Klondike Contracting Corporation v. Abadian, 2021 BCPC 173

Citation: Klondike Contracting Corporation v. Abadian 2021 BCPC 173 Date: 20210709 File No: 1963492 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: KLONDIKE CONTRACTING CORPORATION CLAIMANT AND: EHSAN ABADIAN DEFENDANT RULING ON APPLICATION OF THE HONOURABLE JUDGE W. LEE Representing the Claimant: E. Schapira Counsel for the Defendant: A.K. Hall Application received from the Claimant: June 15, 2021

Written Submissions received from the Defendant: June 28, 2021 Date of Judgment: July 9, 2021 Ruling on Application for Expenses Pursuant to Small Claims Rule 20(2)(

c) Introduction [ 1 ] On June 1, 2021, I ordered Mr. Abadian to pay to the claimant Klondike Contracting Corporation the sum of $35,000 plus fees. I also held that the claimant was entitled to any other reasonable charges and expenses relating to the conduct of the proceedings pursuant to Small Claims Court Rule 20(2)(c). My reasons were reported under the case citation 2021 BCPC 145 . [ 2 ] The claimant, Klondike Contracting Corporation, has submitted a claim for expenses as follows: 1. National Wood Flooring Association (Review of Kosmaty Report) $50 (USD) or $60.50 (CAN) 2.

Canadian Flooring Consultants (Report of Wayne Laforet) - $700 for the report and $250 for travel by Mr. Laforet from Kelowna to Vancouver, plus taxes. 3. Land Title Search for the Abadian property $12.77 4. Parking for Eric Schapira $34.70 5. Parking for Tim Keith $17.50 6. Photocopying of documents at Staples $115.88 [ 3 ] The defendant opposes the claim for any costs based on there being divided success at trial. Alternatively, if costs are awarded, it should be limited to the sum of $163.50. Unfortunately I was not given a breakdown of how this sum was calculated.

From a review of the defendant’s written submissions, no issue was taken with respect to the Land Title Office charge of $12.77, Mr. Schapira’s parking costs of $34.70 and photocopying charges of $115.88. These items total $163.35. Analysis Divided Success at Trial [ 4 ] Mr. Abadian argues that success at trial was divided and so there should be no award of costs. He cites the following cases in support: • Infinity Roofing v. Bernhardt , 2018 BCPC 170 • McKay v. Richards , 2019 BCPC 270 • Westcore Services Ltd. v. Weninger Ltd. , 2017 BCPC 323 • Panaich v.

Abbotsford Truck & Trailer Repair Ltd. , 2016 BCPC 180 • Williams v. Life Studios Inc. , 2013 BCPC 26 • GMA Machinery Canada Ltd. v. Cartocci Imports , 2011 BCPC 53 [ 5 ] At trial, the claimant gave evidence of an unpaid balance of $69,807.28. I reduced this claim by the sum of $25,250, leaving a balance owing of $43,797.46. I awarded the claimant the statutory maximum of $35,000.

In the circumstances, I fail to see how the claim could be considered one of divided success when the claimant is awarded the statutory maximum of this court. [ 6 ] Aside from the Panaich case, the cases cited to me were all distinguishable from the facts of this case because they involved awards that were below the statutory maximum. In Panaich , the trial decision is reported at 2016 BCPC 34 where the claim was dismissed. The reference to “divided success” in the costs ruling reported at 2016 BCPC 180 referred to divided success at the costs ruling itself.

National Wood Flooring Association Fee [ 7 ] The National Wood Flooring Association was asked to review the report of Mr. Kosmaty, which was relied upon by the defendant. The Association identified two errors in Mr. Kosmaty’s report, which Mr. Kosmaty corrected in writing or at trial. I find that this cost related directly to the conduct of the court proceedings given that it was a response to Mr. Kosmaty’s report and resulted in corrections to the report. [ 8 ] The fee charged for this review was $50 (US) and the claimant’s submissions referred to an exchange rate of 1.21.

The defendant has not challenged this exchange rate in his written submissions and so I accept it. This results in the sum of $60.50 in Canadian dollars, for which the defendant must reimburse. Canadian Flooring Consultants (Report of Wayne Laforet)

[ 9 ] Klondike Contracting seeks reimbursement for the cost of Mr. Laforet’s report ($700 plus 5% GST) and the cost for his travel from Kelowna to Vancouver ($250 plus 5% GST). [ 10 ] Klondike Contracting submitted the report of Wayne Laforet into evidence and I relied upon it when arriving at my decision. The fact that Mr. Laforet was not called as a witness at trial does not prevent Klondike Contracting from claiming the expense of the report itself. The report was used to rebut the Kosmaty report relied upon by Mr. Abadian. Mr. Kosmaty also relied on certain parts of the LaForet report in his rebuttal report.

The Laforet report was a necessary expenditure for the trial, which the defendant will be required to reimburse. The amount will be $700 plus 5% GST, or $735. [ 11 ] I turn now to consider the claim for Mr. Laforet’s travel costs of $250, being his charge for travel from Kelowna to Vancouver. I am mindful that Small Claims Court proceedings contemplate resolving disputes in a “just, speedy, inexpensive and simple manner”: see s. 2(1) of the Small Claims Act .

Given the availability of other flooring experts in the Lower Mainland, as shown by the submission of the defendant’s counsel, I agree that the defendant should not be required to reimburse for Mr. Laforet’s travel costs. Land Title Office Search [ 12 ] The claimant conducted a title search for the Abadian property. This search served no purpose for the trial and Mr. Abadian need not reimburse the claimant for this cost. Parking [ 13 ] Klondike Contracting claims $34.70 to pay for Mr. Schapira’s parking and $17.50 for Mr. Keith’s parking.

These are relatively trivial amounts and I have to consider whether this court should spend time considering such claims. I received guidance from the decision Knittel v. Hazco Environmental, 2009 BCPC 158 at paragraph 6 , where the court considered claims for mileage: [6] In requiring an unsuccessful party to pay “any other reasonable charges or expenses”, this would typically include such expenses as experts’ fees. In Kelly v. Lam 2006 BCPC 98 , agents’ fees were allowed but mileage costs were not. I agree with the principle that mileage costs should rarely if ever be allowed.

The citizens of British Columbia are fortunate to have small claims courts to resolve their disputes in a just and civil forum. The litigant’s cost of attending and of getting to and from court are a small price to pay for living in a society which has this benefit. Exceptions may arise, such as where a litigant of modest means is required to travel a distance to defend a frivolous claim and avoid a default judgement.

Generally speaking however, mileage costs should not be routinely allowed. [ 14 ] In my view, the costs of parking are also part of the costs of getting to and from court and based on the Knittel decision, I will not order compensation for parking charges. Copies of Documents [ 15 ] Klondike claims reimbursement of $115.88 for photocopying costs paid to Staples. Mr. Schapira attended trial without bringing an adequate numbers of copies. Each party is required to have their own copy of documents and to provide the court with two further copies, one for the judge and one to be used as an exhibit.

The trial proceedings were delayed so that Mr. Schapira could attend a Staples store to make sufficient copies. I expect those costs would have been mitigated had the claimant made the proper number of copies at its own office. [ 16 ] The decision Knittel v. Hazco Environmental at paragraph 8 tells me the following: [8] The preferable approach is to adopt a general rule that, in cases where production of a large volume of documents are not required, disbursements such as photocopying, courier fees or long distance charges will not be recoverable.

Such an approach is in keeping with the goal set out in section 2(1) of the Act of creating an inexpensive and simple process. [ 17 ] The invoice from Staples refers to total copying charges of $100.48 and per page charges of $.16, meaning that there were 628 copies produced. This is a significant number of pages although the copying charges could have been mitigated by not having to resort to using Staples on the day of trial. Even though the defendant does not appear to be contesting the claim of $115.88, I will only allow $75 for photocopying expenses as a reasonable reimbursement for photocopying.

Summary [ 18 ] I have allowed the following expenses: • $60.50 National Wood Flooring Association Fee • $735 Wayne Laforet Report • $75 photocopies Order [ 19 ] Pursuant to Small Claims Rule 20(2)(c), I order that the defendant Ehsan Abadian pay the claimant Klondike Contracting Corp. the sum of $870.50. _____________________________

The Honourable Judge W. Lee Provincial Court of British Columbia