Dina Fine Jewellery Ltd. v. Ancient Mariner Sign Date:, 2012 BCPC 65

Citation: Dina Fine Jewellery Ltd. v. Ancient Mariner Sign Date: 20120305 2012 BCPC 0065 File No: 1136754 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DINA FINE JEWELLERY LTD. CLAIMANT AND: ANCIENT MARINER SIGN SERVICES INC. DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP DONALD YULE Appearing for the Claimant: Mohammad Saatchi, Ali Saatchi & Justine Saatchi Appearing for the Defendant: Ken Meiklejohn Place of Hearing: Vancouver, B.C.

Date of Hearing: February 22, 2012 Date of Judgment: March 5, 2012 A corrigendum was released by the Court on April 30, 2012; the corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] The Claimant’s claim is for breach of contract by the Defendant in connection with a contract to supply and install one set of channel letters (the “sign”) on the exterior of the building above the Claimant’s retail jewelry store located at the northwest corner of Robson and Thurlow Street in Vancouver, BC. An initial contract was entered into on October 8, 2010.

A replacement contract was entered into on February 23, 2011. As of the date this action was commenced on August 10, 2011, the sign had not been installed. The claimant seeks a refund of deposits paid on two occasions, totalling $3,752.00 plus other losses. The total claim is $5,000.00 (with the Claimant waiving any excess over that amount) plus Court costs. [ 2 ] The owners of the building in which the Claimant was a commercial retail tenant replaced awnings on the building above all of

the retail tenants. New awnings and new illuminated signage was to be installed. The building owner hired the Defendant to do this work. Each of the retail tenants, including the Claimant, was required to select and pay for the sign for their own retail premises. The landlord encouraged the tenants to have this work done for them by the Defendant. [ 3 ] The Parties entered into a written contract dated October 8, 2010 for the supply and installation of one set of channel letters for the Claimant’s premises. The contract stated that “Vector artwork will be provided”.

The contract does not expressly state who is to provide the artwork. The Defendant says that the Claimant was to provide the artwork. The Claimant certainly was expected to approve the artwork. Ultimately, this involved the size and style of lettering of the words “Saatchi &Saatchi Fine Jewellery Since 1925”. The contract terms also provided that it was the customer’s responsibility to obtain all necessary permits. The contract further provided that the Defendant was not obligated to complete the installation by any certain date unless there was a date specified in the agreement.

No such date was specified. [ 4 ] Mr. Saatchi asserts that at the time the initial contract was signed, he was told that the sign would be installed by the end of the December, 2010. I accept that this statement was made to him, although I do not consider that it was incorporated as a term of the contract. Mr.

Meiklejohn was quick to point out that there is no fixed date for installation in his written contract and I conclude that he was aware of the issue and that what he said was an estimate rather than an agreed term. [ 5 ] The sign was not installed by the end of December, 2010 because the artwork was never finalized. Mr. Saatchi appears to have believed initially that the Defendant would provide sample artwork for selection by the Claimant.

While there was an exchange of different designs, the Claimant either was not told clearly or did not understand that under the contract, the responsibility for selecting a workable design was on the Claimant. Ultimately, the Defendant did hire at its expense Dropmedia to assist in signage creation and planning for the Claimant at an additional cost of $22 0.00. [ 6 ] A new contract was entered into on February 23, 2011 that expressly cancelled the agreement dated October 8, 2010. It continued to be for the supply and installation of one set of channel letters for the Claimant’s premises.

The parties agree that at this time, the issue was the absence of a sign permit issued by the City of Vancouver. Neither party had taken any steps to obtain a permit. The contractual obligation was on the Claimant to do so. In February, 2011, for an additional deposit, the Defendant undertook to obtain the permit. Mr. Meiklejohn gave evidence at the hearing that by the time the new contact was entered into in February, 2011, he had all the information respecting artwork that he needed in order to proceed with a permit application.

Schedule ‘C’ to the Defendant’s Trial Statement is the applicant’s copy of a sign permit application. The amount paid to the City was $170.80. The applicant is Ancient Mariner. The receipt/invoice date is July 19, 2011. Mr. Meiklejohn gave evidence that the permit would have been put in “weeks before” July 19. The explanation as to why the application was not filed at the end of February, 2011, was that “maybe my staff were slow”. [ 7 ] Mr. Saatchi asserts that at the time the second agreement was signed, he was told to expect that the sign would be installed within 30 days.

I accept that this statement was made to him. The new contract has the same printed terms and conditions as the initial contract, ie . there is no fixed installation date. I again find that this was an estimate of Mr. Meiklejohn but the date was not incorporated as a contractual term. [ 8 ] Mr. Saatchi continued to follow up with Mr. Meiklejohn as to when the sign would be installed. There continued to be some discussion about changing the lettering (emails, March 24, 2011). On May 31, 2011 with no indication of the sign being installed, Mr. Saatchi threatened legal action.

This elicited a same day email response from Mr. Meiklejohn acknowledging that he had previously been instructed to “do whatever I had to” to complete the project but also added that some proffered artwork had been rejected by the Claimant. Mr. Saatchi sent further emails on June 3 and July 8, 2011, asking when his sign was going to be installed. Mr. Meiklejohn apparently attended the premises on June 15 and received whatever new approval from Mr. Saatchi he was seeking. The July 8 email from Mr. Saatchi asserts that he was told on June 15 that his sign would be up within 2 weeks at the most.

I find that this statement was made to him. By email on July 13, 2011 Mr. Meiklejohn acknowledged receipt of Mr. Saatchi’s July 8 inquiry and indicated that he would be in contact soon. This Action was commenced by the Claimant on August 10, 2011. There had been no further contact. [ 9 ] In the Notice of Claim the Claimant seeks either a refund of its deposit or to have its sign installed. At the hearing, Mr. Saatchi stated that since commencing this action, he has hired another contractor who has now installed his sign.

SUBMISSIONS OF THE PARTIES Submission of the Claimant [ 10 ] The Claimant’s position is that it contracted with the Defendant in October, 2010, to supply and install a sign. It paid a deposit of $2,688.00 in October, 2010, and a further deposit of $1,064.00 in February, 2011. Although the Defendant indicated orally on several occasions that the sign would be installed within a specific period of time, the sign was never installed. The Claimant asserts that the Defendant has breached the contract, by failing to perform it, and the Claimant seeks a refund of the deposits of $3,752.00.

The Notice of Claim also includes a claim for “employee time” of $1,240.00. This claim apparently relates to the store employees (not identified) attending at the store out of normal business hours presumably to meet with Mr. Meiklejohn . No particulars of this claim were adduced in evidence and it is not proven. I do not think it is a recoverable claim in any event as presumably it was anticipated that some employee time would necessarily be taken up in making decisions about the artwork for the sign.

Submission of the Defendant [ 11 ] The Defendant submits that the delay in installing the sign has been wholly attributable to the Claimant, first in not taking the initiative to select appropriate artwork and second in not taking steps to obtain a permit. There is no fixed date for installation set out in the terms of the contract and thus the Defendant was not in breach at the time this action was commenced. With the disclosure that the

Claimant has had another sign installed by a different contractor, the Defendant relies on s.9 of the Terms and Conditions of Sale which provide that if a purchaser cancels the contract, then the Defendant is entitled to be paid 1/3 of the total contract price. Mr. Meiklejohn calculated the total contract price to be $5,600.00; on this basis the Defendant is entitled to retain $1,866.00 and would refund an equivalent amount to the Claimant.

DISCUSSION AND ANALYSIS [ 12 ] I do not agree with the Defendant’s position that all of the delay in performing the contract was due to the Claimant, nor do I agree with the submission that the absence of the fixed installation date in the contract means that there is no time limit whatsoever within in which the Defendant must perform its obligation. I do find that much of the delay between October and the end of December, 2010, was due to the inability of the Claimant to settle upon satisfactory artwork.

However, the October, 2010 contract is not the contract being sued upon, because it was replaced by the new contract in February, 2011. I view the lack of progress between October and December, 2010 merely as part of the background circumstances which should have led both parties to be proactive and get the work done once the February, 2011 contract was signed. From that point forward, the responsibility for obtaining the sign permit rested with the Defendant. Mr.

Meiklejohn conceded that he had the requisite information by the end of February, in order to make the application, and further admitted that his staff were “slow” in filing the application. He suggested that the application had been put in “weeks” before July 19, 2011, but even if the application were filed in late June, there is almost four months of unexplained delay. Mr. Saatchi continued to press for the work to be done and never received a promised installation date that was kept. As of July, 2011, he was no further ahead in knowing when the sign would be installed.

The permit had in fact not yet been issued. Where a contract to do work does not have a specific completion date, I conclude that there is an implied term that the work will be done within a reasonable period of time in all of the circumstances. The permit was not obtained and the work was not done within a reasonable period of time from the February, 2011 contract. I conclude that by August, 2011, the Defendant had breached the contract and the Claimant was entitled to treat it at an end and seek recovery of its deposit. [ 13 ]

Section 9 of the contract Terms and Conditions sets out what the Defendant is entitled to retain or receive where the purchaser wishes to be released from the contract obligations. In my view this term has no application to the present circumstances. The Claimant is not seeking to unilaterally terminate the contract; rather the Claimant is seeking damages for the Defendant’s breach of the contract. [ 14 ] With respect to damages, the Claimant is entitled to a refund of its deposits in the amount of $3,752.00.

I make no award for the alleged loss of employee time for the reasons stated previously. [ 15 ] From the amount payable to the Claimant, there should be deducted a total of $396.80. This is comprised of $176.80 paid by the Defendant to obtain the permit, and $220.00 paid by the Defendant to Dropmedia for artwork, receipts for which were annexed to the Defendant’s trial statement. The Claimant received some benefit from these expenditures by the Defendant. The net payment to the Claimant is therefore $3,355.20.

The Claimant is also entitled to the corporate search fee of $22.40, filing fees of $156.00 and service fees of $20.00. In addition the Claimant is entitled to Court order interest on $3,355.20 from August 10, 2011 to the date of judgment. __________________________ Donald W. Yule, Q.C. Justice of the Peace CORRIGENDUM – Released April 30, 2012 The Reasons for Judgment are amended as follows: 1. The name of the Defendant in the Style of Cause is amended to read: Ancient Mariner Sign Services Inc. ; 2. The name of one of the persons appearing for the Claimant is changed to read: Justine Saatchi ; 3.

Paragraph 16 is deleted.

My Reasons for Judgment is amended accordingly.