Housewise Construction Ltd. v., 2014 BCPC 125

Citation: Housewise Construction Ltd. v. 593997 B.C. Ltd. Date: 20140328 2014 BCPC 0125 File No: 12-41754 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: HOUSEWISE CONSTRUCTION LTD. dba SEGAL DISPOSAL CLAIMANT AND: 593997 B.C. LTD dba SARANG CHAE KOREAN RESTAURANT DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP BRIAN J. WALLACE Appearing for the Claimant: Samuel Au

Counsel for the Defendant: J. Jachimowicz Place of Hearing: Vancouver , B.C. Date of Hearing: February 5, 2014 Date of Judgment: March 28, 2014 [ 1 ] The Claimant seeks payment from the Defendant under a 5-year service agreement for waste disposal services of $1,650.00 ($184.00 x 9 months) in liquidated damages for failure to perform the agreement, $1,018.74 for the outstanding balance for services performed under it and $300.00 for bin removal. The Claimant also seeks cost totalling $210.00 related to the claim. [ 2 ] The parties entered the agreement at issue on April 4, 2012. [ 3 ] Ki Taek Suh, the Defendant’s principal, says that, at that time:

a) he told the Claimant’s representative, Mr. Au, four years remained on the Defendant’s agreement with its current provider, Northwest Waste Solutions Inc., and

b) Mr. Au promised that the Claimant would “take care of the other waste disposal contract by sending them a letter and by paying for any costs and or penalties associated with cancelling” it. [ 4 ] Mr. Au denies that Mr. Suh told him that four years remained on the Defendant’s existing contract. He also denies that he made the promise alleged, and points to the handwritten note on the front of the agreement, which says, “Customer will cancel their existing contract himself. If customer breach the contract, customer agree to pay the liquidation damage.” [ 5 ] Mr.

Suh says although he requested it, he did not receive a copy of the agreement until the Claimant filed its Trial Statement, and that the handwritten note was not on it when he signed it. [ 6 ] By letter dated April 26, 2012, received by the Claimant on April 30, the Defendant notified the Claimant that it did not want the Claimant’s services, but rather would continue to utilize the services of Northwest because the Claimant had not terminated the Defendant’s contract with Northwest at the Claimant’s cost. [ 7 ] The Claimant delivered two bins to the Defendant’s premises in any event, leaving the bins there from May through August 2012.

The Claimant says the Defendant or his neighbour, with the Defendant’s permission, used the bins. The Defendant denies it. [ 8 ] The first issue is whether it was a condition precedent to the agreement, that the Claimant would save the Defendant harmless from the consequences of its contract with Northwest. If it is then the claim is dismissed, if not the second question is whether the damages claimed are appropriate as liquidated damages or an unenforceable penalty. A third question is whether the Defendant used the bins for four months. [ 9 ] I am satisfied that is more likely than not that Mr.

Suh would have sought Mr. Au’s assurance that the Claimant would cover any costs of terminating the Defendant’s contract with Northwest as a condition of entering the agreement with the Claimant, and that it is unlikely that the handwritten words were on the agreement when he signed it. Given this conclusion, it is unnecessary to consider the liquidated damages are in fact a penalty. [ 10 ] On the third question, there is no objective evidence that the bins were used, if so, by whom and on whose permission, if any. [ 11 ] The Claim is dismissed. ____________________ Brian J. Wallace, Q.C. Adjudicator