Antal v. Fard et. al. Date:, 2015 BCPC 214

Citation: Antal v. Fard et. al. Date: 20150723 2015 BCPC 0214 File No: 21891 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: PETER ANTAL, doing business as HUNCANDESIGN CLAIMANT AND: ARDESHIR FARD and FRASER VALLEY TRUSS LTD. DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Appearing in person: Peter Antal Appearing for the Defendants: J. V. Myers

February 2013: $400 by cheque #0047 (Total: $400) March 2013: $250 by cheque #0058; $1500 by cheque #0056; $1900 “cash payments from unspecified dates” (Total: $3,650) May, 2013: $500 by cheque #0088; $500 by cheque #0094; $1,027 by cheque #0096 (made payable to ICBC for the benefit of the Claimant); $600 by cheque #0097 (Total: $2,627) June, 2013: $1,000 by cheque #0101; $550 by cheque #0103; $1,964.56 by the Defendant’s payment of airfare for the Claimant on July 2 in the sum of $1,965.56 (Total: $3,515.56) Place of Hearing: Abbotsford , B.C. Date of Hearing: June 17, 2015 Date of Judgment: July 23, 2015

Summary of Evidence [ 1 ] The Claimant Peter Antal is a self-employed independent contractor with some expertise in the field of programming computerized wood-working machinery. He alleges in his claim that he was hired by the Defendant Ardeshir Fard to program a computerized router (a power tool used to shape and cut wood, not to be confused with the type of router that enables a wireless internet connection) for Mr. Fard’s company, Fraser Valley Truss Ltd. (the “Corporate Defendant”). His claim alleges that the Defendants owe him $13,701 for services that he has not been paid for.

This is based on the following calculations: 707.5 hours worked from February to June 2013 $19,825 Less amounts paid by the Defendants (6,124) Balance owing (not including interest) $13,701 [ 2 ] The Claimant also claims interest on any outstanding amount at the rate of 2% per month. [ 3 ] In their Reply, the Defendants acknowledged that there was some sort of relationship they (or one of them) had with the Claimant.

The Reply filed on behalf of the Defendants state “the Claimant has not included or miscalculated the payments I have made to him.” The Reply goes on to state that “in total $12,685.56 was owed to the Claimant for wages and work done” but that this entire amount has been paid to the Claimant by paying him $9,693 directly and $2,992.56 to third parties. [ 4 ] The Defendants have also brought a counter-claim in which they say the Claimant owes them $4,620 for a contract in which the Corporate Defendant was subcontracted by the Claimant.

The Claimant denies the existence of any such subcontract. [ 5 ] The arrangements made surrounding the business dealings between the parties are rife with a number of bad business practices often seen in matters which end up in Small Claims Court. The original negotiations between the parties were done verbally and were never set out in writing. The Defendant Fard does not speak much English and a friend of his translated for him when the parties were negotiating their terms.

That person did not testify, and ultimately each of the parties is only able to say what they understood was being agreed to (and they differ in their recollection.) The Claimant never invoiced the Defendants as the work progressed. The Defendant sent the Claimant an invoice for the alleged subcontract, but that invoice was dated eight months after the Claimant last worked for the Defendant. The Claimant testified that he never saw it until after this litigation was commenced.

The Claimant never kept any formal accounting records, other than noting how many hours he worked in a daily work diary. [ 6 ] The Claimant has used the diary to reconstruct what he says he is owed.

I have reformatted his accounting table below and set out what he alleges he was owed and paid by the Defendants as follows: Month Owing Paid Balance February 2013 $345.00 $400.00 ($55.00) March 2013 $4,492.50 $3.650.00 $787.50 April 2013 $4,410.00 $0* $5,197.50 May, 2013 $4,920.00 $2,627.00 $7,490.50 June 2013 $4,000.00 $3,515.56 $7,974.94 TOTALS $18,167.50 $10,192.56 $7,974.94 *A payment of $1500 made by the Defendants on April 12, 2013 (cheque #0084).

The cheque was returned NSF the same day and is therefore not included in the calculations. [ 7 ] The calculations in the table above do not include any interest or any NSF charges.

The Claimant was also assessed a $40 NSF charge by his bank for the $1500 cheque that the Defendant provided which was dishonoured when presented for payment. [ 8 ] For greater clarity, following is a breakdown of the payments which the Claimant testified that he received: [ 9 ] The Corporate Defendant has produced the records of its bank account and a cross-referencing of the entries in that account show that all of the payments referred to in the previous paragraph were in fact made, with two exceptions.

The Claimant was unable to particularize the $1900 worth of “cash payments from unspecified dates” and therefore it is not possible to cross-reference this with payments made from the account. The Defendant Fard has produced his personal credit card statement which shows that on July 2, 2013 he made a payment to Delta Air

for $1,965.56 using his Visa credit card. The entry on the statement shows the name of the Claimant. [10] On April 9, 2014, ten months after the Claimant last worked for the Defendants, the Corporate Defendant gave the Claimant itscheque #0193 for the sum of $2,000 but that cheque was dishonoured when presented for payment. Then two month later, the CorporateDefendant wrote another cheque to the Claimant, its cheque #0194, for the sum of $2,393 but once again that cheque was alsodishonoured when presented for payment.

In total, bad cheques written by the Corporate Defendant to the Claimant have cost theClaimant $120. [11] The Claimant admitted in cross-examination that there was likely a further sum that he received from the Defendants which wasnot included in his accounting, of at least $1500 and possibly as much as $2000. [12] The Claimant denied that he ever subcontracted the Corporate Defendant as alleged in the Counter-claim. He testified that hecontacted another company, George’s Woodworking, about using the Corporate Defendant’s machine.

The Claimant testified that theDefendant Fard was open to such an arrangement, but negotiations broke down because the Claimant and the Defendant Fard could notagree on how to divide any money earned by this arrangement. The Claimant used the Corporate Defendant’s machinery for one job forGeorge’s Woodworking and he received $1500 from that job.

The Claimant testified that he kept the entire $1500, but he agrees thatsome of that money should be credited against what he is owed by the Corporate Defendant, and suggests that $700 is a reasonableamount. [13] George Silveri, the principal of George’s Woodworking testified that the he subcontracted some work to the Claimant. Hetestified that he paid the Claimant $1500 for this work, plus tax, and that this was the only work he did with the Claimant.

He providedan invoice for this amount that he received from the Claimant. [14] The Defendant Ardeshir Fard testified that initially he discussed with the Claimant the possibility of having the Claimant workfor him, but that the Claimant preferred to work as a subcontractor. He acknowledged that the Claimant worked for him and testified thatsometimes he paid the Claimant money up front before work was actually done. The Claimant had testified that the agreed hourly ratewas $30 per hour, but that he later unilaterally decided to reduce this to $25 per hour from and after May 14th.

The Defendant testifiedthat the hourly rate was always agreed to be $25. [15] The Defendant Ardeshir Fard testified that the Claim is based on erroneous calculations.

He acknowledged that on the claim, heowes the Claimant the amount of the two NSF cheques that he wrote ($4,393.00) but testified that he stopped payment on these becausehe believed that the Claimant owed him a corresponding amount for work that the Claimant had done using his machinery.Unfortunately the Defendants did not keep any sort of records either of the hours that the Claimant worked for them, or of the hours thatthey claim the Defendant used their machinery for.

Analysis [16] The burden of proof in a civil case rests upon the claimant (or the defendant where a counter-claim is brought) to prove his orher case on a balance of probabilities. As the Supreme Court of Canada stated in F. H. v. McDougall 2008 SCC 53 , [2008] 3S.C.R. 41, at para. [49]: “[I]n civil cases there is only one standard of proof and that is proof on a balance of probabilities.

In all civil cases, the trial judge mustscrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.” [17] In this case, the evidence satisfies me that, notwithstanding the lack of any formal written contract, the parties entered into acontract in which the Claimant would provide his professional services to the Corporate Defendant on an hourly basis.

I am satisfied thatthe agreement was made with the Corporate Defendant and not the Defendant Fard personally because the work was performed on theCorporate Defendant’s premises, using the Corporate Defendant’s machinery and the majority of the payments made to the Claimantcame from the Corporate Defendant. I am unable to find any basis on the evidence presented for any finding of liability on the part of theDefendant Ardeshir Fard.

He certainly did not sign any sort of personal guarantee and even if there was any evidence of a spoken butunwritten guarantee, such a guarantee would be unenforceable under section 59(6) of the British Columbia Law and Equity Act. [18] There is a divergence in the evidence as to whether or not the agreed upon rate was $30, as the Claimant alleges, or $25 as theDefendant alleges. It is the Claimant who bears the burden of proving that the agreed upon rate was $30, and he is unable to provide anyindependent evidence that this was agreed.

In these circumstances where both versions are reasonably equally possible, the Defendant isentitled to the benefit of the doubt. The significance of this is that in his calculations, the Claimant has charged a total of 372.25 hours atthe rate of $30 per hour (i.e. 11.5 hours for February, 149.75 for March, 147 for April and 64 in May).

Accordingly the total amount heclaims to have earned should be reduced such that all of the time he worked is calculated at the rate of $25 per hour. [19] The Claimant and Defendants would have been wise to set up some reliable record keeping system for the hours worked by theClaimant. The Defendant Fard testified that he did not do so. The Claimant’s evidence is that he kept a record in a journal or daybook,and that document was entered into evidence.

This is the best evidence on that issue and I find that the Claimant has worked the hours heclaims to have worked for the Corporate Defendant in his accounting. [20] I find that the Corporate Defendant owes the Claimant the sum of $4,233.69 (before consideration of the counterclaim), whichis arrived at as follows: 652.25 hours at $25 per hour $16,306.25Less sums Claimant admits receiving in his accounting ($10,192.56) Less cash advances admitted to in Claimant’s evidence ($2,000.00)Plus NSF Charges $120.00

Total Owing to Claimant by Defendant $4,233.69 [ 21 ] There are two other aspects of the Claim which must be addressed. The Claimant has claimed the sum of $535.50 for “preparation of court documents, review of correspondence and records, helping preparing case.” Parties to a small claims action may claim costs as allowed under

section 19 of the Small Claims Act and Rule 20 of the Small Claims Rules. However fees for preparing a small claims case may not be included as a separate head of damages. Section 19(4) of the Small Claims Act precludes the court from awarding legal fees.

Section 15 of the Legal Profession Act prohibits unauthorized persons from practicing law, so if any person not authorized to practice law is charging the Claimant to help him with his claim, this would be an unlawful act, and is not something that the Claimant could recover judgement for. [ 22 ] The rationale for not allowing a claim for costs associated with making or defending a claim was explained in Johnson v.

Lamb Properties Inc. 2008 BCPC 0193 as follows: [24] Often parties to small claims proceedings make a claim for such items as wages lost on the days that they are required to attend court, or transportation costs to get to and from court. As a general rule these costs should rarely be allowed. Canadians are fortunate to have small claims courts in which to resolve disputes. This is a privilege lacking in many less fortunate nations.

The costs of attending court are a small price to pay for the privilege of living in a free and democratic society and the court should be reluctant to encourage the bringing of these claims. [ 23 ] Accordingly this portion of the Claim is dismissed. [ 24 ] The Claimant also asks for interest at the rate of 2% per month on any outstanding amounts. He acknowledges in his evidence that the Defendants never agreed to pay interest at this amount and it does not form a term of any written contract because there is no written contract.

It was something the Claimant thought he was entitled to do because had seen this set out on invoices. Where, as in this case, there is no agreement between the parties as to interest on outstanding amounts, the Claimant will be entitled to interest on any amount found owing to him as permitted under the Court Order Interest Act . [ 25 ] With regard to the counter-claim, the Defendants were unable to provide any evidence showing that the Claimant collected any money for work done by the Corporate Defendant or with its equipment other than the job performed for George’s Woodworking for $1500.

I accept the Claimant’s evidence that initially the Defendant Fard approved the Claimant doing this work, but the Claimant went ahead and used the Defendant’s machinery before reaching any agreement about how the proceeds of the contract would be divided. [ 26 ] Other than the contract with George’s Woodworking, the Defendants have failed to prove on a balance of probabilities that the Claimant owes any other amount and specifically they have not proven that the Claimant owes $4,620 as alleged.

It is a remarkable coincidence that the sum set out by Defendants in their counter-claim comes within $200 of the amount of the two NSF cheques and bank charges. [ 27 ] The Claimant should not have used the Corporate Defendant’s equipment for subcontracts without finalizing an agreement as to what the use of that equipment would cost him. Having said that however, it would be unfair to give the Corporate Defendant all of the proceeds from the contract with George’s Woodworking because then it would receive the benefit of the Claimant’s labour without compensating him for it.

The Claimant testified that the Corporate Defendant was willing to split the contract on a 70/30 basis with 70% of the contract proceeds ($1,050) going to the Corporate Defendant and 30% ($450) going to the Claimant. This is a reasonable division where the Claimant has proceeded unilaterally. Accordingly the Corporate Defendant will be awarded $1,050 on its counter-claim against the Claimant. Costs [ 28 ] There has been divided success in this action on the part of the Claimant and of the Corporate Defendant. The Claimant has proven only $4,233.69 of a claim originally made for $16,702.68.

The Defendant has proven only $1,050 of a counterclaim of $4,620. Under these circumstances, no costs will be awarded to either of these parties. [ 29 ] I had contemplated awarding costs to the Defendant Fard; however I am declining to do so. While no liability rests with Mr.

Fard personally, as the sole directing mind for the Corporate Defendant, he must bear moral responsibility for the fact that the Claimant was not paid what he was owed sooner and he also shares responsibility for the fact that nothing that transpired between the parties was put in writing, which contributed to the confusion about who the Claimant was contracting with. Accordingly I do not award him any costs. [ 30 ] The foregoing presumes that no party has made any offers to settle under Rule 10.1 which may give rise to claim for costs under that rule.

If this presumption is incorrect, the party who may be entitled to costs under Rule 10.1 may apply for those costs once interest has been calculated. Order [ 31 ] For the foregoing reasons, I find that the Defendant Fraser Valley Truss Ltd owes the Claimant Peter Antal the sum of $4,233. 69. Set-off against this amount will be the sum of $1,050 which I find that the Claimant owes to the Corporate Defendant on the Counter-claim. In the net result, I award the Claimant judgement against the Corporate Defendant for the sum of $3,183.69.

The Corporate Defendant is also ordered to pay interest on this amount, calculated under the Court Order Interest Act from and after June 30, 2013. [ 32 ] The claim against the Defendant Ardeshir Fard is dismissed.

Dated at the City of Abbotsford, in the Province of British Columbia this 23 rd day of July, 2015. ___________________________________________ (The Honourable Judge K. D. Skilnick)