Citation: Imagepath Printing Solutions Inc. v. Inspired Architecture Inc. 2021 BCPC 22 Date: 20210211 File No: 1965360 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: IMAGEPATH PRINTING SOLUTIONS INC. doing business as PRIMEIMAGE TECHNOLOGIES CLAIMANT AND: INSPIRED ARCHITECTURE INC. AND AMIR HASAN FARBEHI doing business as INSPIRED ARCHITECTURE DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Counsel for the Claimant: B. T. Hara Counsel for the Defendant: V. Hamza Place of Hearing: Vancouver , B.C. Date of Hearing: January 29, 2021 Date of Judgment: February 11, 2021 INTRODUCTION

[ 1 ] The claimant, Imagepath Printing Solutions Inc. doing business as PrimeImage Technologies (“PrimeImage”), carries on business selling, leasing and servicing printers. [ 2 ] The defendant, Amir Hasan Farbehi, is an architect and the president of the co-defendant, Inspired Architecture Inc. [ 3 ] PrimeImage alleges that on July 9, 2019, it entered into a number of agreements with one or both defendants regarding the lease, servicing and eventual purchase of a Konica Minolta Bizhub c250i printer. The defendants deny that they entered into any agreement with PrimeImage. If an agreement did exist, Mr.

Farbehi denies that he entered into an agreement personally. THE EVIDENCE [ 4 ] On January 23, 2019, Jennifer Meredith Rogers, an inside sales representative for PrimeImage, placed an unsolicited call to Amir Hasan Farbehi, owner of Inspired Architecture Inc., in an attempt to solicit Mr. Farbehi to lease a printer. Mr. Farbehi was in fact interested in a printer capable of printing colour 11” x 17” documents for his business. Mr. Farbehi said that a high print resolution for images was important to him. [ 5 ] On January 23, 2019, Brendan Barr of PrimeImage emailed Mr. Farbehi with a proposal package.

This package did not specifically refer to the Bizhub c250i printer. [ 6 ] Mr. Farbehi had questions about the proposal, which Ms. Rogers answered in an email dated February 27, 2019. Mr. Farbehi’s questions dealt with the image quality for a Bizhub printer, whether PrimeImage could quote on Xerox and Ricoh copiers, the warranty, the buyout costs at the end of a lease, the costs of prints and whether there was a minimum charge for prints each month. [ 7 ] Among her responses, Ms.

Rogers advised that the buyout cost for the printer was 10% of the purchase price and that there was no monthly minimum charge for each print made. [ 8 ] On June 25, 2019, Ms. Rogers sent Mr. Farbehi an updated proposal package, which now presented two printer options, the Bizhub 308e and the Bizhub c250i. [ 9 ] Ms. Rogers arranged for Mr. Farbehi to attend at the PrimeImage office on July 9, 2019, to meet with Giuseppe Silvio (“Joe”) Russo, the president of PrimeImage. What occurred at the meeting is in dispute. [ 10 ] Mr. Farbehi wanted a print sample. Mr. Russo said that Mr.

Farbehi emailed a print sample to PrimeImage. Mr. Farbehi said he brought a USB drive with documents to be printed. Mr. Farbehi said that the PrimeImage staff had difficulties printing the sample document that required technical assistance. Mr. Farbehi was also concerned because it appeared that some computer application he did not have was required to print the document. [ 11 ] Mr. Farbehi says that the Bizhub c250i was not at the PrimeImage showroom and so he did not receive a demonstration of that particular printer. Mr. Russo says that the Bizhub c250i printer was there. [ 12 ] Mr.

Russo says that he worked out terms of a sale with Mr. Farbehi, and in support, he referred to some handwritten notes on a copy of the updated proposal package. That package set out a lease period of 66 months but beside this reference is a handwritten notation that read “60 months.” Mr. Russo says that Mr. Farbehi agreed to a lease term of 60 months. [ 13 ] Mr. Russo referred to another notation in the package that read “$100 Buyout.” Mr. Russo said that Mr. Farbehi agreed that at the end of the printer lease period, the lease buyout amount would be $100. Mr.

Farbehi confirms that he discussed the buyout option with Mr. Russo. [ 14 ] The package also referred to lease payments of $123 a month and a service contract rate of $0.01 per page for each black and white print and $0.065 per page for each colour print. The terms did not set out a minimum monthly charge for printing. Mr. Farbehi did not dispute these amounts. [ 15 ] At the end of the meeting, Mr. Russo and Mr. Farbehi shook hands. Mr. Russo believes that this signalled an agreement for the lease of the Bizhub c250i. Mr. Farbehi says he shook hands as a sign of politeness. [ 16 ] Mr.

Farbehi had to leave and so PrimeImage emailed various documents to Mr. Farbehi after the meeting. Mr. Farbehi said he wanted to review the lease terms before committing to the lease of the printer. Mr. Farbehi also said he left the meeting dissatisfied that he was not able to view the Bizhub c250i. [ 17 ] Later that same day, Ms. Rogers emailed Mr. Farbehi the following documents: 1. Lease Agreement, which includes a fine print Terms and Conditions

section with some 22 clauses, 2. Pre-Authorized Debit (PAD) Authorization, 3. Installation/Site Checklist, 4. Maintenance Agreement, which is comprised of 10 clauses, and 5. Purchase Option Agreement. [ 18 ] The documents named as the customer, Inspired Architecture Inc. None of the documents referred to Amir Hasan Farbehi as the customer. Also, the documents were not signed by PrimeImage. [ 19 ] On July 16, 2019, Ms. Rogers emailed Mr. Farbehi to say, “Just a reminder that we are waiting on your signatures on the

attached contracts.” [20] On August 12, 2019, Mr. Russo sent the same documents to Mr. Farbehi. Mr. Russo stated in his email: I have attached the documents please can you give me a call so we can finalize everything and move on your machine is wrapped upwaiting for delivery. [21] On August 15, 2019, Mr. Farbehi emailed Mr. Russo and Ms. Rogers, stating: I hope this email finds you well. We want to hold off on this inquiry. We will get back to you when we were ready to proceed. [22] Mr. Russo responded to Mr. Farbehi later that same day, stating: I hope this e-mail finds you as well.

When you were in my office you shook my hand and said to send you the paperwork to proceedforward, this is called a legally binding contract. I have left you messages without you calling me back, please call me back so we can discuss. Thank you. [23] PrimeImage filed the Notice of Claim shortly afterwards on September 16, 2019. The calculation of the claim is as follows: 1. Lease payments of $123 a month for 60 months, or $7,380. 2. A $100 buy out at the conclusion of the term of the lease. 3. Lost income for black and white printing at $0.01/page for the duration of the 60-month lease. Mr.

Russo estimated this at1,000 pages per month or $600. 4. Lost income for colour printing at $0.065/page for the duration of the 60-month lease, also estimated at $1,000 pages permonth, or $3,900. [24] Mr. Russo did not have any evidence to support his estimate of the number of pages that the defendants would have printed eachmonth. ANALYSIS [25] The test to determine if a contract exists is whether a reasonable person would believe that the parties have entered into anagreement, regardless of the parties’ real intentions: see Vancouver Canucks Limited Partnership v.

Canon Canada Inc., 2015 BCCA144 at para. 74. [26] The decision Salminen v. Garvie, 2011 BCSC 339 stated: 24 A contract is usually the product of negotiation, during which the terms of a proposed agreement are accepted, without qualification,by one party (the offeree) as presented by the other party (the offeror). 25 For parties to be bound in a contractual relationship, there must be a manifest meeting of the minds or consensus ad idem on all the essential elements of what that relationship will be: G.H.L. Fridman, The Law of Contract in Canada, 5th ed. (Toronto: Thomson CanadaLtd., 2006) [Fridman] at p. 14.

The absence of a formal signed and properly witnessed agreement does not change the binding nature of acontact. What is required is that the contracting parties express themselves outwardly in a manner indicating an intention to be bound tomutually-agreed and reasonably-certain terms. 26 The burden of proving consensus is on the party seeking to prove the existence of the agreement; the standard to be met is proof on abalance of probabilities: Reid v. Reid, 2011 BCSC 231 at para. 27, [2011] B.C.J. No. 298 (QL), citing Bell v. Bell (1998), (BC SC), 24 E.T.R. (2d) 169, [1998] B.C.J.

No. 1457 (QL) at para. 14 (S.C.). 27 The test for determining consensus ad idem at the time of contract formation is objective: it is “whether the parties have indicated tothe outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract”; it is“whether a reasonable... [person] in the situation of that party would have believed and understood that the other party was consenting tothe identical term”: Fridman, supra, p. 15; see also Smith v. Hughes (1871), L.R. 6 Q.B. 597 at 607 adopted in St. John Tugboat Co. Ltd.v.

Irving Refining Ltd., (SCC), [1964] S.C.R. 614, 1964 CarswellNB 4 at para. 19, and Remington Energy Ltd. v. B.C.Hydro & Power Authority, 2005 BCCA 191 at para. 31, 42 B.C.L.R. (4th) 31. The actual state of mind and personal knowledge orunderstanding of the promisor are not relevant in this inquiry: Hammerton v. MGM Ford-Lincoln Sales Ltd., 2007 BCCA 188 at para. 23, 30 B.L.R. (4th) 183, citing S.M. Waddams, The Law of Contracts, 5th ed. (Toronto: Canada Law Book Inc., 2005) at 103.

In short, ifa reasonable person would find that the parties were in agreement as to a contract and its terms, then a contract would exist at commonlaw: Witzke (Guardian ad litem of) v. Dalgliesh, [1995] B.C.J. No. 403 (QL), 1995 CarswellBC 1822 at para. 59 (S.C. Chambers). Thetest’s focus on objectivity animates the principal purpose of the law of contracts, which is to protect reasonable expectations engenderedby promises. [27] PrimeImage has the burden of proving on a balance of probabilities that an agreement was reached with one or both defendantson the terms as alleged.

PrimeImage submits that the parties agreed to an oral contract that set out the price, the parties and the property,being the Bizhub c250i. PrimeImage argues that all other terms dealt with the manner by which the parties would carry out the contract,which did not require the prior agreement of the defendants. [28] Mr. Farbehi raised a number of issues about the contract terms. He expressed concerns about paying PrimeImage for extrasupplies, fees for technical support due to changes in the defendants’ computer network and attorney fees in the case of a legal dispute. I

do not view these concerns as significant since they relate to charges for items or services not covered by the agreement and a commoncontractual term about paying legal costs. [29] What is more important is that this is not a simple transaction such as, for example, the one-time purchase of clothing or foodwhere an agreement on price, parties and property will suffice. This was a lease lasting 60-months. In my view, the defendants areentitled to know or have the opportunity to know about the terms that will govern a relationship of that length.

I refer to two examples. [30] Clause 3 of the Terms and Conditions of the Lease Agreement, titled “Representations and Warranties”, states among otherthings, that if the printer totally fails to function or perform, the defendants would only have recourse against the manufacturer, and mustnevertheless continue to pay the lease payments.

This term limits the defendants’ rights under the lease agreement and is the type ofclause that should have been brought to the defendants’ attention, as was discussed in the decision Tilden Rent-A-Car Co. v.Clendenning, (ON CA). [31] Clause 6 of the Terms and Conditions of the Lease Agreement, titled “Assignment by Lessor”, allows PrimeImage to assign thelease to any party at any time without notice to the defendants. PrimeImage planned to assign the lease to a third party, De Lage LandenFinancial Services Canada Inc., who would then replace PrimeImage as the contracting party on the lease agreement.

There is noindication that the defendants were aware of the intended assignment, let alone that in due course they would be contracting with DeLage Landen. [32] Two emails from PrimeImage to Mr. Farbehi are consistent with the view that PrimeImage required signed documents beforethere was an agreement. The July 16, 2019 email from Meredith Rogers reminded Mr. Farbehi that his signatures on the attachedcontracts were required. The August 12, 2019 email from Mr. Russo asked Mr. Farbehi to call him to finalize everything. [33] Mr.

Russo also confirmed that PrimeImage never delivered the Bizhub c250i printer to the defendants because they did not signthe documents, which is consistent with PrimeImage requiring the execution of the documents before any agreement was finalized. [34] Given that the Lease Agreement was for a 60-month term, it is reasonable that the defendants wanted to approve the terms of theagreement beyond the price, parties and property.

I find that a reasonable person viewing the circumstances as I have set out, wouldconclude that a contract did not exist between the parties. [35] I add that there is no evidence that PrimeImage believed that it entered into an agreement with Mr. Farbehi personally.

As Istated, all documents prepared by PrimeImage were only in the name of Inspired Architecture Inc. [36] If I am wrong and a binding contract did exist between PrimeImage and one or both defendants, then I also find that no damagesare payable to PrimeImage in any event. [37] Clause 2 of the Terms and Conditions of the Lease Agreement reads as follows: 2.

RENTAL Customer shall pay to lessor on the first day of each payment period of the term, the Rental Amount set forth on the reverseside (“Rental”) commencing in the month during which the Equipment is delivered to Customer and continuing for the Term. [38] As PrimeImage never delivered the Bizhub c250i printer to the defendants, then according to Clause 2 of the Terms andConditions, the defendants do not owe any rental payments. As such, I dismiss the claim for unpaid lease payments of $123 a month for60 months. [39] PrimeImage also claims for lost income for printing that the defendants could have made.

The claimant’s estimate of the numberof prints that the defendants could have printed is based on speculation. More importantly, the Maintenance Agreement terms do notprescribe a minimum monthly charge for prints. The defendants were unable to print any documents because PrimeImage neverdelivered the printer. Having not printed any documents, there is no basis for this claim and I dismiss it. [40] The final claim is for the payment of $100 as a buyout at the conclusion of the lease term.

According to the Purchase OptionAgreement, the buyout option only applies if Inspired Architecture Inc. exercises the purchase option. There is no evidence that InspiredArchitecture Inc. ever exercised the purchase option. Furthermore, the option to purchase only becomes available upon the completion of the 60th month of the lease, which will not be until July 2024, and upon receipt of 60 lease payments, which Inspired Architecture has notpaid. There is no basis for this claim and I dismiss it.

SEC. 20(5) PENALTY [41] The defendants seek an order that PrimeImage pay a penalty pursuant to Small Claims Rule 20(5), which allows me to award apenalty if a claim is pursued through to trial with no reasonable basis for success. [42] The claim against Mr. Farbehi personally had little chance of success since even the claimant’s own documents indicated that thealleged contract was only with Inspired Architecture Inc. I note though that Mr.

Farbehi would have still been required to attend the trialsince he acted on behalf of his company in all dealings with the claimant. [43] I am not satisfied that the claim against Inspired Architecture Inc. had no reasonable basis for success. The question of whether acontract existed is determined on objective grounds but the decision to pursue the claim is determined by the subjective belief that acontract was entered into. I saw no indication that Mr. Russo, on behalf of the claimant company, was pursuing the claim knowing that ithad no legal basis. [44] Based on the above, I decline to award a penalty.

SUMMARY

[ 45 ] I dismiss the claim of Imagepath Printing Solutions Inc. doing business as PrimeImage Technologies against Inspired Architecture Inc. and Amir Hasan Farbehi doing business as Inspired Architecture. [ 46 ] Pursuant to Small Claims Rule 20(2), Imagepath Printing Solutions Inc. doing business as PrimeImage Technologies will pay to Inspired Architecture Inc. and Amir Hasan Farbehi doing business as Inspired Architecture, the sum of $50, representing the fee for filing their Reply. _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia