W3 Consulting Ltd. v. Rimmer, 2019 BCPC 221

Citation: W3 Consulting Ltd. v. Rimmer 2019 BCPC 221 Date: 20190903 File No: 170294 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: W3 CONSULTING LTD. CLAIMANT AND: RODNEY RIMMER DEFENDANT RULING ON APPLICATION OF THE HONOURABLE JUDGE L. MROZINSKI Appearing for the Claimant: J. van Driesum Counsel for the Defendant: D. Williams Place of Hearing: Victoria , B.C. Written Submissions: August 23, August 20, 2019 Date of Judgment: September 3, 2019 I.

Introduction [ 1 ] In this Small Claims action, the claimant W3 Consulting Ltd. (“W3”), represented herein by Mr. van Driesum, sought judgment against the defendant, Mr. Rimmer, on its unpaid accounts, plus interest and filing and service fees. In its claim, W3 itemized its five unpaid invoices and, in addition, claimed contract interest at the rate of 18.56% annually in the amount of $1,565.61. After trial, the claimant was awarded the total value of his outstanding invoices, interest as claimed in the amount of $1,565.61, plus filing and service fees.

[ 2 ] As the successful party, W3 was also granted its reasonable expenses as agreed to by the parties, or as otherwise ordered by the registrar. [ 3 ] In this application, W3 seeks two orders in relation to its claim and its costs. First, relying upon Rule 17(14) of the Small Claims Rules , W3 seeks a correction of the order granting it interest in the amount of $1,565.61. W3 submits that its claim is for contract interest at the annual rate of 18.56% from the date of each of its unpaid invoices.

W3 calculates it is owed interest in the amount of $7,421.96 to the date of judgment. [ 4 ] In addition, pursuant to Rule 20(5), W3 seeks an award equal to 10% of the value of its claim on the grounds that the defendant’s reply and counterclaim had no reasonable chance of success. In support, W3 points to two settlement offers before and after judgement which were rejected by the defendant. [ 5 ] Mr. Rimmer submits that Rule 17(14) has no application in this case as W3 did not expressly claim contractual interest to the date of the trial, or judgment, though it was open to the claimant to do so. Mr.

Rimmer points to the absence of any claim or submissions regarding the precise calculation of interest sought and posits that the absence of an award of such interest is the fault of W3 and not an error by the Court. [ 6 ] With regard to the claim for increased costs pursuant to Rule 20(5), Mr. Rimmer submits such a penalty is not appropriate as his claim had at least some chance of success. II.

Is W3 entitled to interest from the date of its invoices? [ 7 ] At issue in this part of the claim is whether the claimant can rely on Rule 17(14) of the Small Claims Rules for a correction of the judgment dated May 30, 2019 or whether, as Mr.

Rimmer submits, W3 failed to make a claim for such interest and cannot now revisit that point. [ 8 ] Rule 17(14) allows for the correction of orders and provides as follows: A judge may correct an accidental slip or omission in an order and may add provisions on expenses, interest or anything else that was not but should have been adjudicated on. [ 9 ] It is the case, as noted, that W3 specified its claim for interest in the pleadings.

However, in written submissions, after itemizing its claim for each of its five unpaid invoices, W3 stated as follows: In addition, the claimant seeks judgment for contractual interest at the rate of 18.56% per annum from the date of each invoice, costs associated with the filing and service of this claim, and costs. [ 10 ] This submission is repeated at the end of the claimant’s written argument. [ 11 ] It is also the case, as Mr. Rimmer submits, that the claimant says no more, and provides no interest calculations. Still, I find I cannot agree with Mr.

Rimmer that it is not for the Court to “create the Claimant’s interest calculation retroactively” if what is meant by that is that it is not for the Court to calculate interest based on W3’s claim for interest at the rate outlined from the date of each invoice as per the contract.

It is not unusual, though certainly not desirable, for this Court to engage in such an exercise, particularly in Small Claims Court where many litigants are self-represented. [ 12 ] On balance, and on reflection, despite the paucity of interest calculations, and even given the manner in which the claim was drafted, it seems apparent that W3 was seeking interest at the contractual rate from the date of the invoices up to the date of judgment.

That much is apparent in the submissions. [ 13 ] For that reason, I will correct my order and grant W3 interest to the date of judgment at the contract rate in the amount of $7,421.96. III. Is W3 entitled to extra costs? [ 14 ] W3 submits that pursuant to Rule 20(5) it is entitled to extra costs in this trial in the amount of 10% of its actual claim on the ground that Mr. Rimmer’s defence and counterclaim had no reasonable prospect of success. [ 15 ] W3 relies on both the reasons for judgment and, as noted, on its several offers to settle both before and after trial.

Before trial, following the settlement conference, W3 offered to settle in an amount less than what it has now obtained at trial. In the settlement offer, W3 referenced Mr. Rimmer’s principle argument that he thought Mr. van Driesum was, and represented himself to be, a lawyer, alongside the many documents that proved otherwise. Mr. Rimmer declined to settle even in the face of this evidence. [ 16 ] At trial, Mr. Rimmer repeated many, many times that he was under the impression Mr. van Driesum was a lawyer.

Aside from the evidence to the contrary being overwhelming, little it seemed turned on this fact, even were it true. However, in submissions, Mr. Rimmer made no mention of this aspect of his case. Rather, Mr. Rimmer argued against the existence of the terms of the contract alleged by W3. For the most part, it was Mr. Rimmer’s submission that after entering into a written contract with W3 for the provision of specific services at a specific price, other services were provided but on the understanding that Mr.

Rimmer would pay if and only if W3 successfully obtained compensation for him from the Workers’ Compensation Board. As for the first contract, Mr. Rimmer maintained the fiction that he thought Mr. van Driesum was a lawyer and sought disgorgement for fees paid on that contract. [ 17 ] This “fiction” as I have described it, took up some trial time but not exceedingly so. In the end, the essential and not entirely obvious question was whether the terms of the initial written contract continued to apply to other work done – work that was not anywhere committed to a written contract.

[ 18 ] This Court ultimately found for W3 on this issue but it would be incorrect to characterize this issue as one that had no reasonable basis for success. It was, on its face at least, arguable. [ 19 ] The counterclaim for disgorgement, which was both implicitly dismissed and in any event left unaddressed in closing submission, was groundless at least to the extent it was premised on the notion that Mr. Rimmer was led to believe Mr. van Driesum was acting as his legal counsel.

Still, the basic objection to the claim, that being that the terms of contract for much of the work were not specific enough for a person such as Mr. Rimmer, occupied virtually all of the written submissions and much of the trial. As such, and despite my view of the merits of the counterclaim, I do not find this is a case in which it would be appropriate to order costs pursuant to Rule 20(5) in light of the remainder of my judgment. [ 20 ] For these reasons, W3’s application for a correction of the order regarding interest owed to it is allowed.

The application for costs pursuant to Rule 20(5) of the Small Claims Rules is denied. _______________________________ The Honourable Judge L. Mrozinski Provincial Court of British Columbia