Rehill v. Vanac Theather Group Ltd. et al. Date:, 2013 BCPC 263

Citation: Rehill v. Vanac Theather Group Ltd. et al. Date: 20130812 2013 BCPC 0263 File No: 13-43475 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: TREVOR REHILL CLAIMANT AND: VANAC THEATER GROUP LTD. MAHTAB NASIRPOUR MOHAMMAD RAHMANIAN DEFENDANTS REASONS FOR JUDGMENT OF HER WORSHIP M. PRATCHETT Appearing in person: Trevor Rehill Appearing on their own behalf: Mahtab Nasirpour; Mohammad Rahmanian Place of Hearing: Vancouver , B.C.

Date of Hearing: August 7, 2013 Date of Judgment: August 12, 2013 [ 1 ] THE COURT: This is a claim for debt allegedly owed by the provisions of a contract for the provision of gaffer services provided by Mr. Rehill for the production of a film. [ 2 ] The Defendants were producing a low budget film. Ms. Nasirpour and her spouse Mr. Rahmanian caused the Defendant Vanac to be incorporated for this purpose in the spring of 2012. They were however the operating minds and decision makers of Vanac.

In producing the film, the Defendants relied in part on paid labour and in part on unpaid labour, the latter being referred to by them as volunteers seeking experience. [ 3 ] The Claimant, Mr. Rehill, was engaged by the Defendant Vanac pursuant to a form of contract prepared by the Defendants. The job title ascribed in the contract was “Key Gripp/Gaffer”. Mr Rehill’s functions were to make recommendations in relation to the lighting equipment that would be required and then to be the technician managing the lighting during production. [ 4 ] Mr. Rehill and his witness, Mr.

Alvarez, stated that in the ordinary course there is a defined hierarchy within the production company with the gripp/gaffer reporting up the line and being under the direction of other production members. The Defendants’ evidence regarding how they set up this production hierarchy and who was in charge of whom was vague. [ 5 ] On November 19, 2012, Mr. Rehill attended at the lighting supplier to consider what equipment was available; he was accompanied by an individual that he and others considered represented the Defendant production company. This individual was in direct communication at this meeting with Ms.

Mahtab Nasirpour and was negotiating the price for the equipment with the equipment supply company. However, Ms. Nasirpour stated that she did not understand why the lighting company or Mr. Rehill considered this person to have any authority to act on behalf of the production company because he was merely one of the production company’s several volunteers. I do not accept that evidence.

Whether volunteer or not, this individual attended at the lighting equipment supplier, holding himself out as representing the production company and negotiated the contract between the lighting company and the production company with full authority and knowledge of Ms. Nasirpour. [ 6 ] The terms of the contract with Mr. Rehill required him to be paid $250.00 per day. The terms of payment were stated to be 50% of labour weekly and the balance paid within 3 months. Mr. Rehill was only partially paid. Mr.

Rehill was paid nothing for November 19, 2012 and was paid only 50% of other days worked. [ 7 ] Mr Rehill stated that on the last day of production he was advised, without explanation, that he would not be paid in full and that the production company wanted a discount. Mr. Rehill was visibly upset; that fact was confirmed by Defendants’ witness. [ 8 ] As a courtesy on that day Mr. Rehill assisted the production company in placing lighting equipment on a truck but left as quickly as possible.

The lighting equipment was left in the custody of the Defendant production company who was responsible to arrange for its return to the lighting equipment company. [ 9 ] On March 18, 2013 Mr. Alvarez, who had been employed by the Defendant production company pursuant to a similar contract and was similarly unpaid, attempted to obtain payment from Ms. Nasirpour for himself and the Claimant. From email communications, the amounts that the Defendants were prepared to pay at that time was unclear. In evidence Ms.

Nasirpour stated that she was prepared to pay the entire balance, excluding only any payment for November 19, 2012 and that she had cheques ready. Those cheques were not produced in evidence. However at this time, March 18, 2013, Ms. Nasirpour was requiring as a pre-condition of payment, that the Claimant execute a ‘statutory declaration…with respect to final payment and no further claim.” Ms. Nasirpour required the Claimant to engage a notary public to provide such a statutory declaration. Ms.

Nasirpour confirmed in evidence that she knew that there would be a fee to the preparation and execution of this document but was not prepared to have the production company to incur this fee and considered that it should be shouldered by Mr. Rehill. There was nothing in the contract with the Claimant that required such a document. Clearly Ms. Nasirpour was making it a condition of payment that the Claimant accepts whatever was being tendered as payment in full for services, whether or not the Claimant accepted that payment as accurate. Based on the evidence of Ms.

Nasirpour, therefore, the back-charge for lost or damaged equipment, a back-charge dated 01/02/2013 and for which she made payment on March 5, 2013, was not being asserted on March 18, 2013 but was raised as a defence to the Claimant’s action in debt. [ 10 ] In defence of this action therefore the Defendants decline to pay him for November 19, 2012 and assert a back-charge or set off of $1537.86 against any amounts otherwise owed. The undisputed balance has not been paid.

The sum of $1537.86 is the amounts charge to the Defendant for lost lighting equipment by the lighting company pursuant to the contract between the lighting company and the production company. [ 11 ] From the evidence, the Defendants asserted similar set off’s against other independent contractors including Mr. Alvarez and the camera first assistant named Olmo. [ 12 ] Payment for November 19, 2012: Under the terms of his contract, Mr. Rehill was entitled to be paid for days worked at the rate of $250.

In my view, Mr Rehill is entitled to be paid this amount in full whether the production company called him out for full or part day. On November 19, 2012 Mr. Rehill spent considerable time attending the lighting equipment supplier and assisting the production company in determining what equipment was required. That day Mr. Rehill also followed the truck transporting the equipment to the production location and assisted off-loading and setting up ready for production. Ms. Nasirpour stated that the production company had volunteers to do this work and Mr.

Rehill was not asked to do this and therefore should not be paid. Mr. Rehill is entitled to be paid $250 for working November 19, 2012. [ 13 ] Defendant’s Right to Offset for Lost, Damaged or Stolen Equipment: It purporting to make Mr. Rehill responsible for lost or damaged lighting equipment, the Defendants refer to a term of their contract with Mr. Rehill that reads in part as follows: “Contractor

assumes financial responsibility for all items in Contractor’s care and custody not returned to producer.” Mr. Rehill testified that he did not take equipment into his care and custody. Mr. Rehill testified further that it is the responsibility of the production company to provide all necessary security for the equipment, to take out insurance for loss or damage, including theft and to itself assume responsibility for the equipment that it has rented. I accept Mr. Rehill’s evidence. Mr. Rehill did not take the rented equipment into his care and custody. The Defendants were not looking for Mr.

Rehill to be fully liable for the rented equipment as can be seen from their evidence that they preferred to have the equipment trucked and moved by their volunteer labour, rather than pay Mr. Rehill to undertake that task or even oversee the performance of that task. Furthermore, even if I am wrong in that conclusion, on his last day of work, having been told that he would not be paid the amount he was expecting to receive, Mr. Rehill left the equipment in the care and custody of the Defendants, who were then responsible for ensuring that all equipment was located and returned to the lighting equipment company.

There is no reliable evidence that all items were not in fact “returned to producer”, in the language of the contract, although as stated, I find that items were always in the care and custody of the producer. On Mr. Rehill’s departure, it does not appear that the Defendants undertook any inventory or kept any records of what they returned to the lighting equipment company. The majority of items claimed by the lighting company appear to be small items: clips, plates, lamps, that may have been consumed, lost or broken in production. The larger part of the amount claimed is for 3 cables.

The Defendant production company had the contract with the lighting equipment supplier. It was their responsibility to take whatever steps were required to protect the equipment and ensure that all equipment was returned as required. In my view, nothing on the facts or in the terms of the contract placed responsibility for the equipment on Mr. Rehill. [ 14 ] Judgment is awarded in favour of the Claimant Mr.

Rehill in the full amount claimed of $3875.00 plus court order interest running from March 20, 2013 to date plus costs in the amount of $236.00, all payable immediately. ___________________ Marina Pratchett Adjudicator