Knight Signs v. Crystal Hearing One Ltd. Date:, 2016 BCPC 148

Citation: Knight Signs v. Crystal Hearing One Ltd. Date: 20160512 2016 BCPC 0148 File No: 1346975 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Civil Division) BETWEEN: KNIGHT SIGNS aka PACIFIC SIGN GROUP INC. CLAIMANT AND: CRYSTAL HEARING ONE LTD. fka CRYSTAL VISION & HEARING CENTRE LTD. coba CRYSTAL VISION & HEARING CENTRE and GEORGE WIENS DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Claimant: K.G. McKenzie

Counsel for the Defendants: E. Anderson Place of Hearing: Vancouver , B.C. Dates of Hearing: Nov. 24, 25, 26, 2015; Dec. 18, 2015 Date of Judgment: May 12, 2016 INTRODUCTION [ 1 ] The claimant Knight Signs, a Division of Pacific Sign Group Inc. (“Knight Signs”) claims payment of the balance owed for a message board sign produced and installed pursuant to a contract with the defendant. The amount it claims was the final payment of $21,013.40, plus contractual interest of 26% per year from the corporate defendant Crystal Vision & Hearing Centre Ltd. for a message board sign.

Knight Signs was paid an initial deposit of $19,208 by cheque but after installation of the sign the corporate defendant refused to pay the balance of the sale price. The amount claimed by Knight Signs is not in dispute but the corporate defendant says it is not liable to pay that amount because the sign it received did not meet the requirements it specified for the sign. [ 2 ] The corporate defendant makes a counterclaim seeking to rescind the contract and to have its deposit returned with interest, plus certain costs incurred in relation to this small claims action.

In particular, Crystal Vision claims it relied on Knight Signs’ skill and judgment. It relies on ss. 17 and 18 of the Sale of Goods Act , R.S.B.C., 1996 c. 410. Crystal Vision asserts it was an implied term of the contract that: the sign it ordered must correspond with the description agreed to by the parties, must be reasonably fit for that purpose, and must be of merchantable quality. Crystal Vision claims that the resolution on the sign was insufficient, the images were unclear and the software malfunctioned. Crystal Vision claims that as a result of these deficiencies Knight Signs breached the contract.

It also claims that Knight Signs’ actions constituted a misrepresentation entitling it to rescission of the contract. [ 3 ] The defendant George Wiens, whose legal name is Stacey Wiens, says he did not sign any agreement with Knight Signs. Moreover, he maintains he did not agree to be a guarantor for the corporate defendant. To avoid any confusion and for ease of reference I have referred to the individual defendant as “George (Stacey) Wiens”. The parties [ 4 ] Knight Signs is a signage company located in Delta, British Columbia.

It provides a number of services including the design and installation of various types of signs for its customers. It employs approximately 75 employees in three separate locations. Its main facility is located in Delta, British Columbia.

The following persons gave evidence on behalf of Knight Signs: Bruno Christensen, a director and the chief financial officer of Knight Signs, Dale Wlasichuk, a client representative and Allan Kipling, a technician. [ 5 ] At the time the events in question occurred, the corporate defendant operated 14 hearing and/or vision facilities at 13 separate locations in the Lower Mainland of British Columbia. The company began as a family company in the late 1990s. It was operated by Steve and George (Stacey) Wiens, two brothers, and their mother.

In September 2015, the hearing division of Crystal Vision & Hearing Ltd. was sold to Hear Canada. The Wiens brothers continued operating and working at the optical facilities. Steve Wiens currently works as a division manager with Hear Canada. The following persons gave evidence on behalf of Crystal Vision: Steve Wiens who is currently a division manager at Hear Canada (at the time the events leading to this case took place he was president, director, officer and shareholder of Crystal Vision); George (Stacey) Wiens, who was a director, officer and shareholder of Crystal Vision; and Ms.

Kristie Baouya who at the time the relevant events took place was employed by Crystal Vision as marketing manager. The style of cause [ 6 ] The original names of the defendant used by Knight Signs in its Notice of Claim were Crystal Vision Hearing Centre Ltd. carrying on business as Crystal Vision Hearing Centre and George Wiens. At the beginning of the trial the court was advised there had been significant changes to the structure of the corporate defendant which required the parties to amend their pleadings in anticipation of any judgment that may be entered following this trial.

There was an amalgamation of several companies and the shares of Crystal Vision & Hearing Centre Ltd. were sold. The company who bought those shares gave permission to Steve Wiens and George (Stacey) Wiens to continue to act on behalf of the new company and appointed counsel to act on this matter. As a result, the parties agreed that the name of the corporate defendant be amended to: Crystal Hearing One Ltd., formerly known as Crystal Vision & Hearing Centre Ltd. carrying on business as Crystal Vision & Hearing Centre.

For ease of reference throughout these reasons I refer to the corporate defendant as “Crystal Vision”. Issues [ 7 ] This case raises the following issues:

a) Was there a contract? -- The defendants agree there was a contract albeit no one admits to signing the Cash Purchase Agreement which formally set out the terms of agreement.

b) Who were the parties to the contract? -- As already noted George (Stacey) Wiens denies he signed the contract or was a guarantor. As to the corporate defendant, as noted above, an amendment to the name was made at trial.

c) What kind of sign did the parties bargain for?

d) Did Crystal Vision receive what it bargained for?

e) Did the sale of the sign fall under s. 17 of the Sale of Goods Act ?

f) Did the sale of the sign fall under s. 18 of Sale of Goods Act ?

g) Was there a material misrepresentation?

h) Was George (Stacey) Wiens a guarantor? Alternatively, does the Business Corporations Act apply? Overview of the facts [ 8 ] Knight Signs and Crystal Vision had no previous business relationship with one another before the summer of 2012. Ms. Baouya, the marketing manager of Crystal Vision, had previously worked for a financial institution that was a long-standing client of Knight Signs. Mr. Wlasichuk, who was one of the original founders of Knight Signs, was the primary contact for that long-standing client. He and Ms. Baouya had worked together when she was with the financial institution.

In the late spring of 2012, Ms. Baouya contacted Mr. Wlasichuk at Knight Signs regarding a sign owned by Crystal Vision. That sign was located on a cement pylon at Southgate Shopping Centre in Chilliwack, BC. The sign was old and needed some work. She asked Mr. Wlasichuk to come up with some options. Eventually, Crystal Vision decided to replace the existing sign and install a digital message board.

Using information and photographs provided by Crystal Vision, Knight Signs prepared some artwork/mock-ups which showed various options of what could be done with the sign. [ 9 ] Crystal Vision chose one of the options presented. A document called a Cash Sales Agreement was signed. However, there is no agreement about how the signing came about or who signed it.

Regardless of the issues about the signing of the document, the two principals of the company, Steve Wiens and George (Stacey) Wiens, who both had signing authority, acknowledge an agreement was entered into with Knight Signs for the purchase of a message board sign for Crystal Vision. A deposit of $19,208 was paid by cheque dated October 26, 2012. That cheque was issued by Crystal Hearing Centre Ltd. – Chilliwack Hearing. According to the Cash Sales Agreement, the balance was due 15 days from completion. [ 10 ] Knight Signs ordered the message board from a supplier in the United States.

When the message board arrived arrangements were made for Ms. Baouya to go to the Knight Signs head office to view the message board and to receive training. According to Ms. Baouya, almost as soon as she saw it, she raised some issues with Allan Kipling about the quality of the message board graphics. Crystal Vision, in fact, alleges it was “persuaded” to install the sign and see whether Ms. Baouya’s concerns were allayed, once she saw it in use. Before the sign was installed Ms. Baouya told Steve Wiens she did not like the quality of the sign.

She recommended to Steve Wiens that they not proceed with the installation of the sign or that they find other options. She did this after she had seen the message board at the Knight Signs’ head office. At a later point, Steve Wiens instructed her to have the sign installed as planned. [ 11 ] The message board sign was delivered and installed on the pylon at the Southgate Shopping Centre on February 21, 2013. Crystal Vision was not satisfied with the quality of the message board. A number of emails were exchanged about the capabilities of the message board.

Crystal Vision was of the view the message board it received could not perform the functions it had specified. Accordingly, when Knight Signs rendered its final invoice Crystal Vision did not pay it. CHRONOLOGY OF EVENTS [ 12 ] In late May 2012, Ms. Baouya began working as marketing manager at Crystal Vision. Her job duties included responsibility for all the advertising, graphics, special projects, marketing planning, and other marketing related initiatives. One of special projects she was responsible for was signage. [ 13 ] In the summer of 2012, Steve Wiens told Ms.

Baouya the company owned a sign at the Southgate Shopping Centre in Chilliwack. The sign was made up of a 20 foot cement pole on top of which was a triangular shaped, (three sided) backlit Lexan sign. Apparently the sign was non-functioning and Crystal Vision was looking at options which would allow it to sell advertising/display space on the sign as well as use the sign to advertise Crystal Vision’s business. [ 14 ] Ms. Baouya said the existing sign was old and not usable. The goal was to put images, videos, logos, and text on a new sign. Ms.

Baouya called six different sign companies and asked if they were interested in preparing a quote for the sign. The only company that responded was Knight Signs. As it turned out, Ms. Baouya had dealt with Knight Signs before in her previous job, however, Crystal Vision had not been a client of Knight Signs. [ 15 ] On August 7, 2012, Ms. Baouya wrote an email to Mr. Wlasichuk at Knight Signs. She wrote she was looking to have a sign “refurbished” at the Southgate Shopping Centre in Chilliwack. She attached a photograph of the sign.

She told him she had no details of the dimensions of the sign or even if there was electricity. Ms. Baouya wrote she was “looking for a quote to see how much it would be to make graphics for each of the three sides of the signage and get the sign lit and working…” In that email, among other things, Ms. Baouya said she wanted to know if the sign could be split somehow, if they were to try to sell space to other tenants in the mall. Ms. Baouya asked Mr. Wlasichuk to provide a quote on some options available to get the sign operational with new graphics. Mr.

Wlasichuk responded the same day saying he would get back to her once he had a closer look at the site. [ 16 ] Mr. Wlasichuk testified that most of his dealings with Ms. Baouya were by email. He believed the August 7 email was the first in a series of emails they exchanged. He said originally Ms. Baouya asked about a Lexan plastic sign with lighting behind it. Initially, Ms. Baouya did not ask about a digital message board. [ 17 ] On August 15, 2012, Ms. Baouya sent an email to Mr. Wlasichuk telling him she found out that day that the owner was also interested in upgrading the sign to a digital sign, if possible.

She wrote: “Do you do that too?” Mr. Wlasichuk replied that adding electronics to the sign might be difficult. For example, the existing pole would have to be reviewed by an engineer. He would look at the pole when he went to the site and do a rough calculation to see whether there was enough support for an electronic sign. Mr. Wlasichuk also asked about what sort of digital sign the owner was considering. Ms. Baouya responded the following day, August 16, 2012. She wrote she was not sure what the owners were thinking in the way of a digital sign. She asked Mr. Wlasichuk to provide

her some price options “of each” and examples of what the sign might look like. [ 18 ] On September 4, 2012, Mr. Wlasichuk sent Ms. Baouya an email telling her he had been out to the shopping centre in Chilliwack to take photos and measurements. He asked if she could provide a graphics file for Crystal Vision so that he could illustrate some of the available options for her. [ 19 ] On September 12, 2012, Mr. Wlasichuk wrote to Ms. Baouya attaching three options for layouts.

He asked her to have a look at the layouts and see if she wanted to make any changes before he gave it to the estimators. [ 20 ] On September 21, 2012, Josh Soronow, a project coordinator from Knight Signs, sent Ms. Baouya an email to which he attached what he referred to as “the revised art” for Ms. Baouya’s review. He wrote “in for pricing too”. Presumably, this meant he was having certain options priced. Attached to that email was one sheet which depicted the existing sign and option 1, option 2, option 3. [ 21 ] Mr.

Wlasichuk testified the attachments to the September 21, 2012, email were made up by Knight Signs’ art department. The “artwork” was superimposed on photographs he had taken of the actual sign. The graphics for the logo and so on came from the client. The three options sent to Crystal Vision were all backlit signs (i.e. not digital signs). [ 22 ] On September 24, 2012, Mr. Wlasichuk wrote an email to Ms. Baouya. He noted one option was missing from the drawings Mr. Soronow had previously sent to her. Ms. Baouya had asked to see a full colour message centre filling the entire sign on all sides.

He asked her whether that was still something she wanted to consider. [ 23 ] On October 16, 2012, Mr. Wlasichuk wrote to Ms. Baouya. He told her his estimator had reservations about using their sign as proposed. The estimator had sent out one of Knight Signs’ crews who had a good look at the sign inside and out. The crew concluded the existing pole would not be acceptable. If the old sign was removed and an electronic message centre installed they would encounter permit/engineering issues. The existing sign cabinets would not support the weight of an electronic message board.

It was further noted, if the existing sign was replaced that could be done without engineering input and without permits. Moreover, it was noted that if Crystal Vision wanted to put message centres on all three sides that could be done if the size of the message centres was reduced to 3’10” by 6’9” each. [ 24 ] Mr. Wlasichuk testified he wrote this email to advise Ms. Baouya of the problems there were with the existing sign. He explained what needed to be done if Crystal Vision wanted to put a message centre on all sides.

If Crystal Vision chose a backlit sign, the size could stay as it was and no new engineering would be needed. Mr. Wlasichuk testified that Crystal Vision chose not to replace the existing concrete base. There would have been a considerable expense, approximately $10,000, if they had done so. [ 25 ] On October 22, 2012, Mr. Wlasichuk sent an email to Ms. Baouya attaching drawings showing two options and prices for each option. Option 1 was to refit the three sides of the sign with three full colour message boards. The purchase price would be $34,300 plus taxes; the lease option would be $940 a month.

Option 2 was to replace the three sides of the existing sign; the purchase for that option would be $5240. Ms. Baouya responded asking whether the lease amount of $940 per month was lease-to-own. Mr. Wlasichuk responded saying it was, for a term of 72 months. [ 26 ] On October 24, 2012, Mr. Wlasichuk sent an email to Ms. Baouya attaching examples of message centre boards that Knight Signs had put up in Coquitlam. He explained the photograph was taken before the power had been connected. He told her this would be a good sign for her to look at because it had similar resolution “to yours”.

In that email he explained that the pitch is the distance between the LED pixels; accordingly, the smaller the number, the clearer the image. [ 27 ] Later in the day on October 24, 2012, Mr. Wlasichuk sent another email to Ms. Baouya attaching additional message centre examples. He provided examples of various message centres, some of which were local, in case Ms. Baouya wanted to view them in person. One of the examples provided was of a Country Lumber sign, the other was of a City of New Westminster sign. He provided the addresses where the signs could be viewed.

He noted that the Country Lumber sign was monochrome not full colour. He also noted the New Westminster system was full colour but it lacked the resolution that “yours will have”. [ 28 ] Ms. Baouya testified she had asked Mr. Wlasichuk for examples of what she could expect to see on the sign they were purchasing. Her understanding was that the photograph of a Whitecaps sign was something similar to or better than what they would be getting. [ 29 ] On October 26, 2012, Mr. Soronow wrote to Ms. Baouya to tell her Chilliwack did not require any specific approval form from the landlord.

They just needed the property owners’ information. [ 30 ] Mr. Wlasichuk testified that Ms. Baouya called him and told him Crystal Vision was going to go ahead with the purchase option. She asked him to bring it along with the artwork. He went to a meeting on October 26, 2012, at the Abbotsford corporate office of Crystal Vision. Mr. Wlasichuk testified he initially met only with Ms. Baouya. Steve Wiens came in later. Later still George (Stacey) Wiens came in to discuss the service agreement. Mr. Wlasichuk did not recall talking to Steve Wiens or George (Stacey) Wiens before that day.

He did not believe he communicated with either of them by email. Mr. Wlasichuk said his prior discussions were with Ms. Baouya. Neither Steve Wiens nor George (Stacey) Wiens told him anything specific about their expectations for the sign. For a more detailed review of what occurred at that meeting see paragraph 98 to paragraph 116 of these reasons. [ 31 ] Ms. Baouya testified some of her communication with Mr. Wlasichuk was by telephone and some by email. She liked to use email because that way she would have a record.

Before the meeting of October 26, 2012, at Crystal Vision’s office she had communicated with Mr. Wlasichuk regarding the functions she wanted the signs perform. [ 32 ] On October 30, 2012, Ms. Baouya wrote to Mr. Wlasichuk to confirm the contract they had signed was for the cellular access option not the Wi-Fi option. She said Steve Wiens wanted to be able to access the digital sign from the office. Mr. Wlasichuk replied the same day that he was getting his team to provide the details regarding the mechanics and cost of a dial-up communications option.

In the meantime, he was only proceeding with getting the permits.

[ 33 ] On November 1, 2012, Mr. Wlasichuk sent Ms. Baouya an email saying that if the office branches were networked with the head office there would be no issue programming the message boards centrally. He said the Knight Signs’ technical person would work with their IT person to set everything up. [ 34 ] On January 4, 2013, Ms. Baouya wrote to Mr. Wlasichuk asking if he could provide her an update about where they were with the process of the new sign for Chilliwack. Mr. Wlasichuk replied the same day and told her the message centres had been ordered at the end of November after the permits had been approved.

There was a lead time of nine weeks which put the arrival date of the message centres to February. Once the message centres arrived, his team would remove the existing sign that was on top of the pole. They would take it to the Knight Signs’ shop to fit the message centres and modify the structure. The sign would then be reinstalled. [ 35 ] On January 30, 2013, Ms. Baouya wrote an email to Mr. Soronow. She was putting together a package about the sign so they could sell space to other stores in the mall. She asked him to send specifications and dimensions of what she could put on the screen.

She also asked if he had any renderings of the sign she could use in the package and also instructions on how to use the software as well as uploading instructions for her review. [ 36 ] That same day Mr. Soronow wrote back and attached renderings of the artwork. He explained they were looking at installation around February 15. With respect to training and details, he said a message centre technologist from Knight Signs would handle the software installation, communications etc. [ 37 ] On February 1, 2013, Ms. Baouya wrote to Mr. Wlasichuk.

She explained she had talked to Allan Kipling that day about the signage. She had asked Mr. Kipling about the specs for the artwork and the videos for the signage. Mr. Kipling told her the sign would not be able to play videos very well and could only handle the most basic of vector graphics. It could not handle photos or anything with any sort of detail. She wrote she had been under the impression they would be able to play videos and put photo imagery on the sign. She asked Mr. Wlasichuk to call her. Mr. Wlasichuk responded the same day saying he would speak to Allan Kipling and get back to her. [ 38 ] Mr.

Kipling testified he had a telephone discussion with Ms. Baouya during which he spoke to her about the capacity of the sign. He acknowledged that Ms. Baouya’s email of February 1, 2013, accorded with his recollection of what he told her. She thought she could take videos and display them on the sign. He told her the sign could not do that. They would have to be very simple videos almost like simple cartoons. He also told her that high definition photographs could not be shown on the sign. She had the impression they could. [ 39 ] Mr.

Wlasichuk testified he had not heard those expectations about the capabilities of the sign before the February 1 email from Ms. Baouya. That email seemed to hearken back to the question Steve Wiens had asked him on October 26 about the Pattison type signs. He did not recall receiving any emails before this regarding the playing of videos on the sign. [ 40 ] On February 4, 2013, Mr. Wlasichuk sent an email to Ms. Baouya (with a copy to Allan Kipling). He attached a photo of a message board at the Queen Elizabeth Theatre (“QET”) in Vancouver.

He said that message board was the best point of reference as it had the same pitch and resolution (20 mm) as the Crystal Vision sign. It also had the same number of pixels vertically. He noted the QET message boards were much longer but it was the best point of reference they could use. He said he would call Ms. Baouya shortly. [ 41 ] Mr. Wlasichuk testified that after sending the February 4 email to Ms. Baouya he did not receive any call from her about the resolution of the QET image he had sent. [ 42 ] On February 6, 2013, Ms. Baouya sent an email to Mr.

Wlasichuk asking if he could make up a set of screens with a rain flash video and some text. She attached examples of what she was referring to. She asked him to let her know if this would work. Mr. Wlasichuk responded he would send the information to Allan Kipling and get him working on it. He sent her a couple of still shots which were taken close to the message boards and said that from further back they looked even better. [ 43 ] On February 7, 2013, Mr. Kipling took a video of images he had loaded on the very sign screen that was to be installed at Southgate Shopping Centre for Crystal Vision.

He took the video with his cell phone. He sent the video to Ms. Baouya to make sure she knew what would be seen on the sign screen. He said that images were up loaded onto the sign screen and the video had been taken, in part, in response to Ms. Baouya’s email of February 1. After he sent that video, Ms. Baouya called to make arrangements to see the sign at the Knight Signs’ warehouse. During that call he told her he could also do training when she came in. [ 44 ] On February 7, 2013 Mr. Soronow sent Ms. Baouya shop drawings. [ 45 ] On February 13, 2013, Ms. Baouya went to the Knight Signs’ warehouse.

There she viewed the very sign that had been ordered for Crystal Vision. Mr. Kipling showed her the same images that were on the February 7 video. He also showed Ms. Baouya how to use a proprietary program provided by the manufacturer. He said the training went very well. He said Ms. Baouya did not raise any reservations to him, or with anyone else in his presence. In cross-examination he said Ms. Baouya did not express any concern about using the software. Apparently, she found it easy to use. He said, when she left, his impression was she was comfortable with the product and the software. He did not recall Ms.

Baouya telling him she needed to follow up. [ 46 ] On Friday, February 15, 2013, Mr. Soronow wrote to Ms. Baouya saying it had been nice to meet her that week. He told her they would be on site the following Monday for installation. Approximately two hours later on Friday, February 15, 2013, Mr. Wlasichuk wrote to Mr. Soronow with a copy to Ms. Baouya. He noted that Steve Wiens from Crystal Vision had just called him and wanted to know the cost to upgrade the message boards to higher resolution. He asked Mr. Soronow to have a price estimate prepared for similar sized boards. In that email, Mr. Wlasichuk asked Ms.

Baouya whether they should be delaying the installation of the sign. He also attached a photograph of the QET sign and photos taken in their plant of Crystal Vision’s yet to be installed sign. [ 47 ] About 20 minutes later on February 15, 2013, Mr. Soronow wrote to Ms. Baouya saying Mr. Wlasichuk had spoken to Steve Wiens who had told him to proceed with the installation as planned for Monday. He noted they would be forwarding the pricing for possible new message boards as soon as they had it available. Ms. Baouya wrote back thanking him and telling him to have a good

weekend. [ 48 ] On Tuesday, February 19, 2013, Mr. Soronow wrote to Ms. Baouya. He apologized for the inconvenience he had caused the day before with the aborted install. He said they were working and had almost completed the required modifications and would be back on site on Thursday for the installation. [ 49 ] On Friday February 22, 2013, Mr. Wlasichuk sent an email to Ms. Baouya titled “LED boards – alternate resolution”. He said that Steve Wiens had asked them to look into pricing for boards with “improved resolution”. He presented her with a couple of options and the pricing.

Option 1 was a 12 mm pitch and the price would be $56,580. Option 2 to 10 mm pitch and the price would be $75,160. [ 50 ] On February 22, 2013, Doug Lockhart sent an email to Sharon Hughes attaching photographs of Crystal Vision’s sign and the message boards. [ 51 ] On April 17, 2013, Mr. Soronow responded to a voicemail from Ms. Baouya. He sent her an email regarding computer issues. He had received her voicemail and was forwarding the message to Allan Kipling because Allan would be able to troubleshoot the problem. [ 52 ] On May 22, 2013, Mr. Soronow sent an email to Mr. Wlasichuk and Allan Kipling.

He wrote that Ms. Baouya had called and told him she was having major issues with the message board centres. He asked if Allan Kipling could have a discussion with Mr. Wlasichuk about the issues Ms. Baouya had raised with him. He wanted to know what options there were. He pointed out to Mr. Wlasichuk that Ms. Baouya and her boss Steve Wiens were withholding final payment until this was sorted out. Ms. Baouya wanted some answers by that Friday. [ 53 ] On May 24, 2013, Mr. Wlasichuk responded to Mr. Soronow and to Allan Kipling. He said he needed to know what Ms.

Baouya’s issues were and what had been relayed to her in that regard. On that date Mr. Wlasichuk also wrote to Steve Mander, the COO at Knight Signs and explained that Crystal Vision was having some issues with their message boards. He and Allan Kipling had been asked to meet with Crystal Vision at the site on June 3. He asked if it was okay to go ahead. Steve Mander said it was. [ 54 ] On May 24, 2013, Mr. Wlasichuk sent an email to Ms. Baouya and sent her information regarding the price of higher resolution boards.

He said the boards Crystal Vision already had contained 4608 pixels on a 48 x 96 screen, whereas the options he provided had 12,800 and18,432 pixels respectively. He also said he would get back to her about a meeting date on site. Later that day, Mr. Wlasichuk wrote to Ms. Baouya again and told her he and Allan Kipling could meet her on June 5. [ 55 ] On May 29, 2013, Ms. Baouya wrote to Mr. Wlasichuk saying she couldn’t find her note about their appointment. She asked about the time he wanted to meet on the 5 th . Mr. Wlasichuk wrote back saying he was leaving the time up to her. [ 56 ] On June 17, 2013, Ms.

Baouya wrote to Mr. Wlasichuk. She wrote that Steve Wiens had gone out to see the signage after Allan Kipling had updated the software and firmware. It was still not what Steve Wiens wanted. She wanted to know what steps should be taken to have the sign removed. She asked whether they could return the sign to him. She asked Mr. Wlasichuk to let her know the options. Mr. Wlasichuk wrote back the same day and said he was sorry to hear this. He had referred the issue to management and would let her know. [ 57 ] On July 9, 2013, Mr. Wlasichuk sent an email to Ms. Baouya.

He apologized for the delay in getting back to her. He said the company’s position was that it had fulfilled its end of the contract. It could not take return of the sign because the manufacturer would not take it back. He suggested that perhaps Steve Wiens would like to speak with his manager Steve Mander. [ 58 ] On September 9, 2013, Steve Wiens wrote to Mr. Soronow. He wanted to clear up “this sign fiasco”. He said the sign they received was not the sign they ordered. He was waiting to hear from the company about its plan to change the sign to the one they had ordered. He wanted to know when Mr.

Soronow could meet in Chilliwack or at the office to fix the problem. That same day Mr. Soronow forwarded the email to Mr. Wlasichuk. [ 59 ] Mr. Wlasichuk wrote back to Steve Wiens on September 10, 2013. He provided some background and concluded saying he was sorry the message boards were not what Mr. Wiens expected but they were what was sold. He said if Mr. Wiens wanted to discuss it further he would be happy to meet with him. He also provided Steve Mander’s direct line. [ 60 ] On September 18, 2013, Ms. Baouya wrote to Allan Kipling and Mr. Soronow about problems with the signs’ computer program.

When she opened the files they came up blank and froze the program. She asked for suggestions to deal with the problem. Allan Kipling responded the following day September 19 advising that he was in the UK and would be back in the office Monday. [ 61 ] On September 19, 2013, Ms. Baouya sent another email to Allan Kipling and to Mr. Soronow. She was having problems with the program freezing and was seeking assistance about how to reload the software. Allan Kipling responded that same day saying she should put the CD in the drive and it should come up automatically.

If not he asked her to call him. [ 62 ] On September 23, 2013, Ms. Baouya wrote to Allan Kipling again about the program freezing problem. She told him she only had the original disk before he had updated it. Allan Kipling wrote back that same day and confirmed she did not have the updated version and he would get one to her. [ 63 ] On October 7, 2013, Mitchell Taylor, the CEO of Knight Signs, wrote to Steve Wiens demanding payment. Mr. Wiens responded he wanted Knight Signs to remove the “new sign” and replace it with the old one. He said Knight Signs had not delivered what they had promised.

POSITION OF THE PARTIES Knight Signs’ position

[ 64 ] Knight Signs submits there is no dispute about the existence of a contract. It points to the fact that both parties agree there was a contract. Knight Signs says there is an issue regarding the parties to the contract. It argues Ms. Baouya testified she was the one who wrote the names on the Cash Sales Agreement. She took that document out of the meeting and returned with it signed. Knight Signs’ representative Mr. Wlasichuk testified that when he received the document the contract was signed.

At the same time he also received a deposit by cheque. [ 65 ] Knight Signs notes that whoever signed the Cash Sales Agreement did not sign it on behalf of the corporation because the name on the document is not the correct corporate name; namely, the term “Ltd.” was not included. Knight Signs says either the parties understood it was the corporate name they were talking about or, if that is not the case, George Wiens, who signed as guarantor, has an obligation to the claimant. [ 66 ] In the alternative, Knight Signs relies on the Business Corporation Act .

It submits that there is an obligation on the contracting party to properly hold itself out.

Section 27 of the Business Corporations Act says a company or extra-provincial company must display its name on its place of business and on all of its contracts. Furthermore, s. 158 provides that a director or officer of a company who knowingly permits the company to contravene s.27 is personally liable. [ 67 ] Knight Signs submits the Business Corporations Act stands for the proposition that, if a business wants the rights of limited liability, it has an obligation to give notice of its status to those people with whom it does business.

A person or other entity entering into a transaction with a business must be positively notified of the proper name of the business before a contract is entered into. Accordingly, Knight Signs argues that both Steve Wiens and George (Stacey) Wiens are personally responsible as officers and directors of the company. Knight Signs maintains one or the other of them authorized the agreement with Knight Signs. In

summary, Knight Signs says the parties to the contract are either the limited company or the guarantor. Failing that each of the brothers were officers and directors of the company and are personally liable. [ 68 ] Knight Signs argues the price of the sign provided by Knight Signs is not an issue. However, what they bargained for is an issue. Knight Signs argues both Ms. Baouya and Steve Wiens agreed they contracted for a sign in accordance with the description in the contract.

Knight Signs maintains the drawing, #4678-09-12-Crystal-DG-REV 3- S1, Option 2 which was provided as an exhibit in these proceedings (Exhibit 5 page 4) was incorporated into the agreement. However, Knight Signs argues the photographs in Exhibit 5, page 4 are not part of the contract. That was artwork put together by Ms. Baouya and was not created by Knight Signs. [ 69 ] The next issue is whether Crystal Vision received what it bargained for. Knight Signs argues it did. Ms. Baouya and the defendants knew full well that the sign they were going to receive would be pixelated.

In fact, they were sent photographs of actual signs as examples. Knight Signs argues there was only one meeting between its representative, Mr. Wlasichuk, and Steve Wiens. Before that meeting there had never been any mention or reference to Jim Pattison type signs. If such a discussion occurred between the defendants and Ms. Baouya, it was never transmitted to Knight Signs. Knight Signs says the expectations of Crystal Vision in this regard were not communicated to it. Knight Signs notes that when the issue of Pattison type signs was brought up Mr. Wlasichuk told Steve Wiens these were different animals.

Steve Wiens acknowledged that Mr. Wlasichuk said something like that to him. [ 70 ] Knight Signs argues this was not a sale by sample. It points out that Ms. Baouya was shown the very sign that was ultimately delivered and installed. It was not a depiction of what the sign was going to be like; it was the actual sign. Knight Signs had her attend at their warehouse to see the very sign loaded up with all the programs. Not only that, but Mr. Wlasichuk specifically asked Ms. Baouya whether she still wanted Knight Signs to install it. Ms.

Baouya checked with Steve Wiens and was told to have it installed. [ 71 ] With respect to Steve Wiens’ assertion that Mr. Wlasichuk told him if he did not like the sign once it was up Knight Signs would take it down and give him a full credit, Knight Signs says that is very unlikely. It points to the realities of the situation, namely, why would Knight Signs agree to install a sign which was brand-new and take it back once it was used? Moreover, Knight Signs points to the fact Mr. Wlasichuk was never specifically questioned about this alleged statement.

The issue of a telephone conversation, as alleged by Steve Wiens, was never raised in any of the pre-trial documents and was not contained in the defendants’ trial statement. The defendants’ position [ 72 ] The defendants say there are two main issues this court must address. First, what did the parties bargain for. Second, did the defendants receive what they bargained for? [ 73 ] Crystal Vision says that ss. 17 and 18 of the Sale of Goods Act apply in this case. Crystal Vision clearly and on several occasions made known to Knight Signs the purpose for which the sign was required.

It also made known to Knight Signs that it was relying on Knight Signs’ skill and judgment. In this regard Crystal Vision notes that the conceptual drawings (Exhibit 5) given to Crystal Vision by Knight Signs clearly displayed the Crystal Vision & Hearing Centre logo and clearly displayed a picture of Steve and George Wiens and their mother. Those conceptual drawings did not show any pixelation in the graphics. [ 74 ] Crystal Vision acknowledges the artwork in the conceptual drawings was provided by Ms. Baouya.

However, Knight Signs never so much as hinted that the artwork they had provided would not be viewable on a sign containing the specifications they discussed. Crystal Vision argues, if the proposed sign could not properly display the very images and artwork the customer provided, that difficulty should have been brought to the purchaser’s attention. [ 75 ] Crystal Vision points out Ms. Baouya testified that the highly pixelated pictures of Steve and George Wiens and their mother (Exhibit 10) were not presented to her until a training session in February 2013.

If she had seen those depictions of how the Crystal Vision sign would appear at an earlier date, it is likely that Crystal Vision would have ordered a different sign. [ 76 ] Crystal Vision argues it relied on the seller’s skill and judgment having made known the purpose for which the sign was required on several occasions. The case law indicates that reliance on the skill and judgment of the seller need not be specifically expressed and usually arises by implication from the circumstances of the transaction. [ 77 ] Knight Signs operate a business whose main product is signs. Both Ms.

Baouya and Steve Wiens testified they had no

experience with digital signs and were relying on the sales representative at Knight Signs, namely Mr. Wlasichuk, to assist them. Theparticular needs of Crystal Vision were communicated to Knight Signs both expressly and impliedly. Crystal Vision specifically madeknown to Knight Signs the purpose for which it wanted the goods, namely advertising by using logos, graphics, videos and artwork.

Accordingly, Crystal Vision argues, by supplying the goods there arose by law an implied condition that the goods were reasonably fitfor the purposes indicated. [78] Crystal Vision argues that the sign delivered by Knight Signs was so substantially different from the product bargained for thatthe defendants were entitled to have the sign removed, receive a return of their deposit, and rescind the contract based on materialmisrepresentations made by Knight Signs. The sign received certainly displayed some things, mainly texts and simple vector graphics.

However, even with simple graphics and text, there were problems and glitches. Additionally, Ms. Baouya testified she attempted tooperate the sign with graphics and video. She testified it worked on very simple and basic graphics and text but anything morecomplicated could not be displayed, for example rain graphics. Crystal Vision argues the sign did not perform the way it was expectedto perform. It acknowledges the sign worked to a certain degree but that is not the test to be met.

Crystal Vision argues the sign shouldperform the way it was expected to perform and be reasonably fit for the purpose for which it was purchased. [79] Crystal Vision argues Knight Signs made material misrepresentations. It argues that even if a misrepresentation is innocent, ifit leads to the representee receiving something under contract which is totally different, in substance and nature, from what wasrepresented then the representee is entitled to rescission of the contract. [80] Crystal Vision argues that George (Stacey) Wiens did not make a personal guarantee.

He testified he did not ascribe his name tothe contract in question as a guarantor. He testified he did not know who wrote his name in as a guarantor. Further, he made norepresentations to Knight Signs that he would act as a guarantor. Crystal Vision argues s. 59 (7) of the Law and Equity Act provides thata guarantee is not enforceable unless it is evidenced by writing signed by the guarantor or his agent. [81] Crystal Vision argues there are no other documents before the court which purport to show that George (Stacey) Wiens agreedto be the guarantor of this contract. In the circumstances, a strict

interpretation of the Law and Equity Act is appropriate. Assigningsomeone’s personal guarantee to the contract holds them to a high degree of responsibility. Accordingly, such a responsibility should notbe assigned or found without regard of the proper formalities. [82] With respect to Knight Signs’ submission regarding s.27 and s.158 of the Business Corporations Act, Crystal Vision says thecontract in this case clearly meets those requirements. The name of the purchaser is written in as “Crystal Vision & Hearing Centre”. The only part of the name which is missing is the “Ltd”.

Crystal Vision also argues this is not a case where the corporate veil should bepierced or personal liability attributed to the officers and directors. DISCUSSION Credibility of Witnesses [83] A number of the issues raised in this case will ultimately depend on my findings of fact. Accordingly, given the differencesbetween the parties’ evidence, assessment of credibility is a central factor in this case. In the Pitcher v. Brown, 2015 BCSC 1415, BettonJ. noted that assessments of credibility are always challenging. He referred to R. v.

R.E.M., 2008 SCC 51, a Supreme Court of Canadadecision decided in the criminal context. In that case the court made the following observations: While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on aparticular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize.

Furthermore, embellishing why a particular witness’s evidence is rejected may involve the judge saying unflattering things about thewitness; judges may wish to spare the accused who takes the stand to deny the crime, for example the indignity of not only rejecting hisevidence and convicting him, but adding negative comments about his demeanor.

In short, assessing credibility is a difficult anddelicate matter that does not always lend itself to precise and complete verbalization. (Paragraph 49) [84] The classic case on the assessment credibility in the context of a civil case is a decision of the British Columbia Court ofAppeal, Faryna v. Chrony, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), where O'Hallaran J.A. observed: … On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into thecredibility of the evidence of a witness.

Opportunities for knowledge, powers of observation, judgment and memory, ability to describeclearly what he has seen and heard, as well as other factors, combine to produce what is called credibility … The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. (pp.356-357) [85] The evidence of the witnesses about the negotiation and conclusion of the agreement, and the post installation events in thiscase was clearly affected by the passage of time and, in part, by their role in the transactions that led to the agreement. The two peoplewho were intimately involved in negotiating and concluding the agreement were Mr.

Wlasichuk and Ms. Baouya. Other witnesses alsoplayed a role, namely, Steve Wiens, George (Stacey) Wiens, and Allan Kipling. Their role however was not as significant as that of Mr.Wlasichuk and Ms. Baouya. [86] I found Mr. Wlasichuk had a good recollection of the events in this matter. He was straightforward in his presentation of the

evidence both in examination in chief and in cross-examination. There were several instances where his recollection was not as clear as one might have wished. However, in the main, I found him to be a reliable witness and a good historian. [ 87 ] Ms. Baouya was also a straightforward witness who did her best to give her recollection of events, even though she was clearly uncomfortable during certain points of her testimony. However, Ms. Baouya’s recollection of certain key exchanges was not as clear and crisp as it could have been. She was unable to recall some important details.

As well, some of her testimony was at odds with testimony of other witnesses. In cross-examination, Ms. Baouya acknowledged that the information provided to Knight Signs was through her. She also acknowledged that their communications were primarily via email because she liked to have a written record. Furthermore, she agreed that the best record of what had occurred would be the emails. [ 88 ] Allan Kipling’s evidence was essentially limited to his involvement as a technician, which included training clients. He was not involved in the negotiation of the agreement.

I found that he was a straightforward witness who had a good recollection of his involvement in this matter. [ 89 ] Steve Wiens was not involved in any direct way in the negotiation of the agreement except for an in-person meeting in October 2012. His recollection about what he wanted was clear and straightforward. However, his recollection of his involvement in the process and of certain specific events about which he was questioned was not as clear. On occasion his testimony appeared somewhat evasive and self-serving.

At one point during his testimony, when he was talking about a crucial conversation he said he had with Mr. Wlasichuk, he lost his train of thought. He did not come across as a careful witness. [ 90 ] George (Stacey) Wiens was directly involved only in one meeting in September 2012. He was only at the October 26, 2012, meeting for part of the time. He was not sure whether he was there at the end of the meeting. He did not recall the exact conversation. He did not review the Cash Sales Agreement. The first time he saw it was when he was served with documents for this lawsuit and he was floored.

He said the sign project was not his thing; it was his brother’s and Ms. Baouya’s thing. I found his recollection of events to be very limited and not particularly clear. What did the parties bargain for? [ 91 ] The defendants acknowledge a contract was entered into although some questions remain about who signed the written contract and who is bound by that contract. The central issue to be addressed is what the parties agreed to about the capabilities/features of the sign to be supplied by Knight Signs.

In order to answer that issue I will consider the discussions leading up to the written contract, the written contract, and the subsequent discussions between the parties. The discussions prior to the written contract [ 92 ] The majority of the discussions between the parties or their representatives were reduced to writing in the form of emails. Those discussions have been summarized in the Chronology of Events. It is clear from the evidence before the court that Mr. Wlasichuk and Ms. Baouya were the two people primarily involved in the discussions which led to the written contract. Ms.

Baouya testified she could not fully recall how she communicated with Mr. Wlasichuk. She thought it may have been both by telephone and email. Ms. Baouya acknowledged in cross-examination that the information about what Crystal Vision was looking for was provided by her. She acknowledged that the best record of their discussions would be the emails. [ 93 ] Steve Wiens testified the guidelines he gave Ms. Baouya before she started telephoning sign companies, was that he wanted her to get Crystal Vision a sign similar to the signs Jim Pattison has.

He wanted to sell advertising on the sign, so he wanted a sign that could display videos, moving graphics, pictures and logos. I do not accept his evidence in this regard and find it self-serving at best. The basis for my conclusion is discussed more fully below. [ 94 ] It is clear from the emails exchanged between Mr. Wlasichuk and Ms. Baouya that initially Mr. Wlasichuk was told Crystal Vision was looking to have a sign “refurbished”. At that point Ms. Baouya was not even sure if the sign was working or if electrical power was still connected to the sign.

It is also clear from the emails that, in the initial stage, all that was being discussed was a static sign. It was not until August 15, 2012, that Mr. Wlasichuk was told Crystal Vision was interested in upgrading the sign to a digital sign, if possible. If Steve Wiens had told Ms. Baouya he wanted a Pattison type sign, it is unlikely she would first enquire about refurbishing the existing sign. Further, if he had told her specifically that he wanted a Pattison type sign, it is difficult to understand why she did not tell Mr.

Wlasichuk this from the start. [ 95 ] Knight Signs prepared layouts for three options, none of these were digital options. It was only on September 24, 2012, that Mr. Wlasichuk wrote Ms. Baouya and noted that the full-colour message centre option had not been provided. Approximately one month later, on October 22, 2012, the options sent to Ms. Baouya by Mr. Wlasichuk were the refit of the sign with three full colour message boards and a simple replacement of the three sides of the existing sign. Ms. Baouya testified she asked Mr.

Wlasichuk for examples of what she could expect to see on the sign they were purchasing. Mr. Wlasichuk sent her photographs of several examples on October 24, 2012. Ms. Baouya testified that before she received examples of other message centre signs she had communicated to Mr. Wlasichuk Crystal Visions’ goals about the functions they wanted the sign to perform. Her recollection was that this was done at an in- person meeting in Abbotsford before she received the examples (Exhibit 8) on October 24, 2012. [ 96 ] First, it is unlikely that the meeting with Ms.

Baouya and Steve Wiens occurred in the time frame now recalled by Ms. Baouya. If Steve Wiens had been as adamant as he claimed about his instructions to Ms. Baouya, it is improbable she would be considering a refit of the sign versus full colour message boards as late as October 22, 2012. [ 97 ] Second, Ms. Baouya testified that Crystal Vision’s goal was to put images, videos, logos and text on the new sign. However, it is telling those goals do not appear to have been set out in the email correspondence between her and Mr. Wlasichuk.

It is also telling that at no point before the October 26, 2012, meeting is there any mention of a Pattison type sign in the email correspondence. It is clear that some discussion occurred about the type of electronic message centre Crystal Vision wanted because certain specifications were set out in the Cash Sales Agreement Mr. Wlasichuk took to the October 26, 2012 meeting. However, on the evidence before me I cannot conclude on a balance of probabilities that Crystal Vision’s goals and expectations about the signs’ capabilities were clearly articulated to

Mr. Wlasichuk before the October 26, 2012, meeting. Furthermore, I specifically find as a fact there was no mention of a Pattison type sign to Mr. Wlasichuk prior to that meeting. I now turn to that meeting and the written contract which appears to have been discussed at that meeting. October 26, 2012, meeting and the written contract [ 98 ] A Cash Sales Agreement dated October 26, 2012, was entered as an exhibit at trial. The defendants do not challenge that this was the agreement presented to Ms. Baouya by Mr. Wlasichuk. They acknowledge that an agreement was reached.

However, the corporate defendant and George (Stacey) Wiens say the agreement entered as an exhibit in these proceedings was not signed by the company or by George (Stacey) Wiens who testified the writing on the contract is not his writing. He also testified that the name written just above the line which states “Authorized signing officer of company” is not his signature. [ 99 ] Ms. Baouya recalled there was an in-person meeting. She could not recall the exact date but guessed it was sometime in September. In any event, it was before the signing of the Cash Sales Agreement.

The meeting was at Crystal Vision’s Abbotsford office. Steve Wiens and Mr. Wlasichuk were there. She did not think George (Stacey) Wiens was there. She and Steve Wiens talked about their needs and told Mr. Wlasichuk they wanted a Pattison quality type sign. They wanted something that could play videos, show logos, images and text. She said using the term “Pattison quality” was a metaphor for the quality they were looking for in a sign. It referred to the type of colourful, interactive, and high-quality outdoor signs one sees along the highways. [ 100 ] Ms. Baouya said Mr.

Wlasichuk explained they could not get a Pattison quality type sign. He told them those were the best signs one can get. According to her, he said he could get them something that would meet their needs. He showed them examples. He recommended a sign with a 20 mm pitch and told them it would be sufficient to meet their needs to display videos, logos, images and text. She had never dealt with a digital sign before and was relying on Mr. Wlasichuk to educate her and Steve Wiens about the product. The examples he gave them were to help them understand what the sign would look like.

It was not clear from her evidence whether Mr. Wlasichuk was told she and Steve Wiens were relying on him . [ 101 ] Ms. Baouya testified that Knight Signs sent her the Cash Sales Agreement. She read it over. Ms. Baouya said she was instructed by Steve and George (Stacey) Wiens regarding what to write in the form. She wrote three different things on the agreement, namely, the name George Wiens just above the line that says “Guarantor”, the name Crystal Vision & Hearing Centre just above the line that says “Company name” and the word “owner” just above the line that says “Title(

s) or Position(

s) Held”. [ 102 ] Ms. Baouya did not recall if George (Stacey) and Steve Wiens were there when she filled out that part of the Cash Sales Agreement. She said she put that document in their shared office to get it signed. Later that day or another day, the document, which had been signed just above the line “Authorized Signing Officer of Company”, was on her desk. In chief Ms. Baouya was asked whether Steve or George (Stacey) Wiens asked her to fill in the guarantor line. She did not remember the conversation but she assumed she was instructed to fill out the document in that manner. She had no discussion with Mr.

Wlasichuk regarding the guarantor. [ 103 ] In cross-examination Ms. Baouya agreed Crystal Vision received everything that was listed in the description of the sign contained in the Cash Sales Agreement. She was asked if she recognized the signature of the authorized signing officer. She assumed it was George (Stacey) Wiens’ signature. The rest of the wording is what she was told to put in by either George (Stacey) Wiens or Steve Wiens. She could not recall who told her to fill in those lines in the Cash Sales Agreement. She did not remember giving the contract to Mr. Wlasichuk on October 26, 2012.

She acknowledged a cheque was made out to Knight Signs dated October 26, 2012. She thought the signature on that cheque was Steve Wiens’ signature but she wasn’t sure. It was put to her that she gave the deposit cheque to Mr. Wlasichuk at a meeting on October 26, 2012. She remembered Mr. Wlasichuk coming to the office that day but she did not remember giving him the deposit cheque. [ 104 ] Ms. Baouya did not recall if there was more than one meeting. She did not remember the time frame of the meeting and who came in and out. She thought Steve Wiens was present and was there the majority of the time.

It was her recollection she was not left on her own during the meeting with Mr. Wlasichuk at any time. [ 105 ] Mr. Wlasichuk testified he had a telephone discussion with Ms. Baouya at one point. She told him they were going to go ahead with the purchase option. She asked him to bring along the purchase agreement with the artwork. He went to the Abbotsford corporate office of Crystal Vision and had a meeting with Ms. Baouya. At one point in the meeting Steve Wiens came in. Later, his brother George (Stacey) Wiens also came in to discuss the service agreement. [ 106 ] Mr. Wlasichuk said originally just he and Ms.

Baouya were present at the meeting. Steve Wiens came in and later was followed by George (Stacey) Wiens. He did not recall speaking to either Steve Wiens or George (Stacey) Wiens before that day. His discussions about the sign were with Ms. Baouya. Neither Steve Wiens nor George (Stacey) Wiens told Mr. Wlasichuk anything about the specifications for the sign. [ 107 ] When Steve Wiens came into the meeting he talked about the details of what the message boards would do. One thing Steve Wiens said at that meeting stuck with Mr. Wlasichuk.

Steve Wiens asked if the message board they were purchasing would compare to the Pattison outdoor boards. Mr. Wlasichuk told Steve Wiens that if he was talking about Jim Pattison signs such as high school type pylon signs or signs of that sort, the message board they were discussing would compare. However, if he was talking about the Jim Pattison signs one sees on highway pylons, there is no comparison. Mr. Wlasichuk said that is a different sort of animal. He explained that resolution of the sign is determined in part by the pitch and by the overall size of the sign.

Signs that are used on the highway are many times higher and longer than the kind of sign Crystal Vision was looking at. He told Steve Wiens that if he was talking about the highway signs then it was something entirely different. Mr. Wlasichuk said Steve Wiens appeared satisfied with the explanation he provided. When he had the discussion about the Pattison type signs, only he, Ms. Baouya and Steve Wiens were in the meeting room. Mr. Wlasichuk said there was no further discussion about Pattison type signs. [ 108 ] Mr. Wlasichuk said the Cash Sales Agreement was signed that day.

He could not remember if he signed on behalf of Knight Signs before going to Crystal Vision’s office or while he was at the office. Once the Wiens brothers decided whether they were prepared to go ahead, Ms. Baouya took the Cash Sales Agreement from him, left the office, and came back with it signed. She also came back

with the deposit cheque. Mr. Wlasichuk said George (Stacey) Wiens came into the meeting to talk about the service contract. At the end, they opted not to go with a service agreement. [ 109 ] In cross-examination Mr. Wlasichuk said the artwork as shown in the mock-ups prepared by Knight Signs did not show how the images on the sign would actually look. That was why they provided examples of other signs that Crystal Vision could look at, for example, the QET sign. He was asked whether he ever explained that the artwork would not look the same. He said the images he sent were part of a “feeling out process”.

He said he referred to the QET sign several times. The only way one can see how a message board will look is to see one like it. [ 110 ] Mr. Wlasichuk was asked whether the examples he provided were ones he viewed as comparable to the sign being considered by Crystal Vision. He said no. The client had asked for examples, so he went through the Knight Signs’ archives and found examples of message boards they had installed. By about October 24, 2012, he had an indication that Crystal Vision was leaning to having a full colour, full board but they were still asking questions.

By that time he had presented a 20 mm pitch option to them. [ 111 ] With respect to the meeting at Crystal Vision’s office, Mr. Wlasichuk said the only conversation he had with Crystal Vision about the capability of the sign was when Steve Wiens asked about a Pattison type sign. He told Steve Wiens if he was referring to Pattison signs like the one on the highways, the sign they were discussing would not look like that. He said the gist of the conversation with Steve Wiens was that Steve wanted the same resolution as the Pattison sign but on a smaller scale. However, Mr.

Wlasichuk provided an explanation and tried to clarify what was possible. Mr. Wlasichuk did not believe he made a recommendation about the sign. He thought, once they had their discussion, they “got it” and knew what kind of sign they were getting. The QET sign was quite close to what they were getting. If they decided otherwise, it would be a different conversation and they would have to go back to the drawing board. [ 112 ] Mr. Wlasichuk was asked specific questions about his understanding of what Crystal Vision wanted the sign to display based on the conversation with Ms. Baouya and Steve Wiens in Abbotsford.

He understood they wanted the sign to display graphics. He also understood, to some degree, that they wanted to display logos and a picture of the family. However, he said he went to great lengths to show them how those types of images would be displayed. He did not understand that they wanted to display videos on the sign. That is what one can do on the big highway signs. He thought he had gotten it across to them that the sign they were getting was not big enough to show videos or the sort of graphic representations that counsel described. Mr.

Wlasichuk was aware they wanted to use the sign to advertise for other tenants in the mall. However, he was not sure he understood the broad scope, including community advertisements, that Crystal Vision may have intended. [ 113 ] Mr. George (Stacey) Wiens testified he was at a meeting with Mr. Wlasichuk, Ms. Baouya, and his brother Steve Wiens. However, he was only in that meeting for part of the time. He did not remember the exact conversation that took place during the meeting. He recognized the document, the Cash Sales Agreement, but the writing on the document was not his.

In particular, George (Stacey) Wiens said he did not sign that document as a guarantor or as an owner. He acknowledged that Crystal Vision & Hearing entered into that contract. He acknowledged this was a binding contract but he did not execute it. George (Stacey) Wiens also said he did not instruct anyone, including his brother, to write his name on that document either as owner or guarantor. [ 114 ] In cross-examination, George (Stacey) Wiens said he did not review the Cash Sales Agreement before it was signed; he did not see it nor negotiate it.

He acknowledged he was present at the meeting but the issue of the sign was “their thing” – meaning Ms. Baouya and Steve Wiens. He also said Ms. Baouya did not have authorization to enter into that contract. He acknowledged that either he or Steve Wiens approved it. It was put to him that if he had not approved the contract then it must have been Steve Wiens. He agreed. [ 115 ] Steve Wiens testified about what he was looking for in a sign as well as the Cash Sales Agreement and how it might have come to be signed. In the fall of 2012, sometime in the end of September or the end of October, Mr.

Wlasichuk went to his office in Abbotsford and met with him, his brother, and Ms. Baouya. According to Steve Wiens, at that time they discussed what he wanted. He told Mr. Wlasichuk he was really impressed with the Jim Pattison signs and he wanted a Pattison type sign. He could not recall Mr. Wlasichuk’s response. However, Mr. Wlasichuk seemed to understand. He made Mr. Wiens feel they were going to get that kind of a sign. He said the sign at Southgate Shopping Centre was their opportunity to try to get into the sign business. After the meeting with Mr.

Wlasichuk he was very confident they could get on with that business in the way they had planned. [ 116 ] Steve Wiens acknowledged the Cash Sales Agreement dated October 26, 2012, was binding on Crystal Vision. However, he could not recall whether the in-person meeting he had with Mr. Wlasichuk at the Abbotsford office occurred before entering into that agreement. His signature did not appear anywhere on the Cash Sales Agreement. He did not know who signed the contract. He also said he did not know who filled out the hand printed parts of the agreement.

He noted his brother’s name was on the agreement but said it didn’t look like his brother’s signature. However, they were not fighting the validity of the agreement. Steve Wiens did not recall the contract being signed at the in-person meeting he testified about. He believed Mr. Wlasichuk brought a contract with him to that meeting but he didn’t know if his brother or Ms. Baouya signed it. Findings of fact regarding October 26 meeting and signing agreement [ 117 ] My findings of fact regarding the October 26, 2012, meeting and the signing of the Cash Sales Agreement are set out below.

In reaching my conclusions I have considered the credibility, which includes both accuracy and reliability, of all witnesses who testified about what occurred on that occasion. As noted in my earlier comments regarding credibility of the witnesses, I did not find Steve Wiens to be a reliable or credible witness. [ 118 ] My findings of fact with respect to terms of the contract are as follows:

a) The goals Crystal Vision and its principals may have had about the nature and use of the sign were not clearly spelled out to Mr. Wlasichuk before October 26, 2012.

b) Prior to that date, Mr. Wlasichuk was aware Crystal Vision wanted a digital sign. Additionally, Ms. Baouya initially mentioned she wanted to know if the sign could be split somehow to sell space to other tenants in the mall. However, I am satisfied on the evidence

that the full scope of Steve Wiens’ desire to get into the sign advertising business like Jim Pattison was definitely not brought to the attention of Knight Signs or its representatives.

c) Mr. Wlasichuk did not have any direct communications with either Steve or George (Stacey) Wiens. All of his discussions about the sign were with Ms. Baouya. The only information he received about the sign was what was communicated to him by Ms. Baouya.

d) I accept Mr. Wlasichuk’s evidence that the first time Pattison type signs were mentioned was at the meeting of October 26, 2012. In particular, I find that Ms. Baouya had not told him that Crystal Vision wanted a Pattison type sign.

e) I accept Ms. Wlasichuk’s evidence, which is corroborated by Ms. Baouya, that he told Ms. Baouya and Steve Wiens that what they were getting was not a Pattison type sign.

f) I reject Steve Wiens’ evidence that Mr. Wlasichuk made him feel they were going to get a Pattison type sign. That may have been what Steve Wiens wanted to hear, but it was not what he was told by Mr. Wlasichuk. [ 119 ] My findings of fact about the signing of the Cash Sales Agreement are as follows:

a) Mr. Wlasichuk brought the Cash Sales Agreement to the meeting of October 26, 2012. The first page of the agreement had already been filled in and set out the description of the electronic message centres, the place of installation, the purchase price and the payment terms.

b) Mr. Wlasichuk signed that agreement. He could not remember whether he signed it before he went to the Crystal Vision’s Abbotsford office or while he was there. I am satisfied that he signed that contract either immediately before or at the meeting of October 26, 2012.

c) I accept Ms. Baouya’s evidence that she was instructed by Steve or George (Stacey) Wiens to fill in the bottom part of that Cash Sales Agreement. I also accept her evidence that she does not now recall which one of them gave her those instructions.

d) Ms. Baouya filled in three different lines on that form, namely: printing in the name George Wiens just above the guarantor line, printing in the name Crystal Vision & Hearing Centre just above the company name line and the word “owner” immediately below the line for the signing officer.

e) I find that the document was filled out that day and a signed copy was given to Mr. Wlasichuk along with a deposit cheque for $19,208. My findings of fact regarding viewing and installation of the sign [ 120 ] In the Chronology of Events I have set out a

summary of the viva voce and documentary evidence presented at trial about what happened after the sign was ordered. My findings of fact in that regard are as follows:

a) Even after the Cash Sales Agreement was signed there were several communications between Ms. Baouya and Mr. Wlasichuk which make it clear that Ms. Baouya still had some questions about the message boards that were ordered. This suggests to me that she was still not certain about the exact capabilities of the sign.

b) In early February, Ms. Baouya had a conversation with Allan Kipling. He told her the sign would not be able to play videos very well and could only handle the most basic of vector graphics. It could not handle photos or anything else with any sort of detail. She apparently had not understood that because she was under the impression they would be able to display videos and photo imagery on the sign. Mr. Kipling referred Ms. Baouya to Mr. Wlasichuk.

c) I accept Mr. Wlasichuk’s testimony that he had not heard those expectations before he received an email from Ms. Baouya on February 1, 2013. As a result of that he sent her an email and attached a photograph of a message board at the Queen Elizabeth Theatre and told her that sign would be the best point of reference.

d) Allan Kipling sent Ms. Baouya a video of images he had put on the very message boards that were going to be installed on the new Crystal Vision sign.

e) On February 13, 2013, Ms. Baouya went to the Knight Signs’ warehouse and viewed and was trained on the very sign that was to be installed at the Southgate Shopping Centre. After viewing the sign Ms. Baouya had some reservations. She said she told Mr. Kipling that Steve Wiens was not going to like this. Although I accept Ms. Baouya had reservations, I believe she is mistaken about having told Mr. Kipling. I accept Mr. Kipling’s evidence that the training session went very well that day and Ms. Baouya did not express any reservations about the sign to him or to anyone else in his presence.

f) I accept Ms. Baouya’s testimony that after she saw the sign at Knight Signs’ warehouse she spoke to Steve Wiens and told him she did not feel the sign was right. She told him she did not like the quality of the sign. Her recommendation was that they not proceed with the installation or that they find other options.

g) I also accept Ms. Baouya’s evidence that to her knowledge Steve Wiens telephoned Mr. Wlasichuk and told him to install the sign.

h) On February 15, 2013, Steve Wiens called Mr. Wlasichuk and asked him what it would cost to upgrade the boards to a higher resolution. Accordingly, Mr. Wlasichuk asked one of his colleagues to prepare estimates. Mr. Wlasichuk specifically asked Ms. Baouya whether they should be delaying the installation. In this regard I prefer what is in the documentary evidence and what was testified to by

Mr. Wlasichuk over the recollections of Steve Wiens.

i) In particular, I do not accept Steve Wiens’ evidence which suggests he was talked into installing the sign by Mr. Wlasichuk on the understanding that if he was not happy with the quality he could return it. Does the Sale of Goods Act apply in this case? [ 121 ] The defendants submit that the Sale of Goods Act applies in this case. In particular they rely on ss. 17 and 18 of the Act . They argue that Crystal Vision on several occasions clearly made known to Knight Signs the purpose for which the sign was required.

Additionally, the defendants submit it was made known to Knight Signs that they were relying on its skill and judgment. Did the sale of the sign fall under s. 17 of the Sale of Goods Act ? [ 122 ]

Section 17 of the Sale of Goods Act provides that in a contract for the sale of goods by description there is an implied condition that the goods must correspond with the description. [ 123 ] Crystal Vision argues the sale of the sign was a sale by description. In particular it relies on the conceptual drawings of the various options available for purchase that it received from Knight Signs. Those conceptual drawings clearly displayed the Crystal Vision logo and a photograph of Steve and George (Stacey) Wiens and their mother. The conceptual drawings did not depict any pixelation in the graphics.

In particular, Crystal Vision argues that at the in-person meeting at Crystal Vision’s head office Ms. Baouya was presented with a mock up or conceptual drawing which was a family picture Crystal Vision had supplied. The photograph was on a gray grid (Exhibit 16). Ms. Baouya understood that to be a pixilated example of the art she could expect to see on the sign they were purchasing. [ 124 ] The Sale of Goods Act does not define the word “description”. However, in Coast Hotels Ltd. v. Royal Doulton Canada Ltd ., 2000 BCSC 857 , Martinson J. relied on the leading case of Christopher Hill Ltd. v.

Ashington Piggeries Ltd ., [1972] A.C. 441 , to conclude that the description goes to the identity of the goods. In that case the court stated: The description by which unascertained goods are sold is, in my view, confined to those words in the contract which were intended by the parties to identify the kind of goods which were to be supplied. It is open to the parties to use a description as broad or narrow as they choose. [ 125 ] I am satisfied that in the circumstances of this case the purchase of the sign by Crystal Vision was a sale by description.

The challenge in this case is to determine what the description was. Crystal Vision, as noted, argues that the description included the conceptual drawings and the mock-ups it received from Knight Signs. As well, it relies on the testimony of Ms. Baouya and Steve Wiens that they specifically told Mr. Wlasichuk they wanted a Pattison type sign. [ 126 ] For its part, Knight Signs says the description is what is contained within the four corners of the Cash Sale Agreement. That description included a drawing which is specifically referenced at the top of the Cash Sales Agreement.

Knight Signs argues that photographs, artwork, and mock-ups were not part of the description and thus not part of the contract. [ 127 ] As previously noted, I found as a fact that Mr. Wlasichuk first heard about the Pattison type signs at the meeting of October 26, 2012. Ms. Baouya had not told him that Crystal Vision wanted a Pattison type sign. The first time it was mentioned to him was by Steve Wiens at the October 26, 2012, meeting. At that meeting he specifically told Ms. Baouya and Steve Wiens they were not getting a Pattison type sign. [ 128 ] Moreover, I am satisfied on the evidence Ms.

Baouya was aware that various mock-ups, which contained photographs, graphics, text and logos were merely illustrations of some of the available options. Mr. Wlasichuk also sent Ms. Baouya examples of message boards that Knight Signs had put up in Coquitlam. However, those examples were not held out to be an exact representation of what Crystal Vision’s sign would look like. [ 129 ] More importantly, however, in Coast Hotels Ltd . Martinson J. noted that the court must construe the contract to determine what the description was. What the parties intended the description to be is determined objectively.

In making that determination the court ought to consider the words and conduct of the parties to determine the common intention of the parties. In this case, the best evidence of what was agreed to is Cash Sales Agreement. That agreement sets out the terms of the contract.

In particular, it sets out a description of the sign “in accordance with the specifications and approved sketch hereinafter set forth which specifications and approved sketch form part of this Agreement.” [ 130 ] What follows that statement is a reference to Drawings #4678-09-12-Crystal-DG-REV3-S.1, OPTION 1. and the following description: “supply & install three [3]@ 3’ 10” x 6’ 9” electronic message centres, mounted to existing pole structure; full colour RGB; wireless communication; 20 mm pitch; 48 x 96 matrix; training included; new bracket mounts included; electrical connection included; power to signed by others; permits by Knight Signs; costs billed back to client.” In addition to this description there is a clause in the agreement (clause 13) which provides, among other things, that: “No agreement or statement is binding if not set forth in writing herein.

The Purchaser acknowledges having received a copy of this contract.” [ 131 ] Considering the intention of the parties objectively, I am satisfied that the best evidence of their intention is what is contained in the Cash Sales Agreement. That agreement sets out in some detail the specifications of the sign that was going to be provided to Crystal Vision. I find the specifications set out in the description were met by Knight Signs. Crystal Vision argues that the photographs contained in the drawing attached to the Cash Sales Agreement formed part of the description of what they would get. I do not

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