De Costa and De Genova v. Banh Date:, 2013 BCPC 366

Citation: De Costa and De Genova v. Banh Date: 20130130 2013 BCPC 0366 File No: 12-41245 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: BLAIR DE COSTA and MELISSA DE GENOVA CLAIMANTS AND: LOI D. BANH doing business as BLUECORE MEDIA DEFENDANT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.F. GIARDINI Counsel for the Claimant: J. Kuroyama Appearing for the Defendant: No one appearing Place of Hearing: Vancouver , B.C. Dates of Hearing: January 7, 30, 2013

Date of Judgment: January 30, 2013 NATURE OF THE APPLICATION [ 1 ] This is an application by Melissa De Genova and her husband, Blair De Costa, for a default judgment against Loi D. Banh, doing business as Blue Core Media. [ 2 ] The claimants are asking this court to order the following by way of damages: return of a deposit of approximately $1,300 (I am rounding up the numbers for ease of reference); an award for mental distress up to the maximum allowed under the jurisdiction of this court which, in light of the deposit amount, would be approximately $23,680; as well as disbursements and court-ordered interest.

BACKGROUND [ 3 ] The claim by Ms. De Genova and her husband arises out of an agreement they had with the defendant to provide his services for taking and subsequently preparing a video of their wedding. [ 4 ] Ms. De Genova and Mr. De Costa were married on July 7, 2007. Well before the wedding date, and after Ms. De Genova had done some background checking as to who would be the most appropriate person to do the video, she and her husband approached Mr. Banh and entered into an agreement for him to provide a video of their wedding. The agreement was that Mr.

Banh would attend and videotape the wedding, which included both the wedding ceremony and the reception, and provide Ms. De Genova and Mr. De Costa with a finished videotape. The cost quoted to them was $4,400. [ 5 ] I will refer to Ms. De Genova and her husband as "the couple"; it will be easier than constantly repeating their names. The agreement with the couple was that the video would be completed approximately six to nine months after the wedding. [ 6 ] The couple paid a deposit of $1,320.

This was paid on or about February 27, 2007, when they signed the agreement, with the balance of $3,080 to be paid prior to the wedding. [ 7 ] In an affidavit to support this application, Ms. De Genova explained it was her understanding from speaking with Mr. Banh that he had a very busy workload. She had some concerns about getting the video back in a timely manner, so an agreement was made that the balance would be paid upon receipt of the video rather than prior to the wedding. [ 8 ] Ms. De Genova explained here this morning under oath that the arrangement with the videographer, Mr.

Banh, was that he was to follow the couple around and take videos of all the important parts of the ceremony and the reception involving the couple. The couple had also retained the services of a photographer who was going to provide photographs. The assignment given to the photographer was that he was to capture some of the events involving the couple but that his responsibility was to mingle with the crowd and take photographs of those who were attending the event. [ 9 ] Ms.

De Genova testified this morning, and this is also in her second affidavit filed in January 2013 in this matter, that because the couple was going to have a videographer, they contracted for a much smaller wedding package. The package was smaller in terms of what photographs were to be taken and also what parts of the ceremony and the reception were to be photographed. [ 10 ] Ms. De Genova explained that the video was very, very important to her and her soon-to-be husband. There were many reasons for that.

One of the reasons was that she had family members in Switzerland who were not going to be able to attend the wedding because one of the family, a cousin, was dying of cancer. The cousin could not travel, so the rest of the family did not want to leave her in Switzerland while they attended the wedding. [ 11 ] Other evidence provided this morning is that Mr. Banh, in his discussions with the couple, specifically asked that during the wedding ceremony and during the reception, no one else was to take videos or pictures.

He explained to the couple that this would cause problems in terms of being able to complete his work. Therefore he asked the couple to ensure this was taken care of. This was not an issue raised by the couple. Accordingly, announcements were made both at the wedding ceremony and at the reception by the couple’s wedding planner to this effect, asking guests not to take pictures or videos. In fact, Ms. De Genova explained two announcements had to be made at the cake-cutting part of the ceremony. Mr.

Banh felt he could not get an appropriate recording of the couple cutting the cake because there were so many people around trying to take their own pictures and/or videos. The importance of that request in this application is that because the couple complied, the couple has been left with no other sources, or very few sources, of photographs or videos of their wedding other than those of the professionals they retained for the wedding. [ 12 ] Ms. De Genova has deposed in her affidavit that Mr. Banh attended the wedding on July 7, 2007, and videotaped both the wedding ceremony and the reception.

Between July 7, 2007, and October 3, 2008, over a one-year period, Ms. De Genova telephoned Mr. Banh on several occasions to ask about the video. Each time she telephoned, she got his voicemail recording and left him a message to call her back. He did not return her calls. [ 13 ] On October 3, 2008, she followed up with an email and received an email from Mr. Banh on October 6, 2008. That email advised he hoped to have the wedding video completed by the end of the month with all the raw footage that was shot. The video was not completed by the end of October 2008. [ 14 ] Ms. De Genova was reluctant to push Mr.

Banh too much. She was concerned she might upset him if she pestered him and would not get her video or that it would not be of the quality she was expecting. So there was a period of time where there were no communications with Mr. Banh. [ 15 ] In any event, in the summer of 2011, there was communication between Ms. De Genova and Mr. Banh. Again, it was via email. She had sent him a list of songs she wanted to accompany the video. In an email, Mr. Banh said he was hoping he could get the

video done in a month’s time, once he began. He indicated that in the previous February, which I take to mean February 2010, he had had a conversation with Ms. De Genova’s mother. At that time he had told Ms. De Genova’s mother he had started renovations and was moving offices and all projects were delayed. He wrote in his email that the renovations to his office were still continuing and he would be fit in the completion of the video sometime between the end of August, when this email was sent, and mid-September 2011. [ 16 ] On September 12, 2011, Ms. De Genova sent Mr.

Banh an email asking for an update about the video. She did not receive a response, and neither she nor her husband have heard from him since. The couple retained legal counsel who, in July 2012, wrote to Mr. Banh and emailed him at the two email addresses that were available to the couple. There was no response to that letter. [ 17 ] Mr. Banh has not replied to the claim or the application now before the court. IMPORTANCE OF VIDEO [ 18 ] I will now address the importance of the video to Ms. De Genova and her husband and their families. This was explained in Ms.

De Genova’s affidavit and in the viva voce evidence she gave today on hearing this application. Ms. De Genova explained it was very important that the memories of their wedding be captured on videotape. She decided to go to a professional because she did not want to entrust that role to an amateur who might not get it right. Unfortunately, even though she retained a professional, she did not get the video. [ 19 ] In her affidavit, Ms. De Genova reported that she has experienced stress and anxiety. She had expected the video Mr.

Banh was supposed to prepare to be a source of joy to herself and to her husband, Blair, in the future because the video was one way of re-living the happy memories from the wedding. In her first affidavit she noted the video of the wedding was something that would have been of great sentimental value to her and her husband. She pointed out that her wedding to her husband, Blair, is a one-time event and they have no way of obtaining other video footage. [ 20 ] In the second affidavit, Ms.

De Genova pointed out that she and her husband do not have any other videos or video clips of the wedding other than the video taken by Mr. Banh. In the second affidavit she deposed to the fact that Mr. Banh had asked them to ensure that none of the wedding guests took videos or photographs because they would get in his way and impede his ability to properly videotape the wedding. [ 21 ] In the second affidavit, Ms. De Genova also deposed that had she known she and her husband would not be getting the video, they would have made different arrangements with the photographer.

They would have ordered a full photography package. Instead, they only ordered a less extensive photography package, a small photography package. The couple do not have photographs of the last moments when they were getting ready to attend the ceremony or of events at the wedding reception. [ 22 ] Ms. De Genova also explained in her affidavit, and again here this morning, that one of the main reasons she and her husband wanted a video was so that they could have a record of their wedding vows. They considered this the most important part of the wedding.

They wanted to preserve other memories related to the wedding, as well as this important moment, for themselves and for their families. [ 23 ] As I indicated, Ms. De Genova is seeking a damage award for the deposit monies paid, damages for mental distress, punitive damages, and disbursements. Ms. Kuroyama, her counsel, provided a book of authorities which contains four relatively recent cases, three of them from this court, that deal with the same or similar applications. [ 24 ] The first one is a decision of my brother Judge Skilnick in Chilliwack, British Columbia, from February 2007. The decision is Klaus v.

Taylhardat (c.o.b. Vidaphoto Photography), [2007] B.C.J. No. 211 . The facts of that case are eerily, although not 100 percent, similar to the facts of this case. The claimants in Klaus brought an application for default judgment against the defendant photographer. They were seeking return of monies paid to the defendant, punitive damages, emotional damages, as well as their filing and service fees. [ 25 ] In Klaus , the claimants signed a contract with the defendant for photography services during the wedding. The defendant promised the delivery of the photographs within six weeks.

He attended the wedding and took photographs but the couple in Klaus never received them. [ 26 ] Klaus is useful because it provides an extensive review of the law. Judge Skilnick has reviewed the law regarding emotional stress and punitive damages. He points out that damages for emotional stress and punitive damages are different concepts in law and can attract separate heads of damage. He reviews, in detail, decisions of other B.C. courts dealing with similar situations. The cases he reviews and summarizes are Wilson v. Sooter Studios , [1998] B.C.J. No. 2531 (B.C.C.A.) ; Kressin v.

Memorial Gardens (BC) Ltd., [2004] B.C.J. No. 236 ; Warrington v. Great West-Life Assurance Company , [1996] B.C.J. No. 1994 (B.C.C.A.) ; and Wharton v. Tom Harris Chevrolet Oldsmobile Ltd., [2002] B.C.J. No. 233 (B.C.C.A) . [ 27 ] Judge Skilnick says this at paragraph 12: [12] These cases illustrate the wide range of awards for this type of loss, spanning from nominal damages of a few hundred dollars upwards to $10,000. I am mindful that, in Wilson v. Sooter Studios , supra , and in Warrington v.

Great West Life , supra , our Court of Appeal has set out the principle that courts should exercise caution in the awarding of damages for mental distress. [ 28 ] At paragraph 13 (I am not going to read from it), he notes that the degree of mental distress that can be reasonably expected will vary from situation to situation. In Klaus , he ordered a refund of the monies paid by the claimants to the defendant, awarded $7,500 for mental distress, $2,500 for punitive damages, and filing fees and service fees. [ 29 ] The next case is Kressin v. Memorial Gardens (BC) Ltd.

That is a decision of my brother Judge Gill (now Associate Chief Judge). This case dealt with a claim for damages against Memorial Gardens. Memorial Gardens is a funeral home. The damages sought

were for failing to videotape the funeral services as promised, mishandling the burial ceremony, and providing burial plots for theclaimant and her late husband that were different from those agreed to. [30] In Kressin, at paragraph 35, Judge Gill said the claimant was deprived of witnessing her husband’s actual burial, both in personand on videotape. Her anguish over these issues was genuine, enduring, and a reasonably foreseeable consequence of the breaches bythe defendant. She deserved an award recognizing that.

He awarded $10,000 for the delay in internment of the claimant’s husband andfailure to videotape the service. He characterized that as aggravated damages. He also awarded $2,000 in punitive damages. [31] The last case I will refer to is Wepruk v. Great Canadian Van Lines Ltd., [2009] B.C.J. No. 1140. The trial decision was adecision of my brother Judge Woods in New Westminster. The second decision is the appeal reasons of Mr. Justice Pitfield of ourBritish Columbia Supreme Court, Wepruk v. Great Canadian Van Lines Ltd. [2010] B.C.J. No. 74.

In that case, the claimant hadcontracted with the defendant movers to pick up certain belongings from Ontario and deliver them to British Columbia. The belongingsincluded a piano and a chest of drawers. The piano was lost by the movers. The piano was a 1924 Waltham Warfield piano that hadbelonged to the great-grandmother of the claimant. It was in relatively good shape. [32] At paragraph 62, Judge Woods said: [62] I view the contract between Ms. Wepruk and Great Canadian as a “peace of mind” contract as that phrase is used by the Court ofAppeal in Wharton.

She entrusted to Great Canadian the responsibility of transporting the Antique Piano safely from Devlin, Ontario toher new home in Burnaby, B.C. within a clearly specified time window. The instrument was, objectively, an asset of considerablemarket value but its sentimental value to Ms. Wepruk transcended its market value. Great Canadian knew that. [33] In that case, Judge Woods awarded $4,500 general damages. He ascertained that to be the cost of replacing the piano withsomething similar. He also awarded $8,000 damages for mental distress.

He did not award any punitive damages. [34] I have also referred to a decision that was not provided by counsel but of which I am aware - Richardson v. A.E.A. DesignerGroup Inc., [2007] O.J. No. 5036. This is a decision of the Ontario Superior Court of Justice Small Claims Division. In Richardson, theplaintiffs claimed $2,950 for breach of contract and $7,050 for mental distress. They had entered into a videography agreement with thedefendant to video their wedding and to produce and deliver a DVD of this important event.

They paid a deposit of $500 with thebalance due upon delivery of the purportedly completed DVD. [35] I am not going to go through the facts of that case, but the DVDs that were provided did not function properly. It was pointedout that the defendant knew about the potential compatibility problems with the DVD production they were undertaking. Thecompatibility problems were between the defendant’s machinery and machinery on which their clients could play the DVD.

The judgenoted there was no evidence presented by the defendant regarding alternate backup protocols for the videos it recorded. [36] At paragraph 14 of Richardson, Deputy Judge Gollom said: 14 The plaintiffs claim damages for mental distress due to the loss of the irreplaceable video record of their wedding. The plaintiffswere understandably upset by the loss of the wedding video which they contracted for and expected to receive from the defendant. Thedefendant is in the business of producing wedding videos and is fully aware of the consequences of the failure to provide the video.

Theterms and conditions of the Agreement confirm this. [37] He went on, at paragraph 15: 15 Damages were awarded for mental distress in an action where a wedding video was poorly produced as it omitted importantmoments of the wedding in Capocciti v. Kaiten Communications Inc. Prism Video [1995] O.J. No. 2388. In this action the plaintiffsreceived a video which was poorly produced. The British Columbia Court of Appeal dealt with this issue in Wilson v. Sooter StudiosLtd. [1988] B.C.J. No. 2531. This case involved an appeal from an assessment of damages awarded for ruined wedding photographs.

The trial judge declined to award the plaintiffs damages for the cost of reconstituting the wedding. The Appellate Court reviewed thelaw regarding damages for loss of expectation and mental anguish arising from breach of contract, and concluded that nominal damagesare recoverable. In Fidler v. Sun Life Assurance of Canada 2006 SCC 30 , [2006] 2 S.C.R. 3, [2006] S.C.J. No. 30, theSupreme Court of Canada referred to the Wilson decision and stated: The right to obtain damages for mental distress for breach of contracts that promise pleasure, relaxation or peace of mind has found wideacceptance in Canada.

Mental distress damages have been awarded not only for breach of vacation contracts, but also for breaches ofcontracts for wedding services (Wilson v. Sooter Studios Ltd. (1988), (BC CA), 33 B.C.L.R. (2d) 241 (C.A.)), and forluxury chattels (Wharton v. Tom Harris Chevrolet Oldsmobile Cadillac Ltd. [2002] B.C.J. No. 233. 16 The Court thoroughly canvassed the recovery of these damages and stated at paragraph 44: We conclude that damages for mental distress for breach of contract may, in appropriate cases, be awarded as an application of theprinciple in Hadley v. Baxendale: see Vorvis.

The court should ask “what did the contract promise?” and provide compensation for thosepromises. The aim of compensatory damages is to restore the wronged party to the position he or she would have been in had thecontract not been broken. As the Privy Council stated in Wertheim v. Chicoutimi Pulp Co., [1911] A.C. 301, at p. 307: “the partycomplaining should, so far as it can be done by money, be placed in the same position as he would have been in if the contract had beenperformed”. The measure of these damages is, of course, subject to remoteness principles.

[ 38 ] I now turn to Justice Gollom’s conclusion in Richardson . He found the plaintiffs were entitled to damages for mental distress for breach of the agreement. In assessing those damages, he considered the fact that the record of a once in a lifetime event had been lost.

He also noted that the defendant videographer, had “conducted a good deal of work to video the wedding and to produce the DVD but due to a combination of the state of DVD technology at the time, and the defendant's inadequate tracking and backup methods the video was lost.” He assessed damages for mental distress at $1,000 plus the return of the deposit. [ 39 ] The case law I have reviewed makes it clear that I can not only order return of the deposit, but I can also order damages for mental distress, punitive damages, and other related costs.

The issue that I grappled with over the lunch period was - what should that amount be? [ 40 ] In this case, counsel for Ms. De Genova and Mr. De Costa, submitted that in the Kressin case, Judge Gill granted damages for mental distress up to the full amount of the Small Claims Court jurisdiction in place at that time which was $10,000. She urges me to do the same in this case.

I considered her submissions, but I also considered what the courts of this province, and in particular our Court of Appeal, have said about exercising caution in the awarding of damages for mental distress; I have taken a balanced approach with respect to the damages that I am going to award to the couple. [ 41 ] There is absolutely no question that Ms. De Genova and Mr. De Costa and their families were deprived of the record of what is a once in a lifetime event. It was the first wedding for both the parties, as I understand it. It was a huge event. It was clear from Ms.

De Genova’s two affidavits and her testimony this morning that, in the Italian community, a wedding is a significant event because it is seen as one of the pivotal moments in the couple’s life. I have no difficulty in accepting that both Ms. De Genova and her husband have suffered considerable mental distress. This is doubly so because she took a number of steps to ensure she was retaining someone who was experienced.

She chose the defendant because he came recommended from a number of other people in the business. [ 42 ] The damage awards in such cases, as was noted by Judge Skilnick in Klaus , range from nominal to about $10,000. In the circumstances, I have taken into account: (

a) the efforts Ms. De Genova made, (

b) the fact she was basically led down the garden path by Mr. Banh with all of his promises of “yes, I’ll get it to you,” “I’ll do this and that,” and (

c) the fact that Mr. Banh himself specifically asked that no other people take videos or take photographs because it would affect the quality of the video he was taking. These are all, in my view, aggravating circumstances which I have considered in reaching my decision. [ 43 ] The award to the couple is the following: (

a) the return of the deposit of $1,320, (

b) total award for mental distress for distress of both Ms. De Genova and of Mr. De Costa, in the amount of $10,000; (

c) punitive damages of $2,500; and (

d) disbursements of $267.80. Those disbursements are made up of the filing costs of $156, the service costs of $58.24, the fees to file and process the default judgment and to file the affidavit in support, which were $32 and $21.56 respectively. I also award court-ordered interest from the date of the filing of the claim, which is September 10, 2012. The Honourable Judge M. F. Giardini Provincial Court of British Columbia