Teal-Jones Group v. Vyner & North Enderby Trading Date:, 2011 BCPC 335

Citation: Teal-Jones Group v. Vyner & North Enderby Trading Date: 20111201 2011 BCPC 0335 File No: 43526 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: THE TEAL-JONES GROUP CLAIMANT AND: ALLAN VYNER and NORTH ENDERBY TRADING LTD.. DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E.M. BURDETT Counsel for the Claimant: Deanna Brummitt Appearing in person: Allan Vyner Appearing for North Enderby Trading Ltd: Allan Vyner. Place of Hearing: Vernon and Vancouver , B.C.

Dates of Hearing: August 8, 23 and November 3, 2011 Date of Judgment: December 1, 2011 [ 1 ] The Teal-Jones Group is a company involved in the forest products industry. It is owned by Tom and Richard Jones. The company has sawmills and logging divisions throughout the province. Part of its operation is located in the Okanagan. [ 2 ] Allan Vyner is a lumber salesman. He conducts some of his business through one of his companies, North Enderby Trading Ltd., over which he has exclusive control. In 2008 he approached The Teal-Jones Group with an overture to work for them.

He met with Richard Jones and presented a proposal. A contract was prepared (Exhibit 1-4) and signed by both Mr. Jones and Mr. Vyner on July 11, 2008. The contract was for six months, and compensation was set at 3% of the net price to the mill of the sales Mr. Vyner made. A list of customers was provided with a term that Mr. Vyner was to “adhere to and focus on the customer list provided”. Mr.

Vyner’s responsibilities were set out in the contract as was a term that he was to relinquish all other pursuits of wood product sales for any other company, including his own companies. [ 3 ] This litigation concerns a sale of lumber Mr. Vyner made to an American company, Meynards, on behalf of The Teal-Jones Group. The claimants allege that the lumber was shipped and Meynards paid the invoice by sending a cheque to Mr. Vyner, instead of The Teal-Jones Group. The claimant seeks to recover that payment, less the commission owed to Mr. Vyner. [ 4 ] Mr.

Vyner alleges in the counterclaim that the claimant breached the contract Mr. Vyner had with them and withheld commission payments. He seeks damages. [ 5 ] The claimant called four witnesses. Mr. Vyner testified. [ 6 ] I found all of the witnesses called by the claimant to be credible. I cannot say the same about Mr. Vyner. He was an unsatisfactory witness. He was evasive throughout his testimony and at times he deliberately misled the Court. I have concluded that at times Mr. Vyner lied while under oath. His evidence was inconsistent. He failed to comply with court orders to disclose documents. I

cannot describe his testimony as credible and trustworthy. [ 7 ] These are my findings of fact. [ 8 ] Mr. Vyner and The Teal-Jones Group entered into a six month contract on July 11, 2008. The contract clearly set out the responsibilities of Mr. Vyner, and the customers to whom he was to sell. His goal, set out in the contract, was to sell 17,000,000 FBM of cedar lumber from the Teal-Jones Group. The contract could be terminated at any time by either party, upon providing written notice. The contract was amended due to concerns Mr. Vyner had about his customer base. Mr.

Vyner continued to work for the claimant after this contract was provided to him. He was eventually dismissed in the late fall of 2008 due to poor sales and an inability to get along with others in The Teal-Jones Group. [ 9 ] On September 8, 2008 Mr. Vyner sold a large quantity of cedar to Meynards, a company in Ohio. The wood was shipped and received by Meynards. Meynards was invoiced for $28,447.38. The shipment was comprised of wood from The Teal-Jones Group and wood provided by Mr. Vyner. [ 10 ] Meynards paid the invoice with a cheque for $26,229.55.

The cheque was made payable to Wolf Pack Forest Products Ltd., instead of The Teal-Jones Group. I conclude that Meynards issued payment in this manner due to instructions from Mr. Vyner. [ 11 ] Wolf Pack Forest Products Ltd. is a company which is not registered in British Columbia. I have concluded that it is an entity completely controlled by Mr. Vyner. [ 12 ] The Teal-Jones Group did not consent to have payment made to Mr. Vyner directly or any of the various companies he controls. [ 13 ] The cheque payable to Wolf Pack Forest Products Ltd. was deposited on October 3, 2008 in a bank account held by 0761424 B.C.

Ltd. Allan Vyner is the President of this company; his wife is the Secretary. [ 14 ] From the commencement of this action Mr. Vyner has maintained that he never received a cheque from Meynards; that he had no idea of who Wolf Pack Forest Products Ltd. was, and that he had no idea of who held the numbered bank account in which the cheque was deposited. It was not until counsel for the claimant succeeded, pursuant to

section 34 of the Canada Evidence Act , in obtaining electronic bank records, along with the signature card for the numbered account, that the truth was revealed. [ 15 ] When confronted with this evidence, Mr. Vyner stated that a woman, now living in Australia, probably deposited the money on behalf of the company and he had no knowledge of that deposit. I cannot accept this evidence. It was concocted by Mr. Vyner while in the witness stand when confronted with documentary evidence that showed the money had been deposited into his company’s bank account.

He maintained this fabrication even after being warned about perjury. [ 16 ] The claimant has proven that Mr. Vyner received the funds in October 2008. Had this been a criminal trial, I would have found that there was sufficient evidence to prove Mr. Vyner guilty of the indictable offence of theft. [ 17 ] Mr. Vyner has counterclaimed for commission due on the sale of the lumber, as well as damages for breach of contract. The claimant has acknowledged from the outset that the commission is owing to Mr. Vyner, and deducted that commission owing from their claim.

The balance of the defendants’ counterclaim is entirely without merit. That claim rests primarily on Mr. Vyner’s viva voce evidence, and as I have stated earlier, I have found Mr. Vyner to be entirely lacking in credibility. The counterclaim is dismissed. CALCULATION OF DAMAGES [ 18 ] The claimant is granted judgement against the defendants Al Vyner and North Enderby Trading Ltd. for $18,440.59, minus the commission owing to Mr. Vyner of $3,071.51. The net amount owed to the claimant is $15,369.08.

COSTS [ 19 ] Rule 20(2) of the Small Claims Rules provides that a judge may order that the unsuccessful party pay reasonable charges and expenses that directly relate to the conduct of the proceedings. Rule 20(5) allows a judge to award a penalty of up to 10% of the amount claimed if the party making the reply or counterclaim proceeded to trial with no reasonable basis for success. Rule 20(6) allows a judge to order a party whose conduct causes another party to incur expenses to pay or pay part of those expenses. [ 20 ] All of these Rules are applicable in this case. Mr.

Vyner’s conduct in these proceedings was shocking. He clearly knew that he had received payment from Meynards which was owed to the claimant, and yet he maintained in his pleadings and throughout a settlement conference, pre-trial conference and three days of trial that he did not. His counterclaim was without merit.

His conduct throughout the proceedings – failing a number of times to produce documents in direct contravention to court orders, misleading the court, and lying in the witness stand – all have contributed to extra costs for the claimant. [ 21 ] The claimant is entitled to the following: [ 22 ] A penalty under Rule 20(5) in the amount of $1,536.91; [ 23 ] Prejudgment interest on $15,369.08 from October 3, 2008 until today; [ 24 ] Filing and service fees of $216.00; [ 25 ] Expenses related to the attendance of counsel (airfare, mileage, accommodation, meals) on August 8, 2011 and August 23, 2011; [ 26 ] Expenses related to the attendance of witnesses for the claimant on August 8 and August 23, 2011 (airfare, mileage, accommodation and meals);

[ 27 ] Photocopying costs; [ 28 ] Costs related to any company searches; [ 29 ] Any other reasonable expenses related to the conduct of this litigation. [ 30 ] The claimants are to provide documentation to the Registrar corroborating the above noted expenses. The Registrar shall thereafter calculate the total expenses owed by Allan Vyner and North Enderby Trading Ltd. [ 31 ] The judgment, penalty, prejudgment interest and all expenses are payable forthwith. ________________________________ The Honourable Judge E.M. Burdett