Universal Kitchen Cabinets v. Dhanai, 2019 BCPC 177

Citation: Universal Kitchen Cabinets v. Dhanai 2019 BCPC 177 Date: 20190731 File No: 1758673 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: UNIVERSAL KITCHEN CABINETS CLAIMANT AND: SHELINA DHANAI DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Counsel for the Claimant: P. Sahota Appearing in person: S. Dhanani Place of Hearing: Vancouver , B.C. Dates of Hearing: July 31, August 1, 2018 and May 24, 2019

Date of Judgment: July 31, 2019 INTRODUCTION [ 1 ] Universal Kitchen Cabinets claims against Shelina Dhanai based on an allegation that the claimant was hired by the defendant to install kitchen cabinets at 4706 West 4 th Avenue, Vancouver B.C. The claimant issued an invoice of $8,079.75 for the work and materials. The sum of $1,500 was paid and the claimant seeks the balance of $6,579.75. [ 2 ] The filed Amended Reply alleges the following:

a) There was no contract between the claimant and the defendant.

b) There was a deadline to complete the work which the claimant did not meet.

c) There is no basis to award compensation based on unjust enrichment.

d) The value of the work claimed was excessive due to faulty workmanship and that the installed cabinets did not match shop drawings and was not the same as those set out in the quote provided by the claimant. THE PARTIES [ 3 ] The claim is brought by Universal Kitchen Cabinets. Invoices and documents put into evidence by the claimant show that its correct legal name is Universal Kitchen Cabinets Ltd. [ 4 ] Universal Kitchen Cabinets Ltd. is a distinct legal entity and the claim should have been brought under the proper legal name. [ 5 ] The Notice of Claim names as the defendant Shelina Dhanai.

The correct legal name of the defendant is Shelina Dhanani. [ 6 ] When the claim was started, the claimant did not have legal counsel. The claimant may not have appreciated that the use of the correct legal names is important when legal action is taken. [ 7 ] In a faxed letter from the defendant to legal counsel for the claimant dated November 30, 2017, the defendant advises that her last name was spelled incorrectly.

The letter states: While you are doing that kindly correct the defendant’s last name spelling if registry allows or in the alternate please make an application to a judge allowing that. [ 8 ] No steps were taken by claimant’s counsel to correct the name of the defendant. [ 9 ] In these reasons I will refer to the defendant by her legal name, Shelina Dhanani. PRELIMINARY ISSUES AND ADJOURNMENT APPLICATIONS [ 10 ] At the commencement of the trial, Ms.

Dhanani requested that her son Izaam Kassam be permitted to assist her. [ 11 ] Pursuant to a Notice to the Profession and Public dated April 10, 2017 and titled “Use of a Support Person in Civil and Family Proceedings”, I allowed Izaam Kassam to sit with Ms. Dhanani during the trial but advised that he was not to give evidence or ask questions. [ 12 ] Notwithstanding this, Izaam Kassam still chose to ask for an adjournment based on a failure on the part of the claimant to provide a list of witnesses as was ordered at the settlement conference.

The claimant had said at the settlement conference that three witnesses would be called, two of whom were installers. Mr. Kassam said the defendant wished to question the installers as part of the allegation that the installation was performed negligently. [ 13 ] The claimant did not provide a witness list as required. Counsel for the claimant said that he also did not receive a witness list from the defendant, although Ms.

Dhanani said a list was given to the claimant directly because the claimant did not have legal counsel at the time. [ 14 ] The defendant, through Izaam Kassam, said that she would be prejudiced by not having the opportunity to question the installers. [ 15 ] I made an order that the claimant provide to the defendant the names and last known contact information for the installers. Further hearing time would be scheduled in case the defendant decided to call the installers as witnesses.

Otherwise the trial was to proceed. [ 16 ] I also confirmed that Izaam Kassam was not to be involved in making submissions or asking questions of any witnesses. [ 17 ] After the close of the claimant’s case, Ms. Dhanani asked for an adjournment so that she could retain legal counsel and to allow her to call a further witness named Jimmy Kassam. Jimmy Kassam is also known as Mo Kassam but in these Reasons, I will refer to him as Jimmy Kassam. Jimmy Kassam and Ms. Dhanani are in a personal relationship and she describes him as her partner.

For some reason, Jimmy Kassam was not named a party to this court action even though he was directly involved in the dealings with the claimant. [ 18 ] Ms. Dhanani said that Jimmy Kassam was not permitted to attend at the settlement conference and so she presumed that he was also not allowed to attend as a witness at the trial. That understanding was wrong. The settlement conference is only between the named

parties. At trial, the parties themselves determine who they will call as witnesses, subject only to the orders of the court. [ 19 ] I did not allow Ms. Dhanani’s request for an adjournment of the trial for the following reasons: 1) The time to get legal counsel was prior to the trial and not midway through the trial; and 2) The defendant made the decision not to have Jimmy Kassam available to give evidence.

This decision was based on a misunderstanding but that misunderstanding was not caused by the claimant or the court. [ 20 ] Following the completion of the first two days of trial, there were subsequent applications by the parties heard on October 5, 2018, January 11, 2019 and April 26, 2019. These dealt with disclosure of witness information, requests to allow further evidence and requests to dismiss the claim. I did make orders for disclosure and I refused the defendant’s repeated requests to allow evidence from Jimmy Kassam. I also refused Ms.

Dhanani’s repeated requests to dismiss the claim. [ 21 ] The bulk of the evidence was heard on July 31 and August 1, 2018. A continuation was set for February 6, 2019 but at the request of Ms. Dhanani and with the consent of the claimant, it was rescheduled to May 24, 2019. At that time, the defendant was to decide whether to call as witnesses two employees of the claimant in support of the defendant’s case.

If the defendant chose not to do so, then I would hear final submissions. [ 22 ] On May 24, 2019, counsel for the Claimant advised that his client was absent due to a business meeting and requested that the trial be adjourned. The Defendant advised that she was not planning on calling any further evidence and was ready to proceed with submissions. [ 23 ] Counsel for the claimant also said that the May 24, 2019 trial date was to allow him to complete his cross-examination of Ms. Dhanani. I was under the belief that the hearing date was only to allow Ms.

Dhanani the option of calling two of the claimant’s workmen as witnesses, and otherwise to proceed to submissions. I have now listened to the Digital Audio Recording of the last few minutes of the court appearance on August 1, 2018 and it is clear that the claimant had not completed its cross-examination. [ 24 ] At the time, I denied the adjournment request given the delays in having this trial completed. The May 29, 2019 had been set for some months now and the claimant elected to instead attend a business meeting that was only recently scheduled. Ms.

Dhanani was also dealing with a health emergency involving an out of town family member and a further court date would have been difficult to arrange due to the uncertainty of her availability. [ 25 ] Counsel for the claimant then asked for permission to submit written submissions, arguing that he needed to consult with his client before making submissions, this despite the fact that I had reiterated on October 5, 2018, January 11, 2019 and April 26, 2019 that May 29, 2019 was to be for submissions. The defendant was not opposed to written submissions so long as her son was able to assist her to prepare them.

I allowed this request and ordered that the parties provide written submissions. [ 26 ] In its written submissions, the claimant states that it accepts the directions given by me on May 24, 2019 that no further evidence was to be given and that written submissions were to be provided. Having learned that I was in error in thinking the claimant had completed its cross-examination, I would have been prepared to allow the claimant the opportunity to complete the cross- examination of Ms. Dhanani. The claimant is not asking for this opportunity now.

I will therefore proceed with reviewing the evidence and providing my decision. THE EVIDENCE OF MUKHWINDER SANDHU [ 27 ] Mukhwinder Sandhu testified for the claimant. He is the owner of Universal Kitchen Cabinets. The claimant is in the business of making and installing custom cabinets as well as washrooms and countertops. [ 28 ] Mr. Sandhu did not testify using an interpreter even though it was noted on the settlement conference record that he was to bring an interpreter for court. [ 29 ] It was clear to me that Mr. Sandhu had some difficulties with the English language.

For instance, he was asked by his counsel to read certain emails and he was unable to do so correctly. [ 30 ] Mr. Sandhu said he recognized the defendant because she came to his shop sometime in 2015 with her husband Jimmy. By Jimmy, Mr. Sandhu refers to Jimmy Kassam. Mr. Sandhu suggests that Ms. Dhanani was present to pick countertop colours. [ 31 ] During the bulk of his evidence though, Mr. Sandhu referred to “he” or “his”. Notwithstanding the language issues I am satisfied that Mr.

Sandhu was referring to Jimmy Kassam. [ 32 ] Based on a review of filed documents, Jimmy Kassam sent the claimant an email dated August 10, 2015 to ask for a price on two types of cabinets, that being plywood cabinet boxes versus melamine cabinet boxes. [ 33 ] In reply on August 10, 2015, Preet Sandhu of Universal Kitchens Cabinets provided pricing details as follows: Boxes white melamine and PVC doors: $4510.00 + GST Boxes white melamine and MAPLE shaker doors: $6050 + GST Boxes PLYWOOD and PVC doors: $4950 + GST Boxes PLYWOOD and MAPLE shaker doors: $7010 + GST [ 34 ] This pricing appears to have been given without any measurements taken of the home.

[ 35 ] Jimmy Kassam replied that same day with a request to send a proposed layout with cabinet sizes. [ 36 ] Preet Sandhu responded “Yes, we can make the proper design after you agree on the price”. [ 37 ] In turn, Jimmy Kassam replied by email “hi i really need to see how the design would be, before I can accept the price.” [ 38 ] Mukhwinder Sandhu testified that a price was agreed upon with Jimmy Kassam at $7,010 plus GST and that Jimmy Kassam agreed to pay a deposit of $1,500. [ 39 ] Submitted into evidence was a copy of a bank draft from the Toronto-Dominion Bank dated 2015-08-14 payable to Universal Kitchen Cabinets for the sum of $1,500.

The bank draft has a notation on it stating “installation by 26 Aug 2015”. [ 40 ] An invoice issued by Universal Kitchen Cabinets Ltd. dated 27/08/2015 refers to a description “Kitchen cabinets supplied and installed” at a price of $1,428.57 and GST $71.43, for a total of $1,500.00. I am satisfied that this was really in the nature of a receipt for payment. [ 41 ] Mr. Sandhu said that the bank draft was given to him by Jimmy Kassam when Mr.

Sandhu attended at the house where the cabinets were to be installed. [ 42 ] I was next referred to a document with a drawing under the letterhead and logo for Universal Kitchen Cabinets Ltd. dated “20/Aug”. The customer name is set out as “Jimmy”. It provides rough drawings with measurements and there are notes that refer to “Box plywood” and maple doors. In the middle of this document is a handwritten note that reads: $7010 + GST -1500 $5501 [ 43 ] A further document dated 21/9/2015 under the Universal Kitchen Cabinets Ltd. name and logo refers to the customer as “Jimmy”.

It sets out various measurements and has written notes that state: Rush Job No confirmation Need Monday morning or afternoon [ 44 ] Mr. Sandhu said that the cabinets were made and the installer attended at the home on August 28, 2018 to install the cabinets. In cross-examination, Mr. Sandhu was asked about the notation on the bank draft that stated: “installation by 26 Aug 2015”. Mr. Sandhu responded then that the installation occurred on August 26 or 27. [ 45 ] Mr. Sandhu said that following the installation, he sent his installer to the home to pick up the balance owing. Mr.

Sandhu said there was no response at the door. [ 46 ] Mr. Sandhu said that his “office girl” called Jimmy to ask for payment but there was no response. [ 47 ] Mr. Sandhu provided copies of emails sent to Jimmy Kassam in September 2015 asking for payment. [ 48 ] Mr. Sandhu confirmed that his discussions with Jimmy Kassam were either in the English or Hindi language. [ 49 ] When Mr. Sandhu was asked by Ms. Dhanani in cross-examination why the claimant was suing her, Mr. Sandhu agreed that Ms. Dhanani was being sued because she owned the house. The exchange between Ms. Dhanani and Mr.

Sandhu was as follows: SHELINA DHANANI: So are you only naming me as a defendant because you feel that I own the house? MUKHWINDER SANDU: Right. THE EVIDENCE OF SHELINA DHANANI [ 50 ] Shelina Dhanani testified that she had no direct involvement or contact with the claimant. She denied having any email contact or communication with the claimant by phone or in person. [ 51 ] Ms. Dhanani owns the home located at 4076 West 4 th Avenue, Vancouver BC where the cabinets were installed. Jimmy Kassam was described as her partner. She said he lives most of the time at the West 4 th Avenue home.

However, she denies that he is her common law spouse and says that he has his own home. [ 52 ] Ms. Dhanani and Jimmy Kassam had discussed having a kitchen installed in a room in her house. She said that Mr. Kassam would handle the renovations as he was more knowledgeable in the area. Ms. Dhanani said that the budget for installation of cabinets would be $4,500. [ 53 ] Ms. Dhanani recalls only attending the claimant’s place of business once. She said that she, Jimmy Kassam and her son Izaam Kassam were driving to various kitchen places. The last place they attended was that of the claimant.

Jimmy and Izaam Kassam went into the store while Ms. Dhanani remained in the car. Izaam Kassam received an urgent call on his cell phone and Ms. Dhanani went into the store to give the phone to her son and then left. Ms. Dhanani said that Jimmy Kassam and Mr. Sandhu were speaking in a language

she did not understand. Ms. Dhanani said that she only spoke English. [ 54 ] Ms. Dhanani returned to her car and waited. Jimmy and Izaam Kassam then returned to the car and Jimmy Kassam told her he was satisfied with the quote from the claimant. [ 55 ] Ms. Dhanani said that she did not pick the colour of the cabinets or countertop and that she left this to Jimmy Kassam. Jimmy Kassam also decided on the cabinet materials. [ 56 ] Ms. Dhanani said that Jimmy Kassam would pay for any renovation work and that she would reimburse him.

She acknowledged that she reimbursed Jimmy Kassam for the $1,500 that he paid to the claimant. Ms. Dhanani denies being present when the payment was made. [ 57 ] Ms. Dhanani confirmed that she has a different email address from Jimmy Kassam. [ 58 ] Ms. Dhanani testified that she wanted the cabinets installed by August 26 or 27 as she had relatives staying at their home and needed the work completed before the relatives came. As I noted earlier, the bank draft given to the claimant had a notation on it stating “installation by 26 Aug 2015”. Ms.

Dhanani said the cabinets were installed on or about September 3 or 4, 2015 but when she was further questioned, Ms. Dhanani said she was away from the home at the time of the installation. When she returned to the home on or about September 3 or 4, 2016, the cabinets were installed. Ms. Dhanani is unable to say when the actual installation occurred. [ 59 ] Ms. Dhanani said the installed cabinets had many defects in them. She said they were not straight and that doors were not closing properly. She said that cabinets were smaller than they should have been and that the cabinet boxes were too short. [ 60 ] Ms.

Dhanani put into evidence photographs of the cabinets which her son took. I found that the photographs were of little use because of their poor picture quality. Two of the photographs purported to show a close-up of the exterior of a cabinet door where the doors appeared to be white in colour but other photographs of the cabinets taken from a few feet away showed the doors to be wooden. This may have been a lighting issue but I have no evidence to show this.

Other photographs were taken from such a short distance that I was unable to have a proper perspective of the object that the photograph was displaying. [ 61 ] Ms. Dhanani has not had repairs done yet, and she planned to wait until the litigation was over before attending to this. THE REPORT OF SHANE DAVIS [ 62 ] Ms. Dhanani has tendered the report of Shane Davis as an expert’s report. The claimant did not request that Mr. Davis be called for cross-examination. [ 63 ] The report is dated November 24, 2017. Mr.

Davis states that he is a Red Seal Journeyman Carpenter and that he has been designing and installing cabinets since 1995. The report does not set out what is meant by “Red Seal Carpenter” but I understand from my personal knowledge that a person with a Red Seal certification has obtained a high level of competence and ability in his or her area of work. I am taking judicial notice of this. The claimant took no issue with Mr. Davis’ qualifications. [ 64 ] I accept that Mr. Davis is qualified to give expert evidence in the area of carpentry and specifically designing and installing cabinets.

Furthermore, Small Claims Rule 10(1) allows me to accept evidence in any way I think appropriate. As no issue was made about this report or Mr. Davis’ qualifications, I have allowed it into evidence. [ 65 ] Mr. Davis’ report notes various deficiencies in the work carried out by the claimant.

Some of the issues include: 1) Drawer panels and shelves are not cut straight resulting in large gaps in most cabinets. 2) Shelves are not a reasonably tight fit such that when weight is placed on them there is a risk the shelves will shift and fall. 3) One cabinet door has additional holes in it that appear to be from a handle that was installed in the wrong location, removed and then installed elsewhere. 4) Two cabinet doors have physical damage to their exterior. 5) The cabinet doors appear not to have been aligned at the time of installation. 6) The cabinet boxes were a mixture of melamine and plywood. 7) The cabinets were 96” high rather than 101” high was referred to in the original quotation. [ 66 ] Mr.

Davis provided two different quotes to repair the deficiencies. One was based on the shop drawings and totaled $3,700 plus tax. The other was based on the original quotation and came to $5,720 excluding the countertop and $6,400 including all countertops. SUBMISSIONS OF UNIVERSAL KITCHEN CABINETS [ 67 ] The claimant argues that since “the Defendant did not raise any issue regarding deficiencies, the Defendant are stopped ( sic ) raising the issues of the deficiencies in the trial.” Ms. Dhanani’s filed Amended Reply specifically refers to faulty workmanship and so Ms.

Dhanani is not estopped from raising this argument. [ 68 ] The claimant also argues in the written submissions that this is “a clear case of quantum meruit ”. I assume that the claimant is arguing in the alternative. I understand that the claimant’s position is that there was a contract, and in the alternative, there is a claim for compensation on a quantum meruit basis.

[ 69 ] Quantum meruit is a claim for payment of a reasonable sum as compensation for services performed or work done. Entitlement to compensation on a quantum meruit basis depends on whether unjust enrichment can be shown: see the analysis set out in Wilson v. Fotsch , 2010 BCCA 226 , at para. 11 . [ 70 ] Universal Kitchen Cabinets has not set out in the Notice of Claim a request for compensation on a quantum meruit basis.

The suggestion of such a possible claim is only mentioned in the Amended Reply with its reference to unjust enrichment, which is a requirement to establish entitlement to compensation on a quantum meruit basis. Given that an unjust enrichment claim was referred to in the Amended Reply, Ms. Dhanani was aware of the possibility of such a claim even if it was not mentioned in the Notice of Claim. I will therefore deal with a claim for unjust enrichment in my decision. SUBMISSIONS OF SHELINA DHANANI [ 71 ] The defendant’s submissions were lengthy.

Some of it dealt with trivial matters such as receiving the claimant submissions by email and not regular mail. In my reasons, I will only discuss those submissions that are pertinent to my decision. [ 72 ] Ms. Dhanani pleads that there is no contract between her and the claimant. She refers to the following:

a) Mr. Sandhu testified that he only sued Ms. Dhanani because she was the owner of the home.

b) Jimmy Kassam was in charge of all work in the renovation.

c) The payment by way of bank draft was provided by Jimmy Kassam.

d) Emails from the claimant were sent to Jimmy Kassam’s email address.

e) Exhibit 3, which is a diagram with measurements, provides as a customer name “Jimmy.”

f) Exhibit 4 is the claimant’s copy of the bank draft and has a handwritten notation “Jimmy.”

g) Exhibit 5 is a letterhead document under the claimant’s name. It has as the customer name “Jimmy.”

h) Exhibit 7 is a September 23, 2015 email from the claimant that begins with “Hello Jimmy.”

i) Exhibit 9 is a September 18, 2015 email from the claimant that begins with “Hello Jimmy.”

j) Exhibit 10 is a September 16, 2015 email from the claimant that begins with “Good Morning Jimmy.”

k) Exhibit 11 is a September 21, 2015 email from the claimant that begins with “Hi Jimmy.”

l) No emails were addressed to the defendant. [ 73 ] Ms. Dhanani notes also that the style of cause sets out the incomplete name of the claimant and has an incorrect spelling of her last name. [ 74 ] Ms. Dhanani’s submissions refer to Jimmy Kassam as a head contractor although she never expressly referred to him as such in her evidence. REPLY BY UNIVERSAL KITCHEN CABINETS [ 75 ] The Claimant argued in its written submissions filed July 15, 2019 in reply to Ms. Dhanani’s submissions that Ms. Dhanani had to call Shane Davis as a witness at trial in order for his report to be admissible as evidence. However that is an incorrect understanding of the Small Claims Court Rules . Rule 10(4)(

a) allows the report to be tendered into evidence if a copy of the report is provided to all other parties at least 30 days before the report is introduced at trial. Universal Kitchen Cabinets could have required the report writer to attend court for the purposes of cross-examination, as permitted by Rule 10(6) , but did not do so. The report is therefore admissible. [ 76 ] Universal Kitchen Cabinets also argued that the rule in Browne v. Dunn (1893) 1893 CanLII 65 (FOREP) , 6 R. 67 , should apply to this case to prevent contradictory evidence from being put forth by Ms. Dhanani.

The rule deals with fairness at trial. When one party has an alternative version of events, that version should be presented to an opposing witness for comment. When this does not occur, then the court can consider this failure when assessing the credibility of the witness putting forth the alternative version of events. [ 77 ] Universal Kitchen Cabinets raises in argument that Mr. Sandhu was not questioned in cross-examination about exhibits 13, 14 and 15, and that these exhibits should not be allowed into evidence. Exhibit 13 is a diagram the claimant sent to Ms. Dhanani or more likely to Jimmy Kassam.

Exhibit 14 are photographs of the cabinets taken by Ms. Dhanani’s son. Exhibit 15 is the report of Shane Davis. [ 78 ] As stated in the decision Gill Tech Framing Ltd. v. Gill , 2012 BCSC 1913 at para. 29 , the rule in Browne v. Dunn is not an absolute or inflexible rule. Furthermore, Ms. Dhanani was not represented by legal counsel and was unlikely to even be aware of this rule of evidence. Small Claims Court Rule 10(1) states that a “judge may conduct a trial without complying with the formal rules of procedure and evidence”. Given Ms.

Dhanani’s lack of legal representation I will not impose upon her a strict requirement to adhere to rules of evidence and specifically the rule in Browne v. Dunn . ANALYSIS [ 79 ] I will address the following issues: 1) Incorrectly named parties

2) Is there a contract between the parties? 3) If there is no contract, does the remedy of unjust enrichment apply? INCORRECTLY NAMED PARTIES [80] The correct legal name of the claimant is Universal Kitchen Cabinets Ltd. [81] The correct legal name of the defendant is Shelina Dhanani. [82] When the Notice of Claim, the Reply and the Amended Reply were filed in this proceeding, neither party had legalrepresentation. It is likely neither party appreciated the need of having the correct legal name of the parties.

Simply put, if the claimantobtained judgment against Shelina Dhanai, that judgement would have no effect as against Shelina Dhanani. Likewise Universal KitchenCabinets Ltd. is a distinct legal entity and is not the same as Universal Kitchen Cabinets. [83] The fault for the errors in the party names lies with the claimant and the claimant took no steps to correct these errors.

Thedefendant even told the claimant’s legal counsel by fax that the last name of the defendant was spelled incorrectly. [84] This is more than just a mere “typo” as referred to in the claimant’s written submissions filed July 15, 2019 and found at page12. [85] It would be a simple matter for me to deny any claim against Shelina Dhanani because she was not properly named as adefendant but that would be for technical reasons only.

In order to resolve this dispute on a final basis though and in a “just, speedy,inexpensive and simple manner” as referred to in s. 2(1) of the Small Claims Act, I will order the amendment of the claim to reflect thecorrect legal name of the parties.

My order is as follows: 1) Pursuant to Small Claims Rule 8, the name of the claimant is amended to be Universal Kitchen Cabinets Ltd. 2) Pursuant to Small Claims Rule 8, the name of the defendant is amended to be Shelina Dhanani IS THERE A CONTRACT BETWEEN THE PARTIES? [86] There was no formal written contract between the two parties. [87] The evidence was clear that all of Mr. Sandhu’s dealings were with Jimmy Kassam. All email correspondence was directed toJimmy Kassam. Documents written under the claimant’s letterhead set out the customer name as “Jimmy”.

The $1,500 deposit wasprovided by Jimmy Kassam and not Ms. Dhanani as was suggested in the claimant’s written submissions. The demands for paymentwere all addressed to Jimmy Kassam. [88] There is no evidence to suggest that the claimant entered directly into a contract with Shelina Dhanani. [89] The next question I must address is whether Ms. Dhanani entered into a contract with the claimant through the actions of JimmyKassam. In other words, did Jimmy Kassam bind Ms.

Dhanani to a contract with a claimant because he was acting as her agent, whetherby way of actual agency or implied? [90] Jimmy Kassam was in charge of looking after home renovations and creating a kitchen in Ms. Dhanani’s home. The budgetedcost for the renovations was $4,500. There is no indication though that the claimant was ever told by Ms. Dhanani or Jimmy Kassam thatJimmy Kassam was acting as agent for Ms. Dhanani. [91] I refer to the decision D. Fogell Associates Ltd. v. Esprit de Corp

(1980) Ltd., (BC SC), where the courtstarted: [24] In the law of agency there are three forms of legal authority whereby an agent's conduct may bind the principal: actual expressauthority, actual implied authority and ostensible authority. [25] Actual express authority can be determined by consensual agreement and/or the contract of employment. Its scope is ascertainedby applying ordinary principles of construction of contracts, including any proper implications from the express words used, the usagesof the trade, or the course of business between the parties: Freeman and Lockyer (a firm) v.

Buckhurst Park Properties (Mangal) Ltd., [1964] 1 All E.R. 630 at 644 (C.A.). Unless the authority is restricted, the appointment of a person to an executive or director positionclothes that person with the authority which a person in his or her position normally has. [26] Actual implied authority is found to exist where an officer exceeds the authority usually attached to the position and does so withthe knowledge and acquiescence of the corporation. A leading example of implied authority is Hely-Hutchinson v.

Brayhead Ltd., [1967]3 All E.R. 98 (C.A.) where a chairman of a company, without express authority to enter contracts, did in fact through a course of conductenter into contracts for the company. The court (at 102-3) found that the directors knew of and acquiesced in the chairman acting as a defacto managing director of the company, and this course of conduct gave the chairman an implied authority to bind the company by hiscontractual decisions. [27] Ostensible authority is the authority of an agent as it appears to others.

In contrast to actual authority, ostensible authority isconcerned with what the outsider thinks while negotiating with the agent. Diplock L.J.'s

summary of the doctrine in Freeman, supra wasapproved by the Supreme Court of Canada in Canadian Laboratory Supplies Ltd. v. Engelhard Industries of Canada Ltd., (SCC), [1979] 2 S.C.R. 787, 97 D.L.R. (3d) 1 at 23-24. Diplock L.J. stated four conditions that must be fulfilled to entitle a contractorto enforce against a company a contract entered into on behalf of the company by an agent who had no actual authority to do so. It mustbe shown:

(

a) that a representation that the agent had authority to enter on behalf of the company into a contract of the kind sought to be enforcedwas made to the contractor; (

b) that such representation was made by a person or persons who had "actual" authority to manage the business of the company eithergenerally or in respect of those matters to which the contract relates; (

c) that he (the contractor) was induced by such representation to enter into the contract, i.e., that he in fact relied on it; and (

d) that under its memorandum or articles of association the company was not deprived of the capacity either to enter into a contract ofthe kind sought to be enforced or to delegate authority to enter into a contract of the kind to the agent (at 646). [This requirement is not anissue in B.C. since s. 21(1) of the Company Act deems companies to have the powers and capacities of a natural person.] [92] For there to exist actual authority to act as an agent, the agent must hold a position with actual authority or be in a positon thatcreates an implied actual authority. [93] Jimmy Kassam and Ms.

Dhanani were not legally married and Ms. Dhanani denies they were in a common law relationship.She referred to the fact that Jimmy Kassam still had his own separate home. Ms. Dhanani described Jimmy Kassam as her partner buttheir relationship appears to fall short of spousal relationship. Universal Kitchen Cabinets did not present any evidence to suggestotherwise. [94] I am not aware of any caselaw that suggests that in such circumstances, Jimmy Kassam would have actual authority to bind Ms.Dhanani to any contracts. Ms.

Dhanani did admit that Jimmy Kassam was given authority to have the home renovated to make a kitchen.However there was no evidence that Jimmy Kassam was authorized to enter into a contract on behalf of Ms. Dhanani, as opposed toentering into a contract under his own name. [95] Ms. Dhanani confirmed that she would reimburse Jimmy Kassam for monies paid but in my view that is not enough to prove onthe balance of probabilities that he had actual authority or actual implied authority to bind Ms. Dhanani to any contract. A promise toreimburse Jimmy Kassam is equally consistent with Mr.

Kassam entering into the contract personally. [96] The final possibility then is whether there was ostensible authority for Jimmy Kassam to bind Ms. Dhanani to a contract. Thatargument fails because there was no evidence of any representation made by Ms. Dhanani to the claimant that Jimmy Kassam had theauthority to enter into a contract on her behalf. This was a specific requirement referred to in the D.

Fogell Associates Ltd. decision,which in turn relied on various court cases including the judgment of the Supreme Court of Canada in Canadian Laboratory SuppliesLtd. [97] In my view there was no contract entered into between the parties. [98] My conclusion is supported by Mr. Sandhu’s acknowledgement that he only sued Ms. Dhanani because she owned the homewhere the cabinets were installed. IF THERE WAS NO CONTRACT, DOES THE REMEDY OF UNJUST ENRICHMENT APPLY? [99] As I stated previously, the Notice of Claim makes no claim against Ms. Dhanani on the basis of an unjust enrichment.

Thepossibility of such a claim was only raised in the Amended Reply filed by Ms. Dhanani. As the defendant was aware of the possibility ofsuch a claim even if it was not made by the claimant, I will address this issue. [100] Unjust enrichment is discussed in the case Harraway v. Harraway, 2009 BCCA 561 , where the Court stated: [14] Unjust enrichment has three elements: see Garland v. Consumers’ Gas Co., 2004 SCC 25 at para. 30 [Garland]: 1. An enrichment of the defendant; 2. A corresponding deprivation of the plaintiff; and 3.

An absence of juristic reason for the enrichment. [101] I refer to the decision Sabihi v. Dr. Mansur Roy Inc., 2013 BCSC 1571 , which stated: [31] Three judges of this Court in different commercial cases considered the doctrine of unjust enrichment and held that where there hasbeen enrichment and a corresponding deprivation in the circumstances of a non-contracting owner, a juristic reason for the enrichment ofthe non-contracting owner exists where there is a contract between the non-contracting owner and the party the plaintiff contracted with:see Elbee Development Corp. v.

A & D Masonry Ltd., 49 C.L.R. (2d) 214 (B.C.S.C.); Pacific National Exhibition v. Alpine StoneLtd., 2003 BCSC 852 ; Park v. K.S. Mechanical Ltd., 2012 BCSC 1751 . ….. [34] West Railway refers to Elbee Development Corp., Pacific National Exhibition, and Park, and submits that this Court hasconsistently held that if there has been an enrichment and a corresponding deprivation in the circumstances of a non-contracting owner inthe construction context, a juristic reason exists; namely, the contract between the non-contracting owner and the party the plaintiffcontracted with.

It says that where a non-contracting owner does not urge a contractor to carry out or complete its work, or makes norepresentations or guarantees that it will ensure payment to the contractor with respect to its work, a claim of unjust enrichment will notarise between the non-contracting owner and contractor. [102] For the purposes of my analysis I will presume that Ms. Dhanani has been enriched, although she may take issue with thatconclusion given her evidence of deficiencies.

[ 103 ] I accept that the claimant has put in time and materials for the installation of the cabinets and so there is a corresponding deprivation on the part of the claimant. [ 104 ] The question then turns to whether there is any juristic reason for the enrichment, being the installation of the cabinets. [ 105 ] In the circumstances of this case, if a contract existed for the installation of the cabinets it was with Jimmy Kassam. The defendant concedes such in her submissions. [ 106 ] I am mindful that Jimmy Kassam was not named a party to this action.

The defendant asked to call Jimmy Kassam as a witness but the claimant opposed this request. Therefore I am not making a finding that Jimmy Kassam owes any money to the claimant as he has not been given the opportunity to testify. [ 107 ] I find though that on the balance of probabilities, the claimant did have a juristic reason for the enrichment due to the contract with Jimmy Kassam. The decision Sabihi v. Dr. Mansur Roy Inc. at para. 34 , cited above, refers to a contract between a claimant and a third party as being a juristic reason for an enrichment.

Such is also the case here. [ 108 ] I conclude that there is no basis to award to the claimant compensation calculated on a quantum meruit basis due to unjust enrichment given that there was a juristic reason for the enrichment. [ 109 ] In light of my findings, there is no need for me to determine whether the work was negligently performed. FURTHER REQUESTS BY THE DEFENDANT [ 110 ] In her submissions, Ms. Dhanani asks that the claimant be ordered to refund the $1,500 deposit and remove the cabinets. There was no counterclaim seeking such an order and I will not make it. In any event, by Ms.

Dhanani’s own submissions the $1,500 was paid by Jimmy Kassam and not her and so it would not even be owed to her. [ 111 ] Ms. Dhanani also asks that I order payment of costs pursuant to s. 19(1) of the Small Claims Act. This

section does not entitle me to make an order for payment of costs such as those that may be awarded in Supreme Court. The definition of “costs” is found at s. 1 of the Act and refers to the fees, charges and expenses listed in the Small Claims Rules , and in particular

Schedule A of the Rules . I will make an order though that Ms. Dhanani be reimbursed for the payment of the Reply filing fee of $50. [ 112 ] Ms. Dhanani further asks that I award a penalty pursuant to Rule 20(5) where I have the option of ordering a penalty of up to 10% of the claim if the matter proceeded through to trial with no reasonable basis for success. However, I must also consider that Ms. Dhanani made three applications to the court to have the claim dismissed, the most recent occurring on April 26, 2019. There was no reasonable prospect of success in making this third application.

The other attempts at having the claim dismissed were also dismissed although orders were made for the claimant to provide disclosure. I ultimately made an order that Ms. Dhanani file no further applications unless she obtained my prior permission. [ 113 ] A further application was made by Ms. Dhanani on July 22, 2019 to set aside an order made by Judge Phillips of this court extending the time for the claimant to file its written reply to Ms. Dhanani’s written submissions. I dismissed this application as it was in effect an attempt to appeal Judge Phillip’s order, which can only be brought to the Supreme Court.

Furthermore, Judge Phillip’s order only gave additional time for the claimant to file its reply. There was no prejudice to the defendant as a result of Judge Phillip’s order since the defendant was not entitled to respond to the claimant’s reply. [ 114 ] I have a discretion whether to award a penalty pursuant to Rule 20(5) .Given these various failed applications by Ms. Dhanani, I decline to order the claimant to pay an additional penalty.

SUMMARY [ 115 ] I order as follows: 1) Pursuant to Small Claims Rule 8, the name of the claimant is amended to be Universal Kitchen Cabinets Ltd. 2) Pursuant to Small Claims Rule 8, the name of the defendant is amended to be Shelina Dhanani. 3) The claim of Universal Kitchen Cabinets Ltd. as against Shelina Dhanani is dismissed. 4) Universal Kitchen Cabinets Ltd. shall pay to Shelina Dhanani the sum of $50.00 representing the fee she paid to file the Reply. _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia