THE OWNERS, STRATA PLAN BCS 1871 CLAIMANT AND: WCS WASTE CONTROL SERVICES INC. DEFENDANT, 2022 BCPC 175

Citation: The Owners, Strata Plan BCS 1871 v. WCS Waste Control Systems Inc. 2022 BCPC 0175 Date: 20220125 File No: 2067477 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: THE OWNERS, STRATA PLAN BCS 1871 CLAIMANT AND: WCS WASTE CONTROL SERVICES INC. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.F. GALATI Counsel for the Claimant: E.L. Brown and G. Krueger Counsel for the Defendant: C.A. McLeod Place of Hearing: Vancouver, B.C.

Date of Hearing: December 17, 2021 Date of Judgment: January 25, 2022 INTRODUCTION [ 1 ] On or about April 29, 2011, the parties entered into a written agreement whereby the Defendant agreed to provide waste management services to the Claimant.

[ 2 ] The initial agreement was for a five year term but pursuant to one of the conditions therein it was automatically renewed for a further five years. [ 3 ] The agreement provided for monthly billing with respect to the services set out therein.

With respect to what is in issue in this trial, the primarily relevant condition is that the Defendant was to pick up garbage from the premises of the Claimant twice each week. [ 4 ] The Claimant paid the monthly invoices of the Defendant but in or about February 2020, the Claimant came to believe that its garbage was rarely picked up twice each week and on September 14, 2020, commenced this action for breach of contract, seeking to recover as damages the amounts it was charged for garbage pick-ups that were not performed from June 2015 through February 2020. [ 5 ] The initial agreement was terminated by mutual consent on or about March 24, 2020, when the parties entered into a new agreement which is currently in effect and which provides for only one garbage pick-up each week. [ 6 ] The Defendant says, inter alia , it did not breach the contract and in the alternative that the damages sought for the period up to August 31, 2018 are statute-barred pursuant to s. 6(1) of the Limitation Act , which provides that a claim must be commenced within two years after the day on which the claim is discovered in accordance with the further provisions of that statute.

SUMMARY OF THE CLAIMANT’S EVIDENCE [ 7 ] The Claimant called two witnesses, Mr. Sagar, the president of the Claimant strata corporation and Mr. Murray, who was formerly the sales manager of the Defendant. In addition, a Statement of Agreed Facts was filed by the Claimant. [ 8 ] Mr. Sagar testified to the history of the waste management relationship between the Claimant and the Defendant so far as he was aware of it.

He first started looking into the terms of the 2011 agreement in February 2020 after speaking to one of the Defendant’s drivers with respect to whether two garbage pick-ups each week were necessary. [ 9 ] Mr. Sagar consulted the records of the Claimant to determine the particular gate access FOBs which had been issued to the Defendant and then he accessed the records regarding those FOBs as to the entries to the secured area where the garbage containers were kept. Printouts of both sets of records were filed as exhibits.

He also prepared an Excel spreadsheet showing the dates of those entries which was also filed as an exhibit. [ 10 ] In general, the evidence in this regard was that if there was no record of a FOB swipe, that indicates that the Defendant’s driver had not gained access to the garbage container area; if there was one FOB swipe, that indicates the driver had accessed the area presumably to check the level of garbage in the container; and if there were two FOB swipes, that indicates entry was gained twice, once to check the level of garbage and again to pull the container to the street. [ 11 ] In addition, Mr.

Sagar reviewed all of the Defendant’s invoices to the Claimant, dating back to November 2015, as well as a ledger from the then management company for the Claimant, as to the invoices which were paid from June through November 2015. Five of these invoices were attached to the Statement of Agreed Facts and Mr. Sagar testified that each of these were reflective of the garbage pick-up charges (including price increases which are not in issue) in effect for certain periods of time from November 2015 through February 2020. The ledger was filed as an exhibit. [ 12 ] Based on his investigations, Mr.

Sagar testified that he determined that although the Claimant was paying for two garbage pick- ups each week, there were many weeks where there had only been one garbage pick-up. He prepared a

schedule of the respective amounts charged to the Claimant for garbage pick-ups for each period of time, which was attached as

Schedule “B” to the Notice of Claim. This

schedule also sets out the amounts the Claimant says was overpaid for pick-ups that were not made. It is acknowledged that for the period of June 2015 through November 2015, the amount paid to the Defendant has been estimated from the more limited information available on the ledger. [ 13 ] The Claimant acknowledges that the amount of its claim as set out in

Schedule “B” is overstated in that Mr. Sagar’s investigations determined that 11 pick-ups in respect of which an “overcharge” has been claimed, were actually made, based on the FOB records. Accordingly, the Claimant has reduced its claim for damages to the total amount of $26,449.38. In brief, this amount is said to reflect 50% of the amounts charged to it for garbage pick-ups at the rates in effect from time to time from June 2015 to February 2020 less the amounts charged for the 11 pick-ups. [ 14 ] Mr.

Sagar testified that prior to the commencement of this action, he had communications regarding pick-ups which had not been made, with Mr. Murray, who was then employed by the Defendant. He requested a credit or reimbursement from the Defendant in this regard. [ 15 ] Mr. Murray, testifying under subpoena, acknowledged these communications and said that he had researched the situation, including a review of the Defendant’s service records and discussed it with the Defendant’s leadership team.

He said that it was clear to him that there were missed pick-ups and occasions when the Claimant’s garbage containers were found to be empty. In the result he offered the Claimant a settlement. His email to Mr. Sagar regarding the offer of settlement was filed as an exhibit. It is dated May 28, 2020.

SUMMARY OF THE DEFENDANT’S EVIDENCE [ 16 ] The only witness for the Defendant was Mr. Dasanjh, its owner and president. [ 17 ] He described the type of service provided to the Claimant as one requiring two trucks. The first driver would pull the garbage container up to the street if there was sufficient garbage in it, in which case a second larger truck would attend later to empty it and it would subsequently be returned to the garbage container area in the secure portion of the underground parking lot. [ 18 ] Mr. Dasanjh said the costs of the Defendant would be the same if the first driver determined there was not sufficient garbage to

pick up but he made no reference to the fact that in that circumstance, the second larger truck would presumably not be required to attend. [ 19 ] Mr. Dasanjh said that prior to 2020, the Claimant did not request that the Defendant reduce the number of scheduled weekly garbage pick-ups and that it was never represented to the Claimant that there would only be a charge if there was an actual pick-up of garbage. [ 20 ] Mr. Dasanjh referred briefly to two computer printouts from the records of the Defendant, both of which were filed as exhibits.

One is entitled Customer Explorer and the other is entitled Customer Activity Audit Report. Both documents appear to be records of the garbage pick-up services provided to the Claimant for the period of time in question.

They show, inter alia , the date and a description of the service provided as to whether a “scheduled lift” was made or an “empty container” was found. [ 21 ] It appears that from July 2015 through the early part of May 2016 scheduled lifts were made twice each week and thereafter it appears that for the most part, scheduled lifts were only made once each week but that an empty container was encountered on a second day in each week. That second day was typically a Friday. [ 22 ] In cross examination Mr.

Dasanjh described that the information with respect to the type of service recorded on these documents results from the driver pushing a button on a computer device at the time the service is provided. There was no further explanation as to which driver would do this on days where two trucks attended. [ 23 ] He acknowledged that the driver on many of the days which were recorded as “empty container” was Fred Messenger, a long- time employee. Mr.

Dasanjh acknowledged that Fred Messenger was at some point listed as a witness for this trial. [ 24 ] On my review of the multi-page Customer Explorer document it appears that Fred Messenger was the driver for all or practically all of the “empty container” indications. [ 25 ] In reference to the evidence of the Claimant’s FOB records, Mr. Dasanjh testified that he was familiar with the Claimant’s building and described that it is possible to access and exit the garbage container area without a FOB provided the overhead door was open to start with.

He said that drivers are trained in this technique in order to save time. [ 26 ] Mr. Dasanjh acknowledged that Mr. Murray had been an employee of the Defendant and had dealt with the concerns of the Claimant. He said he could not recall if he approved the offer of settlement made by Mr. Murray and that he would not be surprised if Mr. Murray did not get his approval. [ 27 ] Finally, Mr. Dasanjh testified that the form of written agreement in issue in this case was drafted by him.

LIMITATION ISSUE [ 28 ] I am satisfied that the Claimant did not become aware that there may not have been two garbage pick-ups each week until February 2020 when Mr. Sagar started his investigations. [ 29 ] On the evidence, the garbage container in question was not of the type that could easily be looked into. Garbage was not placed directly into the container by residents but rather there was a network of garbage chutes which fed the garbage into a compactor which was connected to the container and after compaction, the garbage was fed into the container.

A step-ladder or footstool was required to check the level of garbage in the container. Mr. Dasanjh described that drivers could check the level by knocking on it or by looking into it from a certain angle without a footstool. He did not elaborate in this regard and it must be noted that this methodology for checking the level of garbage was not put to Mr.

Sagar in cross examination. [ 30 ] With respect to discoverability of its cause of action, I agree with the submission of the Claimant that it is not reasonable to expect residents or strata council members to routinely climb up, lift a heavy lid and peer into a large garbage container.

It is also not reasonable to expect a management company to do this. [ 31 ] I further agree that it is not reasonable to expect that someone other than the Defendant would keep track of the number of garbage pick-ups each week. [ 32 ] Further, although it may have been possible to look into the garbage container from a certain angle as testified to by Mr.

Dasanjh, I am not satisfied that this would have been readily apparent to most people and further I am not satisfied that it is reasonable to expect anyone other than a driver to have checked the level of garbage in this manner. [ 33 ] In any event, I am satisfied that the Defendant acknowledged liability in writing by its email of May 28, 2020 wherein Mr.

Murray stated that the Claimant was “correct in requesting a rebate on services we have not provided.” Further, I am satisfied that this email meets the requirements of the Limitation Act provisions whereby the limitation period is extended. [ 34 ] Accordingly, I find that no portion of the claim is barred by reason of a statutory limitation.

BREACH OF CONTRACT [ 35 ] The Defendant submits that there is no express or implied term in the 2011 agreement that the Defendant would not charge the Claimant when a second weekly pick-up of garbage was not required. [ 36 ] I agree that there is no express term to this precise effect but there is an express term that the frequency of “service” will be twice each week.

The Defendant says that even if it is established that there were times when there was no second weekly garbage pick-up, it never the less provided a second “service” each week by attending and determining that there was not sufficient garbage to warrant a second pick-up.

[ 37 ] The Defendant relies on its records to establish the second attendance each week where an empty container was encountered and says it is contractually entitled to charge for this pursuant to the 2011 agreement as it is the provision of a “service.” [ 38 ] There is an express term in the agreement providing that the “type or frequency of service” could be changed by the parties.

The Defendant does not rely on this term but in any event, I find that term could not be relied upon by the Defendant to unilaterally decide not to make a second weekly garbage pick-up without giving notice to the Claimant of its intention to do so. It is not in dispute that no such notice was given. [ 39 ] The Claimant does however rely on that term and the further provision therein that would require a “revised price” for any “adjusted service.” The Claimant says the “service” was adjusted when the Defendant routinely stopped making a second weekly garbage pick-up without revising the price.

I agree with the Claimant in this regard. [ 40 ] The records of the Defendant show that for a significant period of time it was making two garbage pick-ups each week which essentially ended in May 2016.

Thereafter the records indicate there was usually only one garbage pick-up each week as well as a second attendance where an empty container was encountered. [ 41 ] The type of service routinely provided until then, namely, two garbage pick-ups each week, changed and the Defendant breached the type or frequency of service term of the 2011 agreement by failing to revise the price for that changed or “adjusted” service. [ 42 ] However, the Claimant does not appear to seek to recover damages based on that breach but rather on the basis that the second weekly “service” or attendance by the Defendant did not actually occur.

The Claimant seeks expectation damages, being the value of the promised performance. [ 43 ] In this regard, the Claimant relies on the evidence with respect to the FOB entries to its premises by the Defendant.

The Claimant also says I should draw an adverse inference from the unexplained failure of the Defendant to call Fred Messenger as a witness, apparently him being the one person who could potentially have corroborated its records of attendances at the premises of the Claimant and perhaps explained how he gained entry to the garbage container area without using a FOB or otherwise cast doubt on the accuracy of the FOB records. [ 44 ] It is clear that Fred Messenger would have been able to provide material evidence and that as a current employee of the Defendant he was far more easily available to be called as a witness by the Defendant than by the Claimant. [ 45 ] The Defendant says it had no need to call Fred Messenger as it has provided and relies on its business records to establish its attendances at the premises of the Claimant. [ 46 ] Although in many circumstances this type of explanation might suffice, in the case at bar there is conflict between the respective records of the parties and Fred Messenger appears to be the one person who may have been able to assist in resolving that conflict. [ 47 ] The FOB records result automatically from the swipe of the FOB, without human interference.

The Defendant’s records with respect to attendances at the premises of the Claimant require a human being to push a particular button on a computer device, leaving the possibility for human error or for mischief. [ 48 ] Fred Messenger apparently was the person who attended the Claimant’s premises the second time each week, checked the garbage container and pushed the button on his computer device to ultimately produce the Defendant’s record that the container was empty.

His evidence would presumptively establish his attendance, the empty container and the Defendant’s business record of both those things. [ 49 ] Given the position of the Defendant that it provided a second weekly “service” and its knowledge that this was disputed by the Claimant, its failure to call Fred Messenger does lead to an irresistible inference that his evidence would be contrary to that position or at least not support it. [ 50 ] While I accept that the 2011 agreement allowed the Defendant to charge a monthly rate for servicing the Claimant’s garbage container twice each week, I find that the Claimant has established that over many weeks that did not occur.

In all of the circumstances, including the failure of the Defendant to call Fred Messenger as a witness, I find the evidence of the Claimant, particularly the FOB evidence, establishes on a balance of probabilities, the dates on which there was no second attendance or performance of a service by the Defendant but for which the Claimant was charged as though there had been. CONCLUSION [ 51 ] The Claimant is entitled to damages in the amount of those charges. I accept that those damages, the calculation of which was not disputed, are as set out in

Schedule “B” to the Notice of Claim but reduced as earlier mentioned in these Reasons, to the total amount of $26,449.38. [ 52 ] Upon discovering that it had been charged for services not provided, the Claimant acted expediently to terminate the 2011 agreement and enter into a new agreement for garbage pick-up, which provides for “service” only once each week.

Accordingly, I find the Claimant has not failed to mitigate its damages for the breach of the 2011 agreement by the Defendant. [ 53 ] In the result, there will be judgment in favour of the Claimant in the amount of $26,449.38. [ 54 ] In the absence of any evidence or submissions as to the calculation of pre-judgment interest, I will only award interest on the total amount of the judgment from the date the initial Notice of Claim was filed, to be determined by the Registrar of the Court, in accordance with the provisions of the Court Order Interest Act . [ 55 ] The Claimant is also entitled to filing and service fees as determined by the Registrar.

The Honourable Judge J.F. Galati Province of British Columbia