Housewise Construction v. Nguyen Date:, 2015 BCPC 156

Citation: Housewise Construction v. Nguyen Date: 20150423 2015 BCPC 0156 File No: 13-45047 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims) BETWEEN: HOUSEWISE CONSTRUCTION LTD. DBA SEGAL DISPOSAL CLAIMANT AND: YEN THI NGUYEN coba TRUONG THANH VIETNAMESE RESTAURANT DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP BRYAN G. BAYNHAM Appearing for the Claimant: Samuel Au

Appearing for the Defendant: No one appearing Place of Hearing: Vancouver , B.C. Dates of Hearing: July 23, 2014, September 24, 2014 Date of Judgment: April 23, 2015 [ 1 ] The claimant, Housewise Construction Ltd. (“Housewise”), is one of a small group of companies that is heavily involved in the aggressively competitive commercial waste disposal business. According to the President of the company, Mr. Au, who testified at trial, Housewise was incorporated approximately fifteen years ago and was initially involved in the construction business as the name would suggest.

Approximately eight years ago, with the assistance of an offshore investor, Housewise entered into the waste disposal business and operated under the trade name of Segal Disposal (“Segal”). Segal, according to Mr. Au, means “gift from god”. As described in greater detail later in this judgment, Housewise has successfully sought and obtained judgments for liquidated damages of several thousands of dollars from several former clients.

I do not think any of those former clients would regard Segal as a “gift from god”. [ 2 ] Be that as it may, Housewise is seeking liquidated damages of $1,871.10, as well as $246.75 for “services rendered”. The claim for liquidated damages represents the monthly rental of $198 per month for nine months, plus goods and services tax (“GST”). Housewise claims it is entitled to these damages despite the fact that it only provided a bin to the restaurant for, at most, three weeks. [ 3 ] Based on the written documentation put into evidence via Housewise’s trial statement, as well as the evidence given by Mr.

Au at the trial, the contract in question was entered into on May 24, 2013. The contract was for a term of five years, commencing July 1, 2013. The contracting parties are Housewise and Yen Thi Nguyen (“Nguyen”) dba Truong Thanh Vietnamese Restaurant (the “Restaurant”). The evidence is that the bin was delivered to the Restaurant on Kingsway Avenue in Vancouver on June 28, 2013 and removed on July 19, 2013. Housewise invoiced the Restaurant $85 for delivery of the bin and $150 for removal of the bin.

It would appear that the bin was onsite at the Restaurant for a total of nineteen days during the period that the contract was allegedly in force. While Mr. Au testified that the bin was “used” one or two times, there is no evidence that Housewise billed for those services which is surprising given the aggressive manner in which Housewise has asserted its contractual rights with the defendant. While I do not find that Mr. Au was deliberately misleading the court on this issue, I did not find his evidence compelling on this issue or on other important factual matters. [ 4 ] I should say that Mr.

Au was the only witness at trial.

The defendant filed a reply in the form of a general denial but did not file a trial statement and did not attend on July 23, 2014, the initial date set for trial, or at the trial on September 24, 2014. [ 5 ] Despite the fact that Nguyen did not actively defend the claim brought against her, Housewise is still required to prove its case, which includes providing sufficient evidence to satisfy the court that the parties entered into a binding contract, that the defendant breached the contract, and that Housewise is entitled to the costs of delivering and removing the bin as well as liquidated damages. [ 6 ] For the reasons set out below, I dismiss the action on the basis that Housewise failed to prove, on the balance of probabilities, that there was a binding contract between Housewise and Nguyen. [ 7 ] In the event I am wrong on this issue, I also find that the evidence falls short of what was necessary to prove that there was a breach of the contract by the defendant. [ 8 ] If I am wrong on this issue as well, I would have awarded liquidated damages in favour of Housewise in light of the recent judgment of Madam Justice Fenlon in the case of Tristar Cap & Garment Ltd. v.

Super Save Disposal Inc., 2014 BCSC 690 . [ 9 ] In reasons for judgment handed down on the same day as this judgment in the case of Super Save Disposal Inc. v. Chi Hung Lee dba Prompt Engineering Services , Vancouver Registry file number 13-45905, I reviewed in detail the onerous provisions of the standard form Waste Management contracts in general use by waste service providers including Housewise. That case also references the number of actions commenced by Housewise.

Since April 2010 a review of the court files indicates that 135 actions have been commenced of which 79 actions have been filed in the Robson Square Registry.

There are several reported decisions where Housewise has successfully recovered liquidated damages based on the authority of Tristar . [ 10 ] For the reasons set out in greater detail in that judgment, it is my view that the contracts in general use in the bin disposal business in British Columbia are so heavily weighted in favour of the bin disposal companies and so punitive in their application to the customers of the bin disposal companies that legislature should pass consumer protection legislation to balance the playing field to protect the vulnerable and unwitting customers that are caught up in the aggressively competitive commercial waste disposal business.

Was there a binding contract? [ 11 ] The contract in question is a standard form agreement entitled “Customer Service Agreement”. On the face of the written form of the contract, Segal is identified as the service provider. The terms and conditions on the back of the one page contract provide that Segal agrees to provide the disposal services and equipment. Segal sent an invoice to the Restaurant for $246.75 representing the cost of delivery of the waste bin. The invoice is entitled “Au’s Group Segal Disposal”. Importantly, at no point in the standard form contract is any mention made of Housewise. Indeed, Mr.

Au signed the contract as “Segal Authorized Signatory”. [ 12 ] On more than one occasion in the past, actions commenced by Housewise based on the identical or similar contractual wording have been dismissed by this court on the basis that there was no enforceable contract because no mention was made of Housewise in the written form of agreement. [ 13 ] In the case at bar, the statement of facts provides as follows:

On May 24, 2013, Segal and Truong Thanh entered into a Service Agreement (hereinafter referred to as the “Agreement”) for Segal to provide waste disposal and recycling services to Truong Thanh on the premises located at 2096 Kingsway, Vancouver, British Columbia (hereinafter referred to as the “Service Location”). [ 14 ] No mention is made of the connection between Housewise and Segal.

There is no indication in the trial statement that Nguyen had any knowledge or means of knowledge that she was supposedly entering into a contract with Housewise. [ 15 ] The following handwritten words have been added to the copy of the contract tendered as evidence at trial: Service provider-Housewise Construction Ltd. dba Segal Disposal [ 16 ] Mr. Au testified under oath that he was advised by his lawyer that he “had better write down the service provider every time he entered into a contract”.

He testified that he adopted this practice approximately two years before the date of the trial, i.e., the fall of 2012. [ 17 ] I note that the handwritten words as set out above have not been initialled by either Mr. Au or Nguyen. I also note that Housewise is described as a service provider, an ambiguous term. [ 18 ] In order for there to be a binding and enforceable contract, the party with whom the defendant allegedly contracted with had to be clearly identified.

Stating that the “service provider” was Housewise is not adequate to identify that Housewise was the contracting party. [ 19 ] If I am wrong in this regard, I would have dismissed the case in any event on the basis that Housewise has failed to prove on the balance of probabilities that the handwritten words set out above were on the contract at the time it was signed by Nguyen.

The absence of any initials leaves doubt in my mind as to when the handwritten words were added to the standard form contract. [ 20 ] Further, I am not satisfied that Housewise has proven on the balance of probabilities that Nguyen is personally liable on the contract. In this regard I note that the customer is identified as Truong Thanh Vietnamese Restaurant and not Nguyen. Truong Thanh Vietnamese Restaurant is apparently a trade name not an incorporated entity.

Importantly, when Segal sent an invoice, it went to Truong Thanh Vietnamese Restaurant, not Nguyen, as did the notice of termination letter sent out on July 2, 2013. [ 21 ] There is one other document that was put into evidence by Mr. Au which adds further confusion as to who in fact was the owner and operator of the Restaurant. A notice was apparently sent on June 19, 2013 to Segal advising that a company, 6368396 B.C.

Ltd., carrying on business at 2096 Kingsway was “currently party to a legally binding service agreement with Northwest Waste Solutions Inc.” This letter would seem to indicate that this numbered company is the owner and operator of the Restaurant. [ 22 ] Because of the conflicting evidence as set out above, I am not satisfied that by signing the contract presented to her by Mr. Au, Nguyen either intended to be or was bound personally to pay for the services to be provided by Segal commencing July 1, 2013.

Did the defendant breach the contract? [ 23 ] Assuming that I am wrong and there was a binding agreement, was there any breach of the agreement by Nguyen? [ 24 ] Since Nguyen did not testify at trial, the only evidence is that of Mr. Au and the documents he put into evidence as part of his case. [ 25 ] It would appear from the June 19, 2013 letter signed by Nguyen and sent to Segal that the waste disposal services up to July 1, 2013 were being supplied by Northwest Waste Solutions Inc. 6368396 B.C.

Ltd. gave notice that it was contractually bound pursuant to that service agreement in that there was no need for disposal services to be provided by Segal. [ 26 ] Mr. Au chose to ignore the letter and delivered the bin on June 28, 2013. On July 2, 2013 he sent a notice of termination in which he gave “the restaurant” two options: “1. the restaurant could honor the contract; or 2. the restaurant would exercise the option to terminate…by sending a cheque for liquidating(sic) damages,(sic) for…the total due to Segal Disposal $2,147.85.” [ 27 ] There is no evidence that Nguyen responded to this letter.

The next thing that happened was that Mr. Au removed the bin on July 19, 2013 and commenced the present action five days later. [ 28 ] I find as a fact that Mr. Au’s letter of July 2, 2013 did not, in and of itself, amount to a valid termination of the contract. The letter of June 19, 2013 as he specifically stated in his letter was “under a different company name”.

This notice by another company did not alter either parties’ obligation to honour the terms of the contract as signed on May 24, 2013. [ 29 ] It necessarily follows that by removing the bin on July 19, 2013, Housewise was in breach of its contract with Nguyen and as such, cannot, subsequent to the breach, sue to enforce the contract. For this reason, I would have dismissed the case in any event on the basis that Housewise has failed to establish on the evidence that Nguyen breached the contract. Is the claimant entitled to the costs of delivering and removing the bin as well as liquidated damages?

[ 30 ] If I am wrong and Nguyen is in fact a party to the contract and should it subsequently be found that Nguyen breached the contract and Housewise accepted the breach, Housewise would be entitled to the costs of services provided in delivering and removing the bin of $246.75 as well as liquidated damages as set out earlier in this judgment. [ 31 ] For the reasons set out above, I hereby dismiss the claim. Given that the defendant did not attend at trial, I make no order as to costs. ___________________ B. Baynham, Q.C. Adjudicator