Robinson & Spurging v. Bear Studios Ltd. Date:, 2012 BCPC 56

Citation: Robinson & Spurging v. Bear Studios Ltd. Date: 20120223 2012 BCPC 0056 File No: 1137348 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ARRON ROBINSON and CURTIS SPURGING dba PLAN B CARTOONS CLAIMANTS AND: BEAR STUDIOS LTD. DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP L.A. KAHN Appearing for the Claimant: Arron Robinson and Curtis Spurging Appearing for the Defendant: Chris Wilkinson Place of Hearing: Vancouver, B.C.

Date of Hearing: February 8, 2012 Date of Judgment: February 23, 2012 INTRODUCTION [ 1 ] This matter came before me pursuant to the Simplified Trial Rules under the Small Claims Act . [ 2 ] The only issue is whether or not there was a contract between the Claimants and the Defendant arising from an exchange of emails from Wednesday, July 13, 2011 to Wednesday, July 27, 2011. [ 3 ] Each of the parties has filed a Trial Statement, both of which were introduced into evidence. Aaron Robinson (“Mr. Robinson”) primarily, and Curtis Spurging (“Mr. Spurging”) testified for the Claimants. Mr. Chris Wilkinson (“Mr.

Wilkinson”) testified for the Defendant. All were forthright, courteous and each of them regretted that there was a dispute between the parties. [ 4 ] The relevant emails exchanged between the parties are set out below:

A) Wed, Jul 13, 2011 at 10:50 AM Canpages project conference call Jamie Erickson <Jamie@bear-studios.com> To: info@planbcartoons.net Hi guys-

It was nice meeting you the other day. I was wondering if we could set up a conference call regarding the Canpages video. We presented our concept to the client yesterday and he loved it so the project is a go. It isn’t the biggest budget, so we would like to talk to you about what we would need and get a quote/timeline back from you to see if it works within what we have available. Are you available tomorrow around 3pm? If not, let us know what works for you. Thanks. Jamie Bear Studios

B) Fri, Jul 15, 2011 at 3:06 PM Canpages Script Jamie Erickson <Jamie@bear-studios.com> To: Arron Robinson <arron.robinson@gmail.com> Hi Arron- Here is the rough script. As discussed, please provide us with a rough time line as well as a quote based on the script. Once we have a chance to review those and decide what our next move will be, we will arrange a creative meeting for next week sometime. Thanks…and have a great weekend. :) Jamie Bear Studios

C) Sun, Jul 17, 2011 at 11:12 AM Canpages Script Arron Robinson <arron.robinson@gmail.com> To: Jamie Erickson <Jamie@bear-studios.com>, Curt Spurging <curtspurging@hotmail.com> Thanks Jamie, we’re looking over the script this weekend. We’ve also got a board artist ready to roll out some thumbnails like we discussed. We’ll talk early this week about our next creative meeting, and should have some thumbnails to help move things along.

Regards; Arron

D) Mon, Jul 18, 2011 at 1:18 PM Jamie Erickson <Jamie@bear-studios.com> To: Arron Robinson <arron.robinson@gmail.com> Sounds good. Our clients are eagerly awaiting a final budget so the sooner we hear back from you guys the better. Thanks!!

E) Mon, Jul 18, 2011 at 2:52 PM Arron Robinson <arron.robinson@gmail.com> To: Jamie Erickson <jamie@bear-studios.com> Hi Jamie, all set with the budget and

schedule on our end. We’re ready to go once we have the green light from the client. Please find our proposal attached, let me know if everything is in order. Talk to you soon. Regards; Arron

F) Mon, Jul 18, 2011 at 2:58 PM Jamie Erickson <jamie@bear-studios.com> To: Arron Robinson <arron.robinson@gmail.com> Hey guys, Thanks for sending this to us so quickly. Unfortunately, I can tell from first glance that this isn’t going to work within our budget. We had a feeling this may happen, as we are working with a client with a pretty small budget. Their entire budget is $10,000, so we were hoping to hire someone for $4,500 max as there is going to be a lot of work on our side as well.

We will have to figure out something else for this video because like I said, we have a very limited budget to work with on this. I wouldn’t expect you to cut your estimate in half because lets face it, we all need to make some money on this.

Hopefully there will be a larger project that comes up in the future that we can have you guys work on as you are extremely talented. Thanks! Jamie

G) Mon, Jul 18, 2011 at 3:02 PM Jamie Erickson <jamie@bear-studios.com> To: Arron Robinson <arron.robinson@gmail.com> I just spoke with Alex, and he was wondering if you guys could do it for $8,500. We would really like to work with you guys, and we hope that this leads to bigger and better projects for both of us down the road as we would use this on our reel. Let me know your thoughts on this offer. It’s the best we can do with the budget we have… Thanks, Jamie

H) Tue, Jul 19, 2011 at 11:15 AM hold off Jamie Erickson <jamie@bear-studios.com> To: Arron Robinson <arron.robinson@gmail.com> Hey Arron- Hold off everything until I call you. I am still waiting to hear back from Canpages…grrrr. Jamie Bear Studios

I) Tue, Jul 19, 2011 at 11:16 AM hold off Arron Robinson <arron.robinson@gmail.com>

To: Jamie Erickson <Jamie@bear-studios.com> sure thing, thanks Jamie. Arron

J) Tue, Jul 19, 2011 at 11:20 AM Jamie Erickson <jamie@bear-studios.com> To: Arron Robinson <arron.robinson@gmail.com> Sorry about this run around, its so frustrating when you have clients like this. I’m sure this will move forward though. People just don’t seem to realize how much things cost. Talk soon. Jamie

K) Tue, Jul 19, 2011 at 11:21 AM Jamie Erickson <jamie@bear-studios.com> To: Arron Robinson <arron.robinson@gmail.com> He is going to phone me on Thursday, so we will postpone our pizza/creative meeting until the following week once I’ve got more details. Jamie

L) Tue, Jul 19, 2011 at 3:52 PM I’m 99% sure the Canpages is a go… Jamie Erickson <jamie@bear-studios.com> To: Arron Robinson <arron.robinson@gmail.com> I will let you guys know tomorrow and hopefully we can still meet at 12 on Thursday for pizza and a creative meeting. Jamie Bear Studios

M) Tue, Jul 19, 2011 at 4:55 PM Arron Robinson <arron.robinson@gmail.com> To: Jamie Erickson <Jamie@bear-studios.com> That’s great, let’s keep our fingers crossed. We’re still up for the Thursday meet. Arron

N) Thu, Jul 21, 2011 at 10:36 AM Arron Robinson <arron.robinson@gmail.com> To: Jamie Erickson <Jamie@bear-studios.com> Cc: Curt Spurging <curt@planbcartoons.net> Hey Jamie, Curt and I would like to swing by sometime today to show you some of the development work we’ve done for the Canpages spot. Regardless of where the client wants to go with this, we’d still like to show you guys a glimpse of our creative process. Did you still want to do a lunch? Regards; Arron

O) Thu, Jul 21, 2011 at 10:38 AM Jamie Erickson <jamie@bear-studios.com> To: Arron Robinson <arron.robinson@gmail.com> Yes of course…come for 12pm, I’m ordering pizza. :)

P) Thu, Jul 21, 2011 at 10:41 AM Arron Robinson <arron.robinson@gmail.com> To: Jamie Erickson <Jamie@bear-studios.com>

We’ll see you then. AR

Q) Thu, Jul 21, 2011 at 1:45 PM Canpages Jamie Erickson <jamie@bear-studios.com> To: Arron Robinson <arron.robinson@gmail.com> Cc: Alex Greenberg <alex@bear-studios.com> Hi guys- Thanks for the great presentation today. Sorry I was so busy…I was having to deal with a bunch of very last minute stuff. I have cc’d Alex on this email, please write him directly with regards to anything you need creatively etc. Please do cc me on all e mails though so I am in the loop. I will let you know as soon as I have talked to the client. Thanks again you guys!! Jamie Bear Studios

R) Fri, Jul 22, 2011 at 3:22 PM Canpages Character Arron Robinson <arron.robinson@gmail.com> To: Jamie Erickson <Jamie@bear-studios.com>, Curt Spurging <curt@planbcartoons.net> Hey Jamie, I’ve attached some character designs for you guys to look at. This level of detail is a little closer to the “Bill” example. You can mix and match any of the elements you see and come up with a custom design and we’ll go with that. We wanted to get this to you before the weekend so we could get going on the boards. Let me know if you have any questions. Thanks again for the meeting yesterday.

Regards; Arron 3 attachments: Char_Design_01.jpg, Char_Design_02.jpg, Char_Design_03.jpg

S) Fri, Jul 22, 2011 at 3:48 PM Canpages Character Jamie Erickson <jamie@bear-studios.com> To: Arron Robinson <arron.robinson@gmail.com> Hey Arron, they are all great. I think we like guy #1, but with the tie on the guy below. Make sense? From Alex Greenberg <alex@bear-studios.com> Date: July 22, 2011 3:46:27 PM PDT To: Jamie Erickson <jamie@bear-studios.com> Cc: Chris Wilkinson <chris@bear-studios.com> Subject: Re: Canpages Character I think Num 1 as well but only the tie black like this On 2011-07-22, at 3:40 PM, Jamie Erickson wrote: Take a look and let me know which you think we should go with…I like guy #1.

T) Tue, Jul 26, 2011 at 3:55 PM Canpages Storyboard Arron Robinson <arron.robinson@gmail.com> To: Jamie Erickson <Jamie@bear-studios.com> Cc: Curt Spurging <curt@planbcartoons.net> Hi Jamie, I’ve attached the final storyboards for the Canpages spot. We’ll worry about the invoicing in the next couple of days. Let us know what you think.

Regards; Arron Attached: PlanB_Canpages_Storyboard.zip 7475K

U) Wed, Jul 27, 2011 at 1:48 PM Jamie Erickson <jamie@bear-studios.com> To: Arron Robinson <arron.robinson@gmail.com> Hi Arron- They look awesome!! I spoke with Cathy at Canpages and she apologized on behalf of John. She said she was going to have a word with him to ensure this never happens again. The good news is, she has another video coming down the pike so maybe we can incorporate this idea into the new job whenever we get it. Talk soon, Jamie [ 5 ] On Wednesday, August 3, 2011, Mr.

Robinson sent the following email to the Defendant: Canpages invoice / 3D Freelance Arron Robinson <arron.robinson@gmail.com> To: Jamie Erickson <Jamie@bear-studios.com>, alex@bear-studios.com, Curt Spurging <curt@planbcartoons.net> Hey Guys, It’s too bad things didn’t work out with the Canpages project. I’ve attached our invoice which directly reflects our cost to have the board done, and nothing more. I included a copy of our board artist’s invoice to keep things transparent. Even though we didn’t move forward with the project in it’s entirety, we’re just glad we got to connect.

I’m always looking for freelance 3D work. You guys mentioned having projects from time to time with 3D content. If you need any modelling, rigging or animation, let me know. Regards; Arron 2 attachments PlanB_invoice_CP0308_Canpages.pdf, Canpages_Invoice_072611.pdf [ 6 ] On August 8, 2011, Mr. Wilkinson sent the following email to the Claimants:

Mon, Aug 8, 2011 at 2:04 PM Storyboard / Thumbnail Invoice Chris Wilkinson <chris@bear-studios.com> To: Arron Robinson <arron.robinson@gmail.com>, Curt Spurging <curt@planbcartoons.net> Cc: Jamie Erickson <jamie@bear-studios.com> Hey guys, Jamie and I have gone through this issue quite a few times since our conversation in an effort to figure out the best solution for all.

The reason we are having trouble with this invoice is that we didn’t think anyone would be incurring hard costs at the beginning of this pitch – we anticipated all of us putting in some work to get us the job and a great finished product, but we were under the impression that it was all in-house – and that no outside hard costs were involved. We are completely chalking this up to a communication shortfall due to this being a new relationship.

So here is what we suggest – we will pay half of the invoice for the storyboards and thumbnails, and work hard to secure future jobs that we can work together on and help both of us recoup the dollars we lost on this project (and then some). We think this is fair given the circumstances, and we are also confident that there will be opportunities in the near future for us to work together on great projects, obviously with clearer communication on expectations. Let us know if you guys can work with this. Look forward to hearing from you.

Chris Wilkinson Bear Studios [ 7 ] That email was followed by a response from the Claimant on same date, as follows: Mon, Aug 8, 2011 at 3:39 PM Storyboard / Thumbnail Invoice Arron Robinson <arron.robinson@gmail.com> To: Chris Wilkinson <chris@bear-studios.com> Cc: Curt Spurging <curt@planbcartoons.net>, Jamie Erickson <jamie@bear-studios.com> Hi Chris, Here’s where we’re at. Plan B Cartoons expects payment in full. There was a clerical error on the date of the invoice we submitted. Please find attached, the revised invoice which includes a date change from July 3 to August 3.

If no payment is received by September 3, we will need to take appropriate actions to re-coupe our costs.

Feel free to contact us if you have any concerns. Regards; Arron Robinson / Curt Spurging [ 8 ] Mr. Spurging agrees that the Defendant agreed to the contract price based on the email dated Monday, July 18, 2011 (4G above) and, as a result, the Claimants prepared the thumbnails sketches on a tight timeline. [ 9 ] Mr. Spurging said that Jamie Erickson (“Ms. Erickson”), on behalf of the Defendant, approved the design and told him to proceed with the storyboards. As the storyboards were being finished, the Claimants were contacted by Ms. Erickson, who advised that the project had been dropped. Mr.

Spurging said that Ms. Erickson told him to send an invoice to Defendant and they would be paid their hard costs, i.e. referring to their out-of-pocket expenses. [ 10 ] During cross-examination, Mr. Spurging was asked if there was a specific conversation with Ms. Erickson in which the Claimants were aware that there was approval for the project. As I understood from Mr. Spurging’s answer, he did not indicate that there was specific approval. [ 11 ] It was suggested to Mr. Spurging by Mr. Wilkinson that there was a misunderstanding regarding his communication with Ms. Erickson. Although Mr.

Spurging did not believe that to be so, this appears to be the crux of the case. [ 12 ] The question is whether there was anything said between Mr. Spurging and Ms. Erickson in addition to the emails to determine if there was a contract. [ 13 ] Mr. Wilkinson testified on behalf of the Defendant. He referred to the emails I have set out above and said that the Defendant did not enter into a contract. [ 14 ] During cross-examination, Mr. Wilkinson said that the Defendant never requested the Claimants to do any work.

Rather, he said that the Claimants prepared work on their own initiative to demonstrate their creative talents to the Defendant, not only with respect to the potential Canpages’ campaign, but also, so that the Claimant would be considered for other creative work. [ 15 ] As well, Mr.

Wilkinson said that he was not aware that the Claimants had retained outside artists to prepare any material for the proposal. [ 16 ] I am of the opinion that no contract was formed between the Claimants and the Defendant. [ 17 ] The offer from the Defendant to the Claimants in the email dated Monday, July 18, 2011 (see 4G above), was not accepted by the Claimants prior to the email sent by Ms. Erickson on Tuesday, July 19, 2011 (see 4H above), in which Ms. Erickson advised the Claimants to “Hold off”. This was acknowledged by Mr.

Robinson by an email response on July 19, 2011 (see 4 I above). [ 18 ] The emails which discussed the meeting that was to take place between the parties were nothing more than the Claimants requesting to present their work to the Defendant. The email from Ms. Erickson to the Claimant on July 21, 2011 did not suggest that there was a contract, as alleged by the Claimants. [ 19 ] I have concluded that the drawings and storyboards that the Claimants sent to the Defendant were undertaken by the Claimants on their own initiative, and not because there was a contract between the Claimants and the Defendant.

The email dated Wednesday, July 27, 2011 was confirmation from the Defendant that the Claimants’ work was excellent, and that they would be called upon by the Defendant if there was a new project. [ 20 ] Accordingly, the claim is dismissed. _____________________ Lawrence A. Kahn