Sunner v. Shahidi Date:, 2012 BCPC 249

Citation: Sunner v. Shahidi Date: 20120719 2012 BCPC 0249 File No: 1138136 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: SWARNI SUNNER CLAIMANT AND: FARZAD FRED SHAHIDI DEFENDANT REASONS FOR JUDGMENT OF HER WORSHIP BARBARA CORNISH Appearing on their own behalf: Swarni Sunner Appearing on their own behalf: Farzad Shahidi Place of Hearing: Vancouver , B.C. Date of Hearing: June 20, 2012

Date of Judgment: July 19, 2012 Introduction [ 1 ] In this Action the Claimant, Swarni Sunner says that she entered into a verbal contract with the Defendant, Farzad Shahidi pursuant to which she was to be paid half of the construction cost of a new fence dividing their properties in Vancouver (the “Fence”). She claims that the Defendant has failed to pay his half in the amount of $1,004.64 and brings this Action for recovery of that amount. She further seeks applicable filing and service fees.

The Claimant’s Position [ 2 ] At trial, there were three witnesses in support of the Claimant’s position: the Claimant, herself, Ms. Laura Holland, the Claimant’s tenant (at the relevant time the Claimant did not reside in the property), and Mr. Baljeet Sahota, who constructed the Fence. (

a) The Claimant’s Evidence [ 3 ] The Claimant’s evidence is that the Defendant’s mother-in-law approached her in March 2011 regarding the fence dividing their respective properties. The fence was in a state of disrepair, and the mother-in-law was concerned for the safety of her grandchildren who frequently played in the Defendant’s backyard. The Claimant says the mother-in-law told her the Defendant and his wife wanted the Claimant to obtain an estimate for a new fence and that the Defendant was willing to pay for half of the cost of the new fence. [ 4 ] Later that month, the Claimant contacted Mr.

Baljeet Sahota, principal of B&S Landscaping Ltd., and requested an estimate for the construction of the Fence, which she received in April, 2011. The Claimant says she went to the Defendant’s house sometime in early April or May, 2011 (she could not recall which month). She said that this visit would have occurred after she picked up rent from Ms. Holland, which she usually did during the first five days of any given month. She says she rang the doorbell, which was answered by the Defendant’s wife who summoned the Defendant. [ 5 ] The Claimant says she provided the Defendant with Mr.

Sahota’s quote and suggested that the Defendant also obtain a quote to ensure fairness between them. She says that he declined to do so. Rather, he accepted the Claimant’s quote and agreed to pay half of that amount. [ 6 ] The Fence was not erected immediately and, on May 18, 2011, the Claimant’s tenant, Ms. Laura Holland, notified her that the Defendant’s mother-in-law had requested the Claimant’s phone number and wished to speak with her regarding the Fence. Ms.

Holland was reluctant to provide the Claimant’s phone number without her consent and so she simply passed the message along to the Claimant. [ 7 ] In an email dated June 2, 2011, the Claimant informed Ms. Holland that she had attempted to phone the Defendant at his home, but that she had been unable to reach him. She informed Ms. Holland that the Fence was likely being put up later that week, and asked Ms. Holland to pass this information along to the Defendant if she happened to see him. [ 8 ] In a further email on June 23, 2011, the Claimant asked Ms. Holland whether the Fence had been installed. Ms.

Holland replied later that day, advising that the mother-in-law remained concerned about the condition of the Fence, and asked why there had not been a response from the Claimant about its construction. [ 9 ] There is no dispute on the evidence that the Fence was installed in late August 2011. [ 10 ] In September 2011, the Claimant says that she informed the Defendant that the invoice for the Fence installation was forthcoming.

Her evidence was that the Defendant then refused to pay for his share, denied that anyone in his family had spoken to her about the Fence, and claimed that even if they had, they never spoke to him on the topic. [ 11 ] At trial, the Claimant also produced a number of photographs of the Fence. She pointed out that the Fence material was the same as that used on the Defendant’s property which she maintained supported her position that she had met and consulted with the Defendant in advance of construction. (

b) The Evidence of Laura Holland [ 12 ] Ms. Holland provided evidence regarding her involvement in the community and her maintenance of the property during the relevant time. She also testified that she had participated in several conversations about the Fence both with the Defendant’s mother-in- law and with the Claimant. She stated that the Defendant’s mother-in-law had requested the Claimant’s telephone number on several occasions and had also approached her children and roommates with similar requests. Ms. Holland confirmed that she did not speak to the Defendant directly about the Fence and had not witnessed any conversation between the Claimant and the Defendant on the issue. (

c) The Evidence of Baljeet Sahota [ 13 ] Mr. Baljeet Sahota is the principal of B&S Landscaping which performed the Fence installation work. He testified that the Claimant requested a quote for the Fence in early April 2011, and that he provided her with one that same month. No document was produced at trial and I infer that the quotation was verbal. [ 14 ] Mr. Sahota also stated that he told the Claimant that because of where the Fence was situated, it was the Defendant’s responsibility to pay for the replacement and that she had told him that the Claimant had agreed to pay half.

No evidence was introduced to prove the boundary between the properties. I am unable to conclude, therefore, that the location of the Fence either supports or detracts from the Claimant’s claim. [ 15 ] Mr. Sahota confirmed that the original fences belonging to the respective parties were of different types. He testified that the

Claimant requested that the Fence material match the other fences on the Defendant’s property rather than those on her property. He builtthe Fence in August 2011, and sent an invoice to the Claimant in October. The Defendant’s Position [16] Both the Defendant and his wife, Ms Rozita Shahidi, gave evidence at trial. (

a) The Defendant’s evidence [17] The Defendant’s evidence was that neither he nor his wife had ever spoken to the Claimant about construction of the Fence andhe specifically denied entering into any agreement with the Claimant to share the cost of the construction. [18] The Defendant also flatly denied that the Claimant ever spoke to him about Mr Sahota’s estimate. His evidence was that theClaimant did not speak with him until September 2011, after the Fence had already been built.

During this conversation, he says theClaimant asked him to pay for half of the cost of installation, which he refused to do. [19] The Defendant conceded that his mother-in-law may have spoken with the Claimant and Ms. Holland about the Fence. However,he stated that he was not on good terms with his mother-in-law; that she no longer lived with his family; and that she never spoke to himabout paying for half of the Fence cost. In short, his position was that if his mother-in-law had engaged in any conversations about whowas to pay for the Fence, she had done so without his knowledge or consent. (

b) The Evidence of Mrs. Shahidi [20] Ms. Shahidi denied that she answered the door to the Claimant in April or May 2011 and further denied that any conversationabout the Fence had taken place at that time. She also testified that, contrary to the Claimant’s evidence, their doorbell did not work atthe time the Claimant said she had visited them. She corroborated the Defendant’s evidence that he and his mother-in-law had a poorrelationship and did not speak to each other. (

c) The Involvement of the Defendant’s Mother-in-Law [21] As noted, both the Claimant and Ms. Holland gave evidence that the Defendant’s mother-in-law made frequent inquiries aboutthe status of the Fence construction and, according to the Claimant, had expressed a willingness on the part of the Defendant to share thecost of construction. As noted, the Defendant says that he had a poor relationship with his mother-in-law and that, in any event, she hadno discussions with him on this issue. Given the clear conflicts in the parties’ evidence it may have been helpful to hear from thiswitness.

Unfortunately, however, she did not give evidence at the trial. Whether or not that is so, it remains that the Claimant says shemade an agreement directly with the Defendant, himself and not with his mother in law. The Issue To Be Decided [22] The sole issue in this case therefore is whether the Defendant entered into a verbal contract with the Claimant regarding theshared cost of the Fence. That is, was there an offer, accepted by the Defendant, that the two would equally bear the cost of constructinga new fence? Applicable Legal Principles [23] As in any Action, the onus is on the Claimant to prove her case.

Thus, in order to succeed with her claim, the Claimant mustestablish on the balance of probabilities that she and the Defendant verbally contracted to each pay for half of the cost of the installationof the Fence.

The term “balance of probabilities” means that it is not sufficient if both parties provide equally plausible versions ofevents; in order to succeed, the Claimant must establish on the evidence that her version of events is more probable than that of theDefendant. [24] As noted above, the Defendant’s assertion is that such an agreement never occurred and indeed that he never spoke with theClaimant directly about the Fence until after it was constructed. In contrast, the Claimant says that she spoke with the Defendant,provided him with a verbal estimate, and that he agreed to pay for half.

There are no witnesses to this alleged verbal agreement, and littledocumentary evidence which assists in determining which version of events is more likely. While the evidence of Ms. Holland and Mr.Sahota establishes certain contextual facts, both admitted they did not witness any conversation between the Claimant and the Defendantin which an agreement was reached that the Defendant would pay half of the cost. In short, this is what is often referred to as a “he said,she said” case.

As a result, this case rests heavily on the credibility of the parties. [25] The Courts have consistently held that credibility disputes should not be resolved solely on the basis of personal demeanour.Rather, each party’s version of events must be examined to assess whether it reasonably accords with all of the other facts and conditionsexisting at the time. The applicable test is set out in Faryna v.

Chorny, (BC CA), [1951] B.C.J. 152 (C.A.), as follows: “The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience incombining skilful exaggeration with partial suppression of the truth.

Again a witness may testify what he sincerely believes to be true,but he may be quite honestly mistaken. For a trial Judge to say “I believe him because I judge him to be telling the truth”, is to come to aconclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.” [emphasis added] Discussion

[ 26 ] The verbal contract at issue in this case is alleged to have come into existence during a meeting in either early April or May 2011 when the Claimant says she attended the Defendant’s house and spoke to him directly about Mr. Sahota’s quote for the Fence construction. As noted, the Defendant flatly denies the existence of any agreement but also denies that the parties even met in April or May 2011. Plainly, both versions of events cannot be correct.

I am therefore required to examine the evidence as a whole to determine if there are any other facts or circumstances which establish that the Claimant’s version of events is more likely than that of the Defendant. [ 27 ] As noted, there were no witnesses to the alleged agreement between the parties. Nor are there any documents which establish either the existence of an agreement or its terms.

In addition to her account of the alleged meeting between the parties, the Claimant also provided photographs of the Fence to prove that the material used was the same as that on the Defendant’s property rather than other fences on her property. While there was no evidence at trial of any discussion or agreement between the parties regarding what materials were to be used, the Claimant argued that the use of the same fencing material, in and of itself, supported her position that she consulted with the Defendant prior to construction.

That is, she maintained that it was reasonable to infer an agreement between the parties regarding the Fence construction because of the use of fencing material identical to that already existing on the Defendant's property. [ 28 ] In my view, while the choice of Fence material could suggest some prior involvement or discussion with the Defendant, I am not persuaded that this fact alone tips the balance and establishes the central issue in this case - that the Defendant not only discussed the Fence but that he agreed to pay for half of the cost. [ 29 ] The Claimant does not say that she discussed the type of fence to be installed with the Defendant during their conversation of April or May 2011.

I have found that the quote from B&S Landscaping Ltd. was provided verbally to the Claimant. If the type of Fence material was to weigh in the Claimant’s favour, I would have expected evidence from the Claimant that this issue was part of the April or May 2011 conversation with the Defendant. In my view, it is unlikely the Defendant would have agreed to pay for half the cost of the Fence without discussion about the type of fence to be constructed. [ 30 ] Photographs of the two properties were in evidence before me. The Defendant’s fence was newer and in better condition than the fence on the Claimant’s property.

It is at least equally plausible that fencing material matching the Defendant’s existing fence was chosen for aesthetic or other reasons. [ 31 ] Examining the evidence as a whole, it appears clear that although the parties were neighbours, they were not particularly familiar with each other. The Claimant did not live in her property and the parties had little day to day contact. Nor, it appears, were they on particularly good terms. Indeed, much of the Defendant’s evidence related to his dissatisfaction with the state of repair of the Claimant’s property.

Given the apparently tenuous relationship between the parties and the absence of any evidence suggesting the Defendant knew or had any prior dealings with Mr. Sahota, it is difficult to accept that based on a short discussion at the doorstep, the Defendant would have accepted the Claimant’s single verbal quote for the cost of the Fence and indeed, specifically declined to obtain any other quotes, before agreeing to pay half of the cost of an unspecified product in the amount of approximately $1,000.00.

In my view, this type of conduct connotes a level of trust or at the very least, familiarity, which the evidence does not establish was the case between these parties. [ 32 ] I wish to add only this. In my judgment, the Claimant probably comes to this Court with an honest belief that she and the Defendant had reached an agreement. Based on that belief, she incurred a significant expense that, one might conclude, benefitted both parties. The Defendant demonstrates no less of an honest belief in his convictions.

In a case such as this, I am bound to search for evidence in the surrounding circumstances to resolve the competing evidence of the two parties. Without that evidence, the Claimant, who bears the burden of proving her claim, cannot succeed.

Summary and Conclusion [ 33 ] In

summary, I find that the Claimant has not proven on a balance of probabilities that the Defendant entered into a verbal contract with the Claimant to pay for half of the purchase price of the fence. Accordingly, the claim is dismissed. _______________ Barbara Cornish Adjudicator