Van Keken-Rietkerk v. Pacific Business Brokers et al Date:, 2014 BCPC 126

Citation: Van Keken-Rietkerk v. Pacific Business Brokers et al Date: 20140305 2014 BCPC 0126 File No: 13-45753 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: MARION VAN KEKEN-RIETKERK PREC and MARION M. VAN KEKEN-RIETKERK CLAIMANTS AND: PACIFIC BUSINESS BROKERS INC. and PINO L. BACINELLO DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP L.A. KAHN Appearing for the Claimants: M. Van Keken-Rietkerk

Appearing for the Defendants: P. Bacinello Place of Hearing: Vancouver , B.C. Date of Hearing: February 5, 2014 Date of Judgment: March 5, 2014 [ 1 ] This matter concerns a claim by Marion M. Van Keken-Rietkerk (“Ms. Van Keken-Rietkerk”) for her share of $1,500 for the preparation of a business valuation that she performed prior to leaving the employ of the Defendant, Pacific Business Brokers Inc. (“Pacific”). Also, her claim is against Pacific’s manager, Pino L. Bacinello (“Mr. Bacinello”). [ 2 ] The Defendants counterclaimed for overhead expenses of $787.50 and Mr.

Bacinello’s time to defend this claim. [ 3 ] I explained to Ms. Van Keken-Rietkerk that her claim against Mr. Bacinello could not succeed, as there was no contract between Mr. Bacinello and Ms. Van Keken-Rietkerk, but rather it was between Ms. Van Keken-Rietkerk and Pacific. [ 4 ] Also, I explained to Mr. Bacinello that he was not entitled to damages for the time to prepare the defence and counter claim, otherwise, every litigant would seek to recover damages for the time they incurred. [ 5 ] What became evident from the evidence is that the Claimant and Mr.

Bacinello were having a personal dispute. [ 6 ] The facts are, as follows: (

a) Ms. Van Keken-Rietkerk entered into a contract with Sunbelt Business Brokers Pacific Inc., which was the predecessor company to Pacific. When the name change was completed, the parties did not enter into an assignment or any other agreement and continued to operate under the original agreement. (

b) Ms. Van Keken-Rietkerk gave notice on July 5, 2013. At that time, Ms. Van Keken-Rietkerk was required to provide 3 months’ notice. Mr. Bacinello, on behalf of Pacific, waived the period of notice and accepted it as of the date it was delivered. (

c) Ms. Van Keken-Rietkerk was working on a project, which she described as “almost completed”. Upon completion, the client was obligated to pay $3,000 to Pacific, and of that, the broker, i.e. Ms. Van Keken-Rietkerk, was to be entitled to $1,500. (

d) However, on July 5, 2013, Ms. Van Keken-Rietkerk and Mr. Bacinello had a disagreement which led to Mr. Bacinello asking Ms. Van Keken-Rietkerk to leave the premises and not return. As a result, Ms. Van Keken-Rietkerk was not able to finalize the presentation of the valuation to the customer, which was scheduled for early the following week. (

e) The terms of the contract between the parties provides the following: 3.3 Sunbelt shall be the sole judge of whether any transaction shall be deemed to have been initiated or completed by the Broker, and in case of any dispute between the Broker and any other person in the office of Sunbelt, the decision of Sunbelt with respect to such dispute shall be final and binding upon all parties. … 3.5 When more than one broker is involved in a sale or exchange of a business, Sunbelt shall have the absolute right in its sole discretion to determine the division of the commissions to be payable to the brokers involved in such transaction. … 3.8 Subject to the conditions set out in this paragraph 3.8, in the event that this Agreement is terminated, the Broker shall be entitled to its regular proportionate share of commission if there is a contract of sale on listing at the time of termination and provided that such sale has completed and commission has been fully collected by Sunbelt.

If any such transaction requires further work ordinarily rendered by a broker, Sunbelt shall make arrangements with another broker under engagement with Sunbelt to perform the required work, and the broker so assigned shall be compensated for the details of the transaction, and compensation shall be deducted from the terminated Broker’s share of the commission. Such deductions shall be determined in accordance with Sunbelt’s commission

schedule in effect at the time of the subject transaction. (

f) The parties either by contract or policy, which Ms. Van Keken-Rietkerk accepted, agreed that each broker would pay Pacific a monthly fee if they were unable to generate business for that month. I had understood this to be a contribution to overhead, but Mr. Bacinello explained that, in fact, it was a contribution to the technology services provided to the brokers by Pacific. (

g) Mr. Bacinello decided that Ms. Van Keken-Rietkerk was entitled to $750, i.e. one-half of the commission, for the valuation she had almost completed (there is a dispute about the work that had to be done to finalized the presentation). (

h) On July 5, 2013, when Mr. Bacinello accepted the early termination of Ms. Van Keken-Rietkerk, he had decided not to charge her for any overhead. (

i) Subsequently, when Ms. Van Keken-Rietkerk commenced this action, Pacific claimed the technology fee.

[ 7 ] I am of the opinion that Mr. Bacinello is unable to resile from his decision that Ms. Van Keken-Rietkerk was entitled to receive $750, and to subsequently charge her the “technology fee”. The Defendant is entitled to determine what portion of the fee, if any, is payable to the broker. Under the contract, Ms. Van Keken-Rietkerk was not entitled to a full broker share, based on her opinion of the extent of the work that had been completed, or for any other criteria she thought was relevant. [ 8 ] Accordingly, the Claimant is entitled to $750. Furthermore, I find that Mr.

Bacinello, on behalf of Pacific, waived any requirement for Ms. Van Keken-Rietkerk to pay the “technology fee”, which was described as the monthly brokerage support fee for July 2013. [ 9 ] I dismiss Ms. Van Keken-Rietkerk’s claim against Mr. Bacinello, and the Defendants’ Counterclaim for the time that Mr. Bacinello incurred to prepare to defend the claim and the Reply and Counterclaim. [ 10 ] There will be judgement in favour of Ms.

Van Keken-Rietkerk, as follows: Broker’s share of fee $750.00 GST for above fee $37.50 Corporate search fee 21.00 Filing fees $100.00 Service fees $40.00 Total $948.50 [ 11 ] Also, the Claimant is entitled to pre-judgment interest from August 1, 2013 to March 5, 2014. __________________________ Lawrence A. Kahn