Broadway Refrigeration v. Transworld Imports Inc. Date:, 2012 BCPC 34

Citation: Broadway Refrigeration v. Transworld Imports Inc. Date: 20120207 2012 BCPC 0034 File No: 24086 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: BROADWAY REFRIGERATION & AC CO. LTD. CLAIMANT AND: TRANSWORLD IMPORTS INC. DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP L.A. KAHN Appearing for the Claimant: Bill MacPherson Appearing for the Defendant: Isabella M.S. Briski Place of Hearing: Richmond , B.C.

Date of Hearing: January 20, 2012 Date of Judgment: February 7, 2012 INTRODUCTION [ 1 ] This matter came before me on January 20, 2012 pursuant to the Simplified Trial Rules under the Small Claims Act . [ 2 ] At the hearing, the witnesses were affirmed to tell the truth, and the Trial Statements were introduced into evidence after Bill MacPherson (“Mr. MacPherson”), on behalf of Claimant and Isabella M.S. Briski (“Ms. Briski”), on behalf of the Defendant, confirmed that the facts alleged in each of the Trial Statements were true and accurate to the best of their knowledge.

BACKGROUND [ 3 ] In October 2009, Transworld Imports Inc. (“Transworld”) contacted Broadway Refrigeration & AC Co. Ltd. (“Broadway”) to have them attend at the Transworld premises to provide a quote with respect to their heating ventilation and air conditioning units, as they were uncertain if they should be repaired or replaced. [ 4 ] Mr. MacPherson attended at the Defendant’s location and spoke with Michael Somers (“Mr. Somers”). Mr. MacPherson said that the Defendant’s existing rooftop heating and cooling units were in marginal condition. Mr.

Somers requested that a technician attend at the premises, so that Broadway can provide a quote.

[ 5 ] A representative from Broadway returned to the Transworld premises to assess the repair that were required for a quote, and to make some repairs due to some complaints about the “comfort level” in certain areas of Transworld’s premises. [ 6 ] According to Mr. MacPherson, one of his employees, Jeff, attended on the second occasion. The particulars of the work that he carried out are set out in the invoice in both parties’ trial statements. According to the Claimant’s Trial Statement, the Defendant’s representative, Michael Somers (“Mr.

Somers”), authorized this work. [ 7 ] As indicated in the Claimant’s Trial Statement, the invoice with job reference “A0156” was signed by Jeff on behalf of the Claimant and initialled by Mr. Somers on behalf of the Defendant. Mr. Somers did not deny that he had done so in his evidence, although he was not questioned by Ms. Briski, nor cross-examined on the point. [ 8 ] When Mr. MacPherson was queried by Ms. Briski why it took so long to commence the proceedings, Mr. MacPherson replied that it became a corporate policy to pursue a series of minor accounts which were delinquent, which led to this action. [ 9 ] Mr.

Somers, Eric Foster and Richard Berry testified on behalf of the Defendant that the work in the Broadway invoice was not completed, and any work, if it was done at all, was not authorized, as it was company policy to obtain quotes before arranging for work to be done. [ 10 ] None of the witnesses on behalf of Transworld could state with any certainty what work had been done, apart from obtaining a quote for the HVAC system. [ 11 ] Also, Peter Briggs was called on behalf of Transworld. The

summary of his evidence is set out in his report contained in the Defendant’s Trial Statement. Mr. MacPherson took no issue with Mr. Briggs’ opinion. [ 12 ] I am left with having to assess the credibility of the witnesses in order to determine if there was a contract between the parties underlying the claim made by Broadway. I found all of the witnesses to be honest and forthright. In particular, I was impressed with Mr. MacPherson’s recall of the events as compared to that of the Defendant’s witnesses.

Having made that finding, this is not a case where I am prepared to accept the Claimant’s evidence where it conflicts with the Defendant’s evidence in order to determine this case. [ 13 ] Rather, I am of the opinion that this is a case in which the work that was carried out was secondary to the purpose of Broadway’s attendance at the premises, as the parties clearly were in agreement that Broadway was to provide a quote concerning the HVAC system.

It follows, in my opinion, that Jeff from Broadway, prepared the quote and also carried out some repairs at the request of the Defendant. [ 14 ] However, it is difficult to understand the breakdown of time in the invoice between the time spent on the quote, as there was no evidence from the Claimant to explain if the total time at the Defendant’s premises included the work required to prepare the quote.

The parties agree that any time required for the quotation was not to be charged. [ 15 ] There was no evidence about the time it took to complete the repair work in the invoice and work order, nor did the Claimant call Jeff to give that evidence. Likewise, the Claimant did not provide any explanation why Jeff was not able to provide a written statement or testify. [ 16 ] Although I prefer the evidence of Mr.

MacPherson where it conflicts with that of the evidence given by the Defendant regarding what occurred with respect to the repairs, I do not accept that there was 4.5 hours of repair work undertaken. [ 17 ] The invoice makes reference on the first two lines to the roof top units and their apparent condition, as follows: CHECK OUT TWO 5 TON RTU. CALL BILL MC, IF NOT WORTH REPAIRING [ 18 ] As Jeff did some repair work for the Defendant, I find that the Claimant is entitled to recover $200 for the repairs.

I am not prepared to allow a truck charge, as Broadway would have had to attend in any event to prepare the quotation.

SUMMARY [ 19 ] There will be judgment against Transworld as follows: Repair work $200 5% GST for the repair work $10 Filing Fees $100 Service fees $20 Total: $330 [ 20 ] The Claimant will be entitled to pre-judgment interest from October 13, 2009 to the date of this judgment, and post-judgment interest as of the date of this judgment, as calculated by the Registry. ____________________ Lawrence A. Kahn