Housewise Construction v. Lanes Automotive Ltd. Date:, 2015 BCPC 437

Citation: Housewise Construction v. Lanes Automotive Ltd. Date: 20150813 2015 BCPC 0437 File No: 15-51109 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims) BETWEEN: HOUSEWISE CONTRUCTION LTD. DBA SEGAL DISPOSAL CLAIMANT AND: LANES AUTOMOTIVE LTD. DEFENDANT REASONS FOR JUDGMENT OF HER WORSHIP M. PRATCHETT Counsel for the Claimant: Samuel Au Counsel for the Defendant: Alvin Hui

Place of Hearing: Vancouver , B.C. Date of Hearing: June 17, 2015 Date of Judgment: August 13, 2015 [ 1 ] On June 29, 2012 a contract for waste disposal services was signed between the Plaintiff and Defendant. The person signing the contract on behalf of the Defendant was Mr. Jacky Chen (aka Xin Yi Chen). On the face of the contract, Mr. Chen identifies his position with the Defendant as “owner”. [ 2 ] At the time of execution of the Contract, the Defendant had an existing waste disposal contract with a competitor company to the Plaintiff.

Service under the Contract between Claimant and Defendant would commence on the date following last day of service with the existing supplier, January 21, 2015. [ 3 ] At the same time as signing the Contract, Mr. Jacky Chen signed two other documents, also as “owner” of the Defendant: (

a) a letter to the Defendant’s existing waste disposal provider dated June 29, 2012 giving formal notice of cancellation of their contract effective January 21, 2015; and (

b) a document to the Plaintiff stating as follows: “I am aware that my current vendor upon receipt of my cancellation letter will approach me. I am also aware that there may be attempts by my current vendor to breach my agreement with [the Claimant]. Inducements may include the offer of a reduced monthly rate subject to the approval of a new agreement or any extension of the extant agreement. I am aware of the right to re-negotiation clause and I have exercised my right under the current vendor’s agreement to cancel their services.

I have been informed that the service agreement I have signed with [the Claimant] will commence upon the expiry of my current hauler’s agreement…” [ 4 ] On October 7, 2014 Mr. Jacky Chen wrote to the Claimant stating as follows: “Please be advised that we will continue to utilize (the other provider) to service our waste removal and recycling needs. Please be advised that we are currently a party to a legally binding service agreement with (this other provider). We will endeavour to contact your office, in future in the event we do not continue with (the other service agreement).

We further advise the (other service agreement) contains a right to negotiate provision which we have elected to exercise; therefore your services will not be required at this time.” [ 5 ] On December 20, 2014, the Claimant responded to this letter of October 17, 2014 reminding the Defendant that it has a legal (sic) binding agreement with the Claimant and advising that the Claimant does not accept the Defendant’s termination. The letter states that the Defendant has two options: (

a) honor its obligations under the Contract or (

b) pay the liquidated damages amount of $425.25. The Claimant stated that in this letter that if there was no response from the Defendant to this letter within 10 working days the Claimant would assume that the Defendant was honoring the Contract with the Claimant. [ 6 ] The Defendant did not respond to this letter of December 20, 2014 and accordingly on January 21, 2015 the Claimant attended the premises with the disposal bins. Defendant refused to take the bins and the Claimant was required to remove the bins. [ 7 ] By way of defence to the claim, the Defendant asserted the following: a. Mr.

Jacky Chen was not a person authorized to execute a contract on behalf of the Defendant; and b. Because English is not his native language, Mr. Chen did not understand the terms of the Contract and documents he was executing. [ 8 ] In relation to the first point, Mr. Jacky Chen stated that he is merely an employee of the Defendant, with no interest in the Defendant and that the Defendant Company is actually owned by his sister Katie Chen. That defence is not accepted. Mr. Jacky Chen held himself out to the Claimant as owner and authorized signatory of the Defendant.

Well after the fact, in October 2014, it was Mr. Jacky Chen who authored and signed the letter on behalf of the Defendant that advised of the company’s intention to continue with its existing service provider. The evidence was that at the time of signing the Contract, Mr. Jacky Chen gave a copy of the Defendant’s contract with its then existing service provider to the Claimant. Mr. Jacky Chen thus had access to company documents that one would not expect to be available to a person who was simply an employee and had authority to provide that confidential company document to the Plaintiff. Furthermore, Mr.

Jacky Chen’s sister, Ms. Katie Chen was present throughout the trial but was not called to testify to support Mr. Jacky Chen’s statement that her brother was a mere unauthorized employee. The Defendant allowed Mr. Jacky Chen to hold himself out as an authorized representative for the purpose of executing the Contract and other documents. The Claimant was entitled to rely on the signature of Mr. Jacky Chen as determinative. If Mr. Jacky Chen was not in fact authorized, then the Defendant had the ability to seek compensation from Mr.

Jackie Chen by way of third party notice in this action and elected not to do so. [ 9 ] In relation to Mr. Chen’s position that he did not understand the Contract terms he signed, that defence is also not accepted. Mr. Chen’s testimony (without an interpreter) is not evidence of his lack of facility with English. Mr. Chen appeared to understand that he had signed a contract because he stated his belief that he signed the Contract because the Claimant had stated that its rate would be lower than that of the present service provider (which it was). Mr. Chen’s sister was not called to testify as to Mr.

Chen’s capacity with English. Mr. Chen had no apparent difficulty in signing a letter written in English in October 2014. That letter shows a command of

English and even reveals an understanding of the concept of contracts and their terms. One would expect that a company is not going to permit someone who does not have the necessary language facility to send a letter on behalf of the company that has legal significance. If Mr. Chen did not understand the document he was signing, it was incumbent on him not to sign it. The terms of the Contract are clear on their face. The terms of the Claimant’s form of contract were also virtually identical to that of the competitor contract that the Defendant had signed and then re-negotiated.

The Defendant cannot be relieved of its contractual obligations by later asserting that the person who signed it on their behalf did not have sufficient command of English to understand the terms. [ 10 ] The Defendant executed a legally binding contract which it breached.

Under the terms of that Contract, the Claimant is entitled to its liquidated damages as claimed ($425.25) and is entitled to its fee for bringing and returning the bins on January 21, 2015 ($246.75) for a total judgment of $672.00 plus interest at the contractual rate of 2% per month (24% per annum) running from February 21, 2015, plus costs. __________________________ M. Pratchett Adjudicator