant to provide further services, while Mr. Mohammed expected the services to be provided and that the Main Street Invoice (which was rendered on November 30, 2011) would be settled in due course. [ 9 ] Mr. Mohammed also says that he expected Mr.

Jubbal to attend on the Second Service Call because the Hastings Street Invoice states that all labour has a 60 day warranty. He says that when Mr. Jubbal would not attend, he had to pay the Second Company $1,400.00 to complete the Second Set of Repairs. Thus, his position was that the repair effected by Mr. Jubbal must have been incomplete and he declined payment of the Claimant’s invoice. [ 10 ] As to the Second Set of Repairs, Mr.

Mohammed’s evidence was that while he paid the sum of $1,400.00 to the Second Company he did not have any discussions with this company as to the nature of the repairs they undertook. Rather, he simply assumed that since one set of repairs followed shortly after the other, the repairs undertaken by Mr.

Jubbal must have been incomplete, necessitating the further work by the Second Company. [ 11 ] Neither the invoice nor a description of the specific services rendered by the Second Company were included in the Trial Statement or produced at trial and no representative of the Second Company attended the trial to give evidence. Issues to Be Decided [ 12 ] In this case, the Defendant does not take any issue with the actual quality of the Claimant’s work nor does it deny that the services at issue were provided by the Claimant on December 18, 2010.

Rather, its position, as stated in the Reply and in its Trial Statement is the “job [undertaken by the Claimant on December 18, 2010] was incomplete”. In essence, the Defendant’s position is that the Claimant ought to have attended to the Second Service Call and that it should not have had to pay the Second Company for services which it says ought to have been provided by the Claimant in the first instance. [ 13 ] The Defendant articulated three specific reasons underlying its position as follows: a. The parties ongoing business relationship; b.

The work undertaken by the Claimant on December 18, 2010 was incomplete; and c. The Second Set of Repairs ought to have been covered by the Claimant’s labour warranty. The Parties Business Relationship [ 14 ] It was clear from Mr. Mohammed’s evidence that he expected Mr. Jubbal to have responded to the Second Service Call. As noted, however, on the evidence, the parties had very different expectations as to the overall nature of their ongoing relationship. Mr.

Mohammed’s evidence was that he was pleased with Mr. Jubbal’s past work and expected that he would continue to provide services and look after the Defendant’s freezer problems in the future. Given the wording of the invoices rendered by the Claimant he also expected that he would have 30 days to settle any accounts. As such, his evidence was that he expected Mr. Jubbal to attend to the Second Service Call and remedy the problem. He did not expect the outstanding Main Street invoice to be an impediment. Mr. Jubbal’s expectation, however, was very different.

His evidence was that he expected invoices to be paid on receipt. Without payment of his outstanding accounts, he did not wish to undertake further services for the Defendant.

In short, the expectation of the Defendant appears to have been that Claimant would be generally responsible for attending to any freezer problems which occurred, while the expectation of the Claimant was that he would provide services to the Defendant but only if his invoices were paid promptly. [ 15 ] As in any case in which the business relationship between parties is not specifically set out in writing, the parties may be operating under differing assumptions as to what is expected of them. That appears to have been the unfortunate reality in this case. While Mr.

Mohammed may have assumed that the Claimant would welcome the opportunity to generally be responsible for the Defendant’s ongoing service or maintenance needs, the evidence is that the parties had no specific discussions on this issue and did not have any agreement that that would, in fact, be the case. In short, there is no evidence of any verbal or written agreement that would have obliged Mr. Jubbal to have attended to the Second Service Call, without being paid in full for prior work performed and invoiced. The scope of the December 18, 2010 repairs [ 16 ] Whether the work performed by Mr.

Jubbal was completed on December 18, 2010, necessarily depends on what he was requested to do on that date. [ 17 ] On the evidence, the repairs undertaken by Mr. Jubbal on December 18, 2010 were in response to an emergency call because the freezer was “getting warm”; it was not to perform general maintenance or service. The invoice produced by the Claimant provides a full description of all services undertaken and notes that the problem at that time was a lack of refrigerant caused by leaks.

Those leaks were repaired, the refrigerant replaced, and the freezer left operational. [ 18 ] It is clear from the details on the invoice, however, that even though the specific problem which prompted the First Service Call was remedied at the conclusion of the repairs on December 18, 2010, further work still needed to be done and that this work was recommended to be undertaken as soon as possible. Mr.

Jubbal’s evidence was that he followed up with the Defendant regarding this additional work but that he did not receive a call back to authorize him to do it. [ 19 ] Overall, the evidence establishes that the work requested by the Defendant and undertaken by the Claimant on December 18, 2010, was to remedy the problem of the freezer getting warm. That work was performed by the Claimant and the problem remedied. There is no evidence that the Claimant was asked to do any more than this and specifically no evidence that he was asked to attend to any other potential problems with the freezer on that date.

To the contrary, while the specific problem which prompted the First Service Call was remedied, the Claimant specifically noted other outstanding problems and sought, but did not receive authorization from the Defendant, to undertake further additional repairs.

Plainly, therefore, the work requested to be performed on December 18, 2010 was limited in scope and was not intended to be a complete resolution of all potential problems with the freezer. [ 20 ] I conclude, therefore, that the scope of the work requested by the Defendant on December 18, 2010 was solely to address the problem of the freezer getting warm and that the Claimant remedied that problem and as such, completed the work requested.

The Claimant’s Labour warranty [ 21 ] The Defendant’s position is that the Second Set of Repairs ought to have been covered by the Claimant’s warranty of its services provided on December 18, 2010. As noted, the rationale underlying this assertion is the assumption that since the freezer needed further repairs shortly after December 18, the work completed by Mr. Jubbal must have been incomplete. The difficulty with the Defendant’s position on this issue, however, is that Mr. Mohammed’s evidence was that he did not have any discussions with the Second Company to determine whether this was, in fact, the case.

Nor was Mr. Jubbal aware of the nature or scope of the Second Set of Repairs. As a result, there was no oral or documentary evidence produced at trial either from the Second Company, or from any other witness, to demonstrate that the Second Set of Repairs was, in fact, undertaken to complete the work performed by Mr. Jubbal on December 18, 2010. [ 22 ] At the hearing Mr. Mohammed stated that he did not know that he may need evidence from the Second Company to support his position at trial.

Even if I accept that this was the case, since he had no discussions with the Second Company, he was unable to provide me with any basis on which I could reasonably infer that such evidence even existed. In contrast, given the limited scope of the work performed by Mr. Jubbal on December 18, 2010, together with his specific recommendation that additional work be undertaken as soon as possible, it is equally plausible that the Second Set of Repairs was related to the additional work recommended by Mr. Jubbal or indeed to other issues.

In this case, there is simply no evidential basis on which I can reliably conclude or infer that one scenario was more likely than the other. Conclusion [ 23 ] In any Action, a party is required to prove its case on the balance of probabilities. In this case, the Claimant has established that it provided the services itemized in its invoice of December 18, 2010 and that the Defendant has not paid for those services.

It has, therefore, proved its case. [ 24 ] For its part, the Defendant has not established, on the evidence, that the scope of work requested of the Claimant on December 18, 2010 comprised anything more than addressing the specific problem which was present that day and which was remedied by the

Claimant. In addition, the fact that the Second Set of Repairs was undertaken shortly after December 18, 2010 does not, in my view, in the absence of any other evidence, compel the conclusion that the repairs undertaken by Mr. Jubbal were incomplete. In short, the Defendant has not established the necessary evidential foundation on which I am able to conclude that it was justified in resisting payment of the Claimant’s invoice. As a result, the Claimant is entitled to judgment for the amount sought plus filing and service fees, for a total amount of $1,722.51. _________________ Barbara Cornish Adjudicator