Jordans Rugs Ltd. v. Hitchens, 2019 BCPC 231

Citation: Jordans Rugs Ltd. v. Hitchens 2019 BCPC 231 Date: 20190918 File No: 1135482 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: JORDANS RUGS LTD. CLAIMANT AND: BARRY G. HITCHENS DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. GIARDINI Appearing for the Claimant: V. Sood Appearing for the Claimant: G. Bradbury Appearing on his own behalf: B. Hitchens Place of Hearing: Vancouver , B.C.

Date of Hearing: June 4, 2019 Date of Judgment: September 18, 2019 INTRODUCTION What is the dispute between the parties? [ 1 ] The dispute between the claimant, Jordans Rugs Ltd. (Jordans), and the defendant, Barry Hitchens (Mr. Hitchens), is about the payment of a portion of an invoice for the purchase and installation of carpeting in Mr. Hitchens’ home. Additionally, the defendant counterclaimed for expenses relating to: the re-installation of a portion of the carpeting, the purchase of new underlay, lost consulting fees, and filing fees. [ 2 ] In 2010, after a fire in his house, Mr.

Hitchens went to Jordans and entered into an agreement for Jordans to supply and install certain floor coverings. In particular, he entered into an agreement for Jordans to supply and install a runner on the main stairway of his home and on adjacent landings. [ 3 ] The total price for the floor coverings was $5,480.19. Mr. Hitchens gave Jordans a deposit of $2,800 in June 2010. Later, in December 2010, he paid a further amount of $930.18. Mr. Hitchens did not pay the full amount of the invoice because he claimed Jordans breached their agreement by not providing the underlay he requested. Furthermore, Mr.

Hitchens claimed the Jordans did not install the carpeting on the stairway and adjacent landings properly and did not use the installation technique he had specified. What happened when Jordans filed a claim? [ 4 ] On May 5, 2011, Jordans filed a notice of claim against Mr. Hitchens for the balance owing of $1,750.01 for the purchase of the carpeting and installation. Jordans also claimed filing fees and service fees for a total claim of $1,930.01. On May 31, 2011, a certificate of service was filed in provincial court that, on its face, indicated a process server, Matthew Simons, had served Mr.

Hitchens with the notice of claim and a blank reply by leaving a copy with him. [ 5 ] There was no reply from Mr. Hitchens on the court file within the specified time. [ 6 ] On May 31, 2011, a default order for $2,189.75 was issued in favour of Jordans. That default order included the amount of the claim, expenses, filing fees, and interest. It appears Jordans did little, if anything, to collect the default amount. However, on February 15, 2017, Jordans’ credit manager sent a letter to Mr. Hitchens advising him that the default judgment amount was still outstanding. [ 7 ] On May 4, 2017, Mr.

Hitchens, through counsel, applied to set aside the default order dated May 31, 2011. On June 12, 2017, Judge Low of this court set aside the default order dated May 31, 2011. In doing so, he also ordered that Mr. Hitchens file and serve a reply no later than June 19, 2017. On June 19, 2017, Mr. Hitchens filed a reply. The reply contained a general denial and gave particulars explaining Mr. Hitchens’ reasons for not paying the amount claimed. Additionally, Mr.

Hitchens filed a counterclaim for the costs he paid to remove the deficient underlay and reinstall the carpeting and for lost consulting fees based on 20 hours at $450 an hour for a total amount of $9,932.00, which included filing fees. [ 8 ] There are two documents on the court file - one dated October 17, 2017, and another dated November 7, 2017. These are notes sent by the court Registry to Mr. Hitchens. After the original reply was filed, Mr. Hitchens attempted to make changes. It appears those changes were not accepted by the Registry. BACKGROUND TO THE CLAIM Evidence of Mr.

Bradbury for the claimant [ 9 ] In 2010, Gary Bradbury was the store manager at Jordans Broadway store in Vancouver, British Columbia. He testified he became involved in this matter once the dispute arose. Prior to that, a salesperson named David Carr did the estimate and prepared a written Conditional Sales Agreement (“the CSA”) dated June 26, 2010. Mr. Hitchens signed the CSA. [ 10 ] The CSA provides Jordans would do the following:

a) To supply and install Veronique carpet “over H/D rubber underpad ¼ inch”; this was for the stairs up, hallway, landings. (Note there are two versions of this document. One version has the fraction ½ added just after the word “underpad”.)

b) To supply and install Tuftex Cozy “over high density ¼ inch foam underpad” in the sitting room area.

c) To supply and install Tuftex Cozy “over high density underpad ½ foam” to the dressing room and guest room closet.

d) To install customer supplied transitions. [ 11 ] There are also hand-written notes on the CSA regarding the floor preparation. There is no indication of the amounts of carpeting or measurements or any other points discussed with or requested by the Mr. Hitchens. [ 12 ] In October 2010, Mr. Bradbury learned there was a dispute about the installation. He went to Mr. Hitchens’ house two or three times to look at the installation. On one occasion, the installation operations manager who was a former installer went with him. Mr.

Bradbury learned that the particular dispute was about the installation of the “runner” carpeting on the staircase. Mr. Bradbury’s understanding of the problem identified by Mr. Hitchens was that the underlay/underpad had been installed only on the treads of the stairs and not on the risers. Therefore, the carpet lay flat. That is, it did not “plumb up” in the middle. [ 13 ] On October 18, 2010, Mr. Bradbury wrote Mr. Hitchens an email telling him that after reviewing the situation, Jordans had

concluded it could not install the carpet on the stairs to Mr. Hitchens’ expectations. In that email, Mr. Bradbury said Jordans was willing to accept Mr. Hitchens’ suggestion of adjusting his bill so he could have another company re-install the carpeting on the stairs. Mr. Bradbury suggested a credit amount Jordans was willing to apply to the cost of re-installing the carpeting on the stairs. [ 14 ] On October 19, 2010, Mr. Hitchens responded to Mr. Bradbury’s email. He raised a number of issues regarding the carpeting installation.

He wrote he was going to approach Burritt Brothers, who had previously provided services to him, to see whether they would take the work on. Mr. Hitchens expressly declined to accept the credit offered by Jordans. He felt it would be insufficient. Instead, he said he would present Burritt Brothers’ invoice to Jordans once the re-installation was done. [ 15 ] On October 20, 2010, Mr. Bradbury wrote back to Mr. Hitchens.

He acknowledged the next logical step would be to have Burritt Brothers go in to look at the stairs and provide a quotation for labour, underpad, and a determination of how much carpeting needed to be ordered. [ 16 ] On October 27, 2010, Burritt Brothers went to Mr. Hitchens’ home to assess the installation. Mr. Hitchens wrote to Mr. Bradbury and summarized the discussion he had with the Burritt Brothers’ representative. The Burritt Brothers’ representative not only reviewed the installation on the staircase, but also other deficiencies Mr. Hitchens identified in the sitting room and other areas of the house.

In closing that email, Mr. Hitchens wrote that Burritt Brothers would not remove the existing carpet on the stairs; however, they would re-install the existing carpet or install a replacement. Mr. Hitchens wrote he had decided to “privately remove existing carpet carefully for reinstall.” [ 17 ] There may have been other communications between the parties but, if there were, they were not submitted at trial. However, on November 15, 2010, Mr. Hitchens wrote an email to Mr. Bradbury he had received an expression of interest from another installer to re-do the stairs. On December 2, 2010, Mr. Bradbury wrote to Mr.

Hitchens asking for an update. [ 18 ] Early the next morning on December 3, 2010, Mr. Hitchens wrote to Mr. Bradbury. He explained that the carpeting on the stairs had not yet been re-installed. Two installers, one of whom declined to re-install the carpeting, assessed the carpeting. Mr. Hitchens wrote that the installer who accepted the job was out of the country and would not be returning until January. Mr. Hitchens explained he would be leaving for the United States on December 27, 2010, and not returning until early April 2011.

Accordingly, it was unlikely that the completion or the re-installation could occur before May. Later that same day, Mr. Bradbury sent an email asking Mr. Hitchens to provide the names of the two installers. Mr. Hitchens wrote back but declined to provide the names “for confidentiality”. [ 19 ] Later, on December 3, 2010, Mr. Bradbury wrote a without prejudice email to Mr. Hitchens. He advised Mr. Hitchens that he owed a balance for the installation. If Jordans did not receive payment in full before December 27, 2010, the account would be forwarded to collections. [ 20 ] On December 4, 2010, Mr.

Hitchens replied to Mr. Bradbury’s letter. He raised a number of issues about the installation of the carpeting in his home. He believed Jordans had not fulfilled the contract terms. He also believed Jordans had exercised careless evaluation of the pre-existing carpet and the “elements” of the stairs. As well, he said Jordans exercised no project or quality control and had subcontracted out the installation, without providing any “design guidance” to the installer. Mr.

Hitchens wrote that if Jordans elected to submit the balance on the invoice to collections, he would vigorously challenge their claim. [ 21 ] On January 6, 2011, Mr. Bradbury sent a without prejudice email to Mr. Hitchens. It confirmed receipt of $930.18. The email said, however, that Jordans did not accept this as a final payment. Mr. Bradbury broke down the account and indicated a balance owing, as well as credits that would be applied. However, since it was a without prejudice email, I am not setting out the amounts. [ 22 ] Later in the day on January 6, Mr. Hitchens replied to Mr. Bradbury’s email.

He wrote that the cost of the combined re- purchased stairway underpad and labour for re-installation would be provided in receipt form, in hard copy, in his “rejoinder submission”. Mr. Hitchens reviewed the concerns he had with the underpad and the use of a subcontracted installer for installation of the carpeting. He reviewed his previous position on settling the matter but, since Jordans had not accepted what Mr. Hitchens considered a reasonable compromise, he withdrew the earlier offer. [ 23 ] As part of his testimony Mr.

Bradbury introduced two documents, which both purport to be a conditional sales agreement dated June 26, 2010. Those documents were marked as Exhibit 11 and Exhibit 12 at trial. Mr. Bradbury testified that Exhibit 11 was a copy of the “original” document signed by Mr. Hitchens and filled in by David Carr. He pointed out that in the “original” CSA the underpad to be used on the stairs, hallway, and landings was a high-density (H/D) rubber underpad “1/4 inch”. [ 24 ] Mr. Bradbury testified that Exhibit 12, which at first glance appears to be a copy of Exhibit 11, is a different document. Mr.

Bradbury noted there was a cloud-like line drawing around the name David Carr and the date June 26, 2010. That cloud-like line drawing was not in the “original”. Mr. Bradbury also noted that in Exhibit 12 there was an addition between the word “underpad” and “¼ inch”. That fraction was “½ “. It was written-in immediately adjacent to the word “underpad” and a small dash (-) was added between the ½ inch fraction and the ¼ inch already specified in the “original” CSA. [ 25 ] In cross-examination, Mr. Bradbury said, as far as he knew, Jordans had not substituted a lower grade/thinner underpad for the stairs.

He acknowledged he did not see or approve the underpad installed in the landing and the stairway by the installer. Mr. Bradbury agreed that the CSA specified high density, rubber underpad. He assumed that is what was installed. Mr. Bradbury denied that when he attended at Mr. Hitchens’ home he had gotten down on his knees and pulled up a corner of the underpad. He denied the underpad was less than 1/8 of an inch. He did not recall such behaviour. Moreover, Jordans did not have such an underpad product at the time. [ 26 ] With respect to the installer, Mr.

Bradbury acknowledged the installer was not a Jordans’ employee but a subcontractor. Mr. Bradbury added that all of Jordans’ installers are under contract and are not employees. Mr. Bradbury did not personally convey instructions to the installer. They did not meet and brief the installer before jobs. In particular, they did not review the CSA with the installer. Mr. Bradbury noted there was no mention in the CSA about a “cascade” application. [ 27 ] Mr. Bradbury said he had no knowledge of any conversation Mr. Hitchens may have had with David Carr. It was put to him by

Mr. Hitchens that Mr. Hitchens had a conversation with Mr. Carr that the ½ inch (re underpad) could be added to the CSA. Mr. Bradbury said he was not aware of any such conversation. Mr. Bradbury said he was aware of the “cascade” method of installing carpets on stairways. Mr. Hitchens put to him that the contract specified that type of application. Mr. Bradbury said that was not the case, it was not in the CSA contract. Mr. Bradbury did not acknowledge that the “cascade” method of installation was a required term of the contract Mr. Hitchens had with Jordans. [ 28 ] In answer to questions posed by the court, Mr.

Bradbury said he was not involved in the preparation of the CSA. Mr. Carr, who is now long retired, did that. Mr. Bradbury first saw the CSA in October 2010. [ 29 ] Mr. Bradbury said that when he went to Mr. Hitchens house he did not take photos of the stairway installation. He recalled seeing “tufts” of carpeting in the stairway carpeting. Evidence of the defendant Mr. Hitchens [ 30 ] Mr. Hitchens testified he had a fire in his home. Most of the carpeting on the main and second-floor was destroyed.

He met with David Carr at Jordans and contracted with Jordans for the purchase and installation of carpeting throughout the house. He acknowledged he signed the CSA dated June 26, 2010. He acknowledged the contract price was approximately $5,500. [ 31 ] Mr. Hitchens testified he wished to replicate the look and feel of the carpet he had in his home before the fire. Burritt Brothers had installed that carpeting sometime between 1995 and 1999. Mr. Hitchens explained the method used in installing that carpet was the “cascade” method.

It is a way of installing the underpad and the carpeting so that there is no break and the underpad and carpet cover the steps/treads and the risers. He said that method produces a lovely effect. It creates a soft spongy feeling underfoot. Mr. Hitchens said it was the standard method used by Burritt Brothers. [ 32 ] Mr. Hitchens further testified that the agreement with Jordans called for a high-density rubber underpad. He said that was the only product that would create a soft spongy feel. He said it had to be high-density rubber. That is the standard product used in better homes.

It was the product used in his home before the fire. [ 33 ] Mr. Hitchens did not recall anyone coming to his home before the installation. He said in the third or fourth week in July 2010, on the day that the carpeting was installed on the stairway; he noted the installer was cutting and installing rectangular pads of underlay on each of the steps. He was affixing it on the tread of the stairs and not on the risers. [ 34 ] Mr. Hitchens told the installer to stop because that was not the method of installation he had chosen for the underpad. Mr. Hitchens told the installer to cease and desist what he was doing.

The installer became hostile and told Mr. Hitchens he would not be lectured to by Mr. Hitchens. The installer continued to do his job. He finished installing the underpad and carpeting on the stairway. The installer took away the high-density rubber underpad that had been there before the fire. The installer rolled it up and removed it. That underpad was ½ to ⅜ inch thick and was made of high-density rubber. The installer took his tools and left the house. While the installer was still at his house, Mr. Hitchens tried to get in touch with Mr. Carr. He left a message on Mr. Carr’s voicemail. Mr.

Hitchens said he never received a return call. [ 35 ] Mr. Hitchens acknowledged he did not pay the full price as set out in the CSA sales. He paid approximately $3,800. However, he refused to pay the balance. In his view, the balance represented the cost of underpad and labour, which in his view were substandard. Mr. Hitchens acknowledged he exchanged a series of emails with the staff at Jordans. He said the emails set out the chain of events. [ 36 ] Mr. Hitchens said he had the carpeting re-installed on the stairway and the landing areas.

He explained there were two landing areas, a large one at the very top of the stairs, and another one at a point where the stairs turned before continuing upwards. Mr. Hitchens retained an installer to re-install the carpeting on the stairway and the landing areas. He did not have the installer’s name. He said the installer was someone from the UK. He paid the installer $750 in cash, which is what the installer wanted. [ 37 ] The installer Mr. Hitchens hired was at the house for one day. He lifted the carpet from the stairway and the landing areas. He removed all the staples and nails.

The carpet runner for the stairs was in one piece. He removed it and laid out in the front yard. He separately removed the landing area carpeting. The installer also removed the entire underpad. The installer brought with him a continuous roll of high-density rubber underpad, which he cut to size and installed on the stairs and landings. [ 38 ] Mr. Hitchens said the installer took care of everything. He tucked everything in tightly. The installer even used scissors to get rid of the “tufts”. The installer adjusted certain that other parts of the carpeting.

The installer also adjusted a piece of carpeting at the bottom of the stairway, which was laid improperly. It was not laid in the direction of the pattern on the carpeting. Mr. Hitchens believed the re-installation was done either in late December 2010 or in January 2011. [ 39 ] In cross-examination, Mr. Hitchens was asked how he had specified the change about the thickness of the underlay on the CSA. He said he added it. Mr. Hitchens said he cut out a piece of the original damaged underpad. He measured it and he put in ½ an inch. [ 40 ] The court asked Mr. Hitchens when he did that.

He could not remember the specific date but it was well before he started negotiating with Jordans. Mr. Hitchens said he added the ½ inch after he had spoken to Mr. Carr on the telephone. This was a few days after he had signed the CSA. Mr. Hitchens said he had called Mr. Carr to make it absolutely clear what his expectation was. [ 41 ] Jordans’ representative asked Mr. Hitchens whether the change was initialed. Mr. Hitchens said Mr. Carr verbally and orally accepted it. He said Mr. Carr had told him; “Yes” we can do that. It was put to Mr. Hitchens that at the time Jordans did not carry ½ inch underlay. Mr.

Hitchens said he could not account for that. He had no knowledge of inventory or standards at Jordans. He quickly noted, however, that the other installer he later hired had no problem obtaining the thicker underpad. [ 42 ] It was put to Mr. Hitchens that the word “cascade” was not used at all in the CSA. Mr. Hitchens answered that within 48 hours he contacted Mr. Carr because he wanted to make sure that the installation would be the “cascade” method. Jordans’ representative pointed out that they had no email to that effect. Mr. Hitchens said he mentioned the “cascade” method during the same conversation

where he discussed the thickness of the underpad. There was no email. He dealt with it in a telephone call to Mr. Carr. [ 43 ] Jordans put to Mr. Hitchens that when he had complained about the installation Jordans responded right away. He said that was not so. Mr. Hitchens was also asked about Mr. Bradbury’s visit to his house. However, Mr. Hitchens noted that was a week later. He acknowledged that Jordans offered to credit him for the labour. He agreed that there was an offer of some degree, but he did not recall the exact nature of the offer because that was 10 years ago. Moreover, Mr.

Hitchens said, at that point he had lost confidence in Jordans. Accordingly, Mr. Hitchens said he decided to seek remedial action elsewhere from a more professional firm. He said it was his decision to contact Burritt Brothers to see if they would re-install the carpeting. However, Mr. Hitchens asserted that company was not interested in getting involved with Jordans or with their dispute. [ 44 ] The court asked several questions about the calculation of amounts owing. Mr. Hitchens acknowledged that he paid a deposit of $2,800. He next paid $930.18. He agreed the total of those two amounts was $3,730.18. Mr.

Hitchens further agreed that the total price of the contract was $5,480.19. Accordingly, that left a balance of $1,750.01 to be paid. The court asked Mr. Hitchens how much he was actually out-of-pocket. He said he was out-of-pocket $750 for the amount he paid the private installer he had retained. The installer was able to use the carpeting that Jordans had installed on the stairway. Counterclaim [ 45 ] Mr. Hitchens counterclaimed for $9,750.00, and filing fees. That amount consisted of the sum of $750 in consequential damages for breach of contract.

This comprised the payment to an independent carpet layer who removed and re-installed the carpeting on the stairway. It also included the cost of a new underpad. [ 46 ] Additionally, Mr. Hitchens claimed 20 hours lost consulting fees that his business would have otherwise secured but for Jordans’ breach of contract. At the time of the installation, Mr. Hitchens was working as a consultant in the financial industry. He billed his clients $450 per hour for his services. Accordingly, he claimed 20 hours at the rate of $450 per hour for a total of $9,000. [ 47 ] In his testimony, Mr.

Hitchens acknowledged he claimed the cost of 20 hours of his time. He was asked why he had not sued Jordans at the time. Mr. Hitchens said this was such a trivial matter and the professional fees he was charging his clients at the time were thousands of dollars more. He did not worry about a banal matter such as this. Mr. Hitchens said he made the claim for 20 hours because he is seeking justice. Jordans’ representative asked Mr. Hitchens whether he documented the 20 hours. He said he had not. Jordans asked him if he could break the 20 hours down. Mr. Hitchens said that was a silly question. [ 48 ] Mr.

Hitchens testified he included the emails he prepared to respond to Jordans as part of the 20 hours, as well as the time that Jordans’ staff visited his home to check on his complaint. Mr. Hitchens said Jordans had not fulfilled its part of the contract. They had subcontracted the installation to some person from Surrey who had no idea how to layout a perfect stairway runner. Moreover, he thought the whole process was abominable. Mr. Hitchens said he was simply hoping to get compensation for all the injury Jordans put him through in this banal matter.

LEGAL PRINCIPLES The burden and standard of proof [ 49 ] In Northland Properties Corp. v. British Columbia, 2010 BCCA 177 , the Court of Appeal explained the burden of proof as follows: The legal b urden lies on the party whose responsibility it is to prove a fact or an issue to the required st andard of proof . If the party who bears the legal burden fails to prove its case, or if the evidence weighs equally between the two sides, then that party loses.

There can be multiple legal burdens of proof in a single action: see Sopinka, Lederman & Bryant, The Law of Evidence in Canada (Butterworths: Vancouver, 1992) at 53-65. The evidential burden is not synonymous with the legal burden. An evidential burden means that a party has an obligation to adduce sufficient evidence to put a matter in issue; it is not the same as having the obligation to prove a fact: see Sopinka at 53-65. Care should be taken to use the term only where appropriate. (At paras. 4 and 5) [ 50 ] In the civil context, there is only one standard of proof, that is, the balance of probabilities.

In F.H. v. Mcdougall , 2008 SCC 53 , Rothstein J., for the court, said: Like the House of Lords, I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences.

However, these considerations do not change the standard of proof…. (At para. 40) [ 51 ] Accordingly, in this case on Jordans’ claim for payment of the balance of the invoice, Jordans has the legal and evidentiary burden of proving, on a balance of probabilities, that a contract was made as alleged. See, Clifford v. Flores [2004] B.C.J. No. 522 . On the counterclaim, Mr.

Hitchens has the burden of proving his claim for the payment of $ 9,750.00, plus filing fees, on a balance of probabilities. [ 52 ] In civil cases where there is a dispute about what happened, including whether the parties reached an agreement and what the agreement was, the trial judge must scrutinize the relevant evidence with care to determine whether, it is more likely than not that, an alleged event occurred. In reaching a decision, I am required to make findings of fact based on the documentary evidence and the testimony presented during the trial.

I may accept all, some, or none of the evidence given by the witnesses called by the parties. Throughout the fact-finding process, I must bear in mind which of the parties has the burden of establishing a particular fact or set of facts.

[53] In this case, the parties acknowledge there was a written agreement made at the end of June 2010. However, the defendant, Mr.Hitchens, also alleges there was an oral agreement that made changes to the written agreement. Agreements may be made verbally, inwriting, or by a combination of the two. However, the fact an agreement may not have been reduced to writing does not alter therequirement to satisfy the court about the certainty of the terms agreed to by the parties. See, Canadian Bedding Co. v. Western SleepProducts Ltd., [2009] B.C.J. No. 2180. The basic contractual principles of offer and acceptance and certainty of terms apply. See,Clifford v. Flores.

Interpretation of contracts [54] In Le Soleil Hotel and Suites Ltd. v. Le Soleil Management Inc., 2009 BCSC 1303, Madam Justice Dickson reviewed a numberof legal principles that apply to the

interpretation of contracts. In doing so, she noted courts strive to uphold contractual obligations thatare solemnly and freely undertaken. However, courts will not impose obligations upon parties who have not reached agreement on allessential terms. In particular, Madam Justice Dickson noted: These fundamental principles of contract law enable commercial life to operate in a fair, predictable and efficient manner. They applywhether the purported contract in question is concluded in writing, orally, by conduct, or by a combination thereof.

The key question inall cases is whether an agreement has been reached on all essential terms, regardless of its form. (At para. 323) [55] In order to determine whether Jordans has proved its claim against Mr. Hitchens, as well as whether Mr. Hitchens has provedhis counterclaim, I need to determine whether the parties entered into a legally enforceable contract, as well as what terms they agreedupon. Elements required for a valid contract [56] The following elements are necessary for the formation of a valid contract: 1. Making an offer - Has an offer been made to enter into an agreement on certain terms? 2.

Acceptance of offer - Has each term of the offer been accepted by each party, either by words or by conduct? 3. Consideration - Has one party given a benefit or has the other suffered detriment or loss? 4. Intention - Do the parties to the agreement intend to create legal relations? 5. Certainty - Are the terms of the agreement certain and not vague? 6. Complete contract - Is the agreement complete? Are there any terms left outstanding to be agreed upon later? [57] Before a legally binding contract is established, there must be a meeting of the minds about the essential terms.

There can be nocontract without a meeting of the minds. The question is whether the reasonable observer, examining the exchanges between the parties,would conclude that a contract has been entered into. See, British Columbia (Minister of Transportation and Highways) v. ReonManagement Services Inc., [2001] B.C.J. No. 2500. [58] The law is concerned not with the parties’ intentions but with their manifested intentions. Sometimes it is a simple matter todecide what the parties have manifested to each other; for example, where the parties have put their agreement into a written documentand have signed it.

If there is no single document, then everything that occurred between the parties relevant to the alleged contract mustbe considered by the court. This will assist the court to determine whether an agreement can be established on the basis of what the parties have said, done, or written. See, Fridman, The Law of Contract in Canada (4th ed.) at pp. 16-18. However, as noted by SkilnickPCJ in Pacific Vending Ltd. V. Fraser Valley Playgrounds Inc., [2015], 2015 BCPC 250, the parties are before the court to enforce thecontract that they actually made, not the one that one or both of them may wish they had made.

Mitigation [59] The law with respect to mitigation is concisely set out in the majority reasons of Madam Justice Karakatsanis in SouthcottEstates Inc. v. Toronto Catholic District School Board, 2012 SCC 51: 23 This Court in Asamera Oil Corp. v. Seal Oil & General Corp., (SCC), [1979] 1 S.C.R. 633, cited (at pp. 660-61)with approval the statement of Viscount Haldane L.C. in British Westinghouse Electric and Manufacturing Co. v.

Underground ElectricRailways Company of London, Ltd., [1912] A.C. 673, at p. 689: The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but this first principle is qualified by asecond, which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars himfrom claiming any part of the damage which is due to his neglect to take such steps. 24 In British Columbia v.

Canadian Forest Products Ltd., 2004 SCC 38, [2004] 2 S.C.R. 74, at para.176, this Court explained that "[l]osses that could reasonably have been avoided are, in effect, caused by the plaintiff's inaction, rather than the defendant's wrong." As ageneral rule, a plaintiff will not be able to recover for those losses which he could have avoided by taking reasonable steps. Where it isalleged that the plaintiff has failed to mitigate, the burden of proof is on the defendant, who needs to prove both that the plaintiff hasfailed to make reasonable efforts to mitigate and that mitigation was possible (Red Deer College v.

Michaels, (SCC),[1976] 2 S.C.R. 324; Asamera; Evans v. Teamsters Local Union No. 31, 2008 SCC 20, [2008] 1 S.C.R. 661, at para. 30). 25 On the other hand, a plaintiff who does take reasonable steps to mitigate loss may recover, as damages, the costs and expensesincurred in taking those reasonable steps, provided that the costs and expenses are reasonable and were truly incurred in mitigation ofdamages (see P. Bates, "Mitigation of Damages: A Matter of Commercial Common Sense" (1991-92), 13 Advocates Q. 273). The

valuation of damages is therefore a balancing process: as the Federal Court of Appeal stated in Redpath Industries Ltd. v. Cisco (The), (FCA), [1994] 2 F.C. 279, at p. 302,: "The Court must make sure that the victim is compensated for his loss; but itmust at the same time make sure that the wrongdoer is not abused." Mitigation is a doctrine based on fairness and common sense, whichseeks to do justice between the parties in the particular circumstances of the case. ANALYSIS [60] Addressing the issues raised by the parties in this case is difficult because this matter arose 9 years ago.

Neither Jordans nor Mr.Hitchens was able to provide a complete documentary record regarding the transaction between them and the subsequent disagreement. Was there a contract between the parties? [61] Both Jordans and Mr. Hitchens agree there was an agreement between them about the purchase and installation of somecarpeting. Both parties also agree that a representative of Jordans and Mr. Hitchens signed the CSA dated June 26, 2010. Accordingly,given the parties agreement, I find there was a written contract between them.

That contract was the conditional sales agreement (CSA)which was marked as Exhibit 11 at the trial. What were the terms of the contract? [62] Although the court was given a copy of the CSA, it was not provided with the full CSA because the conditions (referred to justunder the heading Conditional Sales Agreement) that were on the reverse of the pre-printed form, were not provided to the court.Accordingly, the evidence before the court is not complete. Moreover, the court was also presented with two versions of the CSA. Oneversion, which Jordans claims is the “original” CSA, refers to “H/D rubber underpad ¼ inch”.

The other version has what appears to be achange in that phrase and reads “H/D rubber underpad ½ - ¼ inch”. On the face of it, the reference to “-½” appears to be an addition. [63] In cross-examination, Mr. Hitchens acknowledged he added the fraction “½ “to the description of the rubber underpad on theCSA. He testified he did so because of a conversation he had with Mr. Carr a few days after he had signed the CSA. Mr. Hitchens said hecalled Mr. Carr to make it absolutely clear what his expectation was. He maintained Mr. Carr verbally accepted the alteration and agreedto it.

He also said he specified the “cascade” style of installation. However, in cross-examination, Mr. Hitchens acknowledged the word“cascade” was not in the CSA to describe the type of installation he wanted. Mr. Hitchens asserted that within 48 hours he had contactedMr. Carr to make sure that it would be a “cascade” (continuous) installation. Mr. Hitchens acknowledged there was no email in thisregard. However, Mr. Hitchens said the term “cascade” was mentioned during the same conversation he had with Mr. Carr to add the ½inch specification regarding the rubber underpad. [64] The differences between Jordans and Mr.

Hitchens versions of events, and their very different understanding of the deal theysay was reached in June 2010, require me to make certain findings of fact:

a) The CSA dated June 26, 2010, is the only written document that sets out what the parties agreed regarding carpeting andinstallation.

b) On the evidence before the court, I am satisfied that the original CSA referred to a rubber underpad. The only person whocould give specific evidence in that regard is Mr. Hitchens. He testified that what was installed in his house was a rubber underpad.However, it was only ¼ inch (that is 10 mm) instead of ½ inch (that is 12 mm).

c) A copy of the CSA (Exhibit 12) was amended by Mr. Hitchens. Other than Mr. Hitchens testimony about the telephone callwith Mr. Carr, there is no documentary or other evidence regarding Jordans’ agreement to change the measurement for the underpad.

d) At the bottom of the CSA, there is an area in which special instructions can be set out. There is nothing in that area oranywhere else in the CSA that specifies the installation of the underlay and carpeting was to be done by the “cascade” method. Mr.Hitchens was punctilious about his expectations of the installation and the materials. Additionally, he testified that the quality ofunderlay and the “cascade” method of installation were very important to him. He said he wanted to replicate the carpet installation thatwas in the stairway before the fire.

Accordingly, it is telling that there is no documentation of any kind (except for one document whereonly Mr. Hitchens made a change) to substantiate and record the discussion Mr. Hitchens referred to having with Mr. Carr.

e) Mr. Hitchens had Burritt Brothers go to his home to review the concerns he had regarding treads, risers, and underlayinstallation on his stairway. He summarized what he was told by Burritt Brothers in an email to Mr. Bradbury dated October 27, 2010. Inthat email he wrote, the Burritt Brothers representative told him that applying underlay to risers using a “cascade” method wouldnormally be a customer request. It is not an installer’s normal procedure. In a subsequent email, dated December 4, 2010, sent by Mr.Hitchens to Mr. Bradbury, Mr.

Hitchens wrote the Burritt Brothers’ representative had told him that underlay applied to the risers hadbeen done in the past but was not done currently, except by specific request. [65] I am satisfied that the evidence establishes there was a written contract, which was entered into between Jordans and Mr.Hitchens. That contract is set out in the CSA (Exhibit 11). As I have already noted in my recitation of the background, the reverse side ofthe CSA, which apparently had terms and conditions, was not submitted. [66] I do not accept Mr.

Hitchens evidence that the written contract set out in the CSA was subsequently altered by consent, in tworespects by a verbal agreement reached over the telephone between Mr. Hitchens and Mr. Carr. Mr. Hitchens asserted he telephoned Mr.Carr and during that conversation, it was agreed that the underpad was to be ½ inch and the installation method would be the “cascade”style. In reaching my conclusion on this regard, I have considered the factors set out in Faryna v. Chorny, (BC CA),[1951] B.C.J. No. 152.

On a balance of probabilities I conclude, that Jordans’ installation of the carpeting on the stairway and theunderpad provided were in keeping with the agreement reached on June 26, 2010. As I have noted, I accept that Exhibit 11 is the CSAentered into jointly by the parties when they made their deal. [67] Given that conclusion I find that the defendant Mr. Hitchens owes Jordans $1,750.01 plus $100 filing fee, and $80 service fee

for a total of $1,930.01 (Canadian). That amount must be paid to Jordans in full no later than 4:00 PM, October 21, 2019. In all of the circumstances, considering the claimant’s delay in addressing this matter, I am not ordering interest of any kind. [ 68 ] With respect to Mr. Hitchens’ counterclaim, given my findings about the agreement between the parties and Jordans compliance with the terms of the agreement, I dismiss Mr. Hitchens claim for $750 for the labour and materials for the re-installation of the carpeting. [ 69 ] I also dismiss Mr.

Hitchens counterclaim for the loss of consulting fees for his business. Mr. Hitchens has not established the loss he claimed. In reaching a conclusion in this regard, I have considered a number of factors, including: • He has not been able to account for the 20 hours he claims he spent trying to resolve his concerns about the carpeting installation. • Mr.

Hitchens did not provide any reason and/or explanation why he could not have addressed his concerns with Jordans during his personal time rather than time spent on his business. • Although his professional consulting fees may have been $450 an hour, there was no evidence to suggest that the time he took to deal with his concerns was worth $450 an hour. • Finally yet importantly, the time taken by Mr. Hitchens in pursuing his complaint against Jordans could have been done by someone else and/or more efficiently. There was no evidence provided by Mr.

Hitchens why he, himself, had to take on what he considered a “banal” matter when he could have been earning $450 an hour. CONCLUSION [ 70 ] In

summary, I find that the claimant, Jordans, has established that the CSA dated June 26, 2010, set out the terms of the agreement between it and Mr. Hitchens. I further find that Jordans complied with the terms of that agreement. Consequently, I do not accept the defendant’s contention that the carpet installation on the stairway had to be re-installed and/or that he needed an independent installer to do it. Accordingly, Jordans is entitled to the payment of the total of $1,930.01. This amount includes the amount claimed by Jordans, plus filing fees and service fees. [ 71 ] I dismiss the counterclaim of Mr.

Hitchens in its entirety. _____________________________ The Honourable Judge Giardini Provincial Court of British Columbia