Westcore Services Ltd. v. Weninger Ltd. Date:, 2017 BCPC 323

Citation: Westcore Services Ltd. v. Weninger Ltd. Date: 20170908 2017 BCPC 323 File No: 4940 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: WESTCORE SERVICES LTD. CLAIMANT AND: WENINGER CONSTRUCTION and DESIGN LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Claimant: N. Ross Appearing for the Defendant: B. Weninger Place of Hearing: Duncan , B.C.

Dates of Hearing: February 9, June 1, written submissions August 25, 2017 Date of Judgment: September 8, 2017 I.

Introduction [ 1 ] At issue in this small claims action is whether the defendant is in breach of contract for refusing to pay the claimant’s costs and expenses for the installation of HVAC work in several condominium units. [ 2 ] The claimant, Westcore Services Ltd. (“Westcore”), was overseeing the construction of a commercial/residential building (the “Kenneth Building”) when it contracted with the defendant, Weninger Construction & Design Ltd. (“Weninger”), to install HVAC systems in two apartment units (401 and 404).

The contract, dated for reference December 22, 2014 (the “Contract”), is a “cost plus” contract in which Westcore agreed to provide both labour and materials, defined as its “costs and expenses.” Weninger agreed to pay Westcore for its costs and expenses plus 20% upon certifying the work. Westcore finished the project and issued Weninger an invoice. Westcore says it has not been paid. [ 3 ] In addition, Weninger and Westcore verbally agreed that Weninger could purchase materials for the ventilation work on Westcore’s Andrew Sheret account.

Weninger’s employee did purchase such materials which were used in units 401 and 404, as well as in units 301 and 302 of the Kenneth Building. Westcore issued two further invoices to Weninger for those purchases on its account and, again, claims that it has not been paid. [ 4 ] Weninger does not deny that work was done on the two units and that materials were provided by, or obtained through, Westcore. Still, Weninger denies it owes Westcore any money.

Weninger submits that it has paid Westcore in full for both the Contract and its Andrew Sheret account purchases under a settlement agreement in which Westcore received $10,000.00 and subsequently removed a lien from one property in the Kenneth Building. [ 5 ] Alternatively, Weninger denies that it owes Westcore any money since it contracted to pay Westcore only once it had certified the work. Weninger maintains that Westcore has never provided the information necessary for certification and until that occurs, it is under no obligation to pay. II. Issues [ 6 ] This case raises two issues. The first is the

interpretation of the agreement under which Westcore was paid monies to remove a lien from one property in the Kenneth Building. The second involves the

interpretation of the Contract and whether, by agreeing Weninger would pay only once the work was certified, Westcore is bound to provide more information than it has before payment is due on all three of its invoices. III. Background [ 7 ] Weninger was, at the material time, the general contractor or builder in charge of construction of the Kenneth Building, also known as “Kenneth Park.” In March 2013, Weninger sub-contracted with Westcore Industries Ltd. (“WIL”) for plumbing, electrical and sheet metal/venting (HVAC work) in the Kenneth Building.

This contract, referred to by the parties as the “Base Building Contract,” was largely, though not entirely, complete in December 2014, when Todd Wilson, WIL’s Mehanical Manager, had a discussion with Brant Weninger about performing some “tenant improvements” in units 401 and 404. In particular, Weninger wanted HVAC work done on the units, consisting of the installation of ventilation systems for the kitchen range hood, bathroom fans and dryer exhaust vents into the units. [ 8 ] Mr. Wilson testified that he verbally agreed with Brant Weninger to perform this service.

He says he purchased materials for the project almost immediately. However, once Carey Miller, Westcore’s sole Director and Shareholder, learned of the project, he insisted the parties enter into a written agreement. It was then that Mr. Wilson obtained an ‘off-the-shelf’ form of contract from WIL’s front office and filled in the necessary details. The agreement is dated December 22, 2014, but signed by Brant Weninger on January 5, 2015. It is between Westcore and Weninger. [ 9 ] Brant Weninger recalls the verbal agreement with Mr. Wilson, and the subsequent insistence by Mr. Miller for a written contract. Mr.

Weninger recalls asking Mr. Wilson for a quote for the work and, indeed, one was provided. [ 10 ] Under letterhead entitled “Westcore Electrical & Mechanical”, WIL provided a quote to Weninger for the HVAC work in the two units in the amount of $2,348.55. Westcore estimated it would incur materials costs in the amount of $1,113.55. It estimated it would provide 21 hours of labour at $47.50 for a total labour cost of $997.50. Finally, it estimated its travel costs at 2.5 days at the rate of $95 per day for total travel costs of $237.50. [ 11 ] Mr. Miller and Mr.

Weninger agree that Weninger thought the quote was too high. Mr. Miller alluded in his testimony to other quotes also rejected by Weninger but there was only evidence of this single quote. [ 12 ] Rather than proceed with the work based on the quote, Weninger and Westcore entered into the Contract. The Contract price was Westcore’s total cost and expense for the work on the Contract plus 20%. Under the Contract, Weninger was obliged to make monthly payments to Westcore on account of the work performed as certified by Weninger.

Upon completion, or “total performance” of the work as certified by Weninger, all unpaid balances became due. [ 13 ] When he engaged Mr. Wilson in December 2014 to perform the tenant improvements in units 401 and 404 of the Kenneth Building, Brant Weninger was already concerned with the cost of the work on the Base Building Contract. Brant Weninger testified that he particularly wanted to avoid any “cross-contamination” of the work done by WIL (and Westcore) under the Base Building Contract

with Westcore’s work under the Contract. To ensure this did not occur, Weninger wanted Westcore to log all materials used for the Contract, and any labour. In addition, to save labour costs, Weninger intended to use one of its own employees to install as much of the HVAC work as possible in the two units. [ 14 ] Weninger sought and got approval from Westcore allowing its employee, “Steve,” to purchase materials for work on units 401 and 404.

Invoices submitted in this hearing show that Steve did purchase materials on Westcore’s Andrew Sheret account for work on units 401 and 404 as well as for units 301 and 302 in the Kenneth Building. [ 15 ] On January 30, 2015, Westcore issued an invoice (“Invoice No. 1736”) to Weninger for work performed under the Contract in the amount of $2,348.55 plus GST for a total balance due of $2,465.98. Invoice No. 1736 matches the earlier quoted price exactly.

Moreover, on that same day, Westcore issued a second invoice to Weninger (“Invoice No. 1759”) for the supply only of HVAC material for units 301, 302, 401 and 404 of the Kenneth Building in the amount of $2,384.29 plus GST for a total of $2,503.50. On February 6, 2015, Westcore invoiced Weninger for further material costs (“Invoice No. 1770”) in the amount of $27.65 plus GST for a total of $29.03. [ 16 ] Weninger did not pay these invoices, at least not immediately.

It is alleged in this small claims action that Weninger did eventually pay the full value of all of the invoices as part of a settlement involving a larger dispute between WIL and Weninger. Alternatively, it is submitted that Weninger is under no obligation to pay Westcore, particularly in regard to Invoice No. 1736, as it has not received any supporting documentation of the charges and cannot certify either the work or materials provided. [ 17 ] The question at this juncture is whether full payment was made as alleged. If not, it remains to be determined what, if any, monies remain due and owing to Westcore. IV.

Has Weninger already paid the debt owing under the Contract? [ 18 ] Weninger’s claim that it has already paid its debt owing on the Contract is murky at best not in the least because it is so bound up in a civil action between WIL and Westcore. That claim, BC Supreme Court Action No.

S76112, Nanaimo Registry (the “Supreme Court Action”), was originally filed by WIL on July 3, 2105, seeking damages totalling $60,470.65 arising out of Weninger’s alleged failure to pay for work and services on the Kenneth Building. [ 19 ] It bears noting that a pre-trial application by Weninger to strike this small claims proceeding on the grounds it forms at least part of the subject matter of the Supreme Court Action was denied.

The matter was raised again mid-trial, but I was satisfied, after hearing the parties, that this small claims action could proceed despite the ongoing Supreme Court Action. [ 20 ] Before filing its claim in Supreme Court, WIL filed a Claim of Lien against the title of Lands registered in the name of Guided Ventures Inc., the owner/ developer of the Kenneth Building, on April 29, 2015. By letter dated May 1, 2015, counsel for Guided Ventures issued a cheque in the amount of $10,000.00 to WIL to effect the release of Lot 13 of the Lien claim.

The letter reads, in part, as follows: This will confirm that we represent Guided Ventures Inc., the developer of “Kenneth Park” (the “Development”) located at 177 Kenneth Street, Duncan, B.C. We understand that the Builder contracted the Claimant to supply labor and materials to complete certain electrical, HVAC and plumbing works for the Development. The Claimant alleges that the sum of $70,470.65 is owed to it by the Builder.

Enclosed is our trust cheque in the amount of $10,000.00, representing the amount the Claimant agreed to accept in order to release CBL AA4364998 from the title of the Lands… We confirm that the enclosed sum is to be applied against the alleged outstanding sum owed to the Claimant, in reduction thereof… [ 21 ] Weninger, the “Builder” referred to in the letter, submits this letter reflects an understanding on the part of WIL and Weninger that the trust monies would be applied to what was owed under the Contract.

Weninger submits that this position is supported by the sworn evidence of Carey Miller at paragraph 9 of his Affidavit #1, filed in the Supreme Court Action on September 16, 2015, and a copy of Invoice No. 1759 showing a balance due as zero. [ 22 ] Paragraph 9 of Mr. Miller’s Affidavit #1 states that: There remains outstanding on the contract and extras the sum of $50,885.61. This price does not include the work performed by Westcore Services Ltd. in the amount of $4,998.51.

I have given credit of $10,000.00 paid to Westcore to cause the removal of the lien on Lot 13 such that the amount owing prior to the receipt of the $10,000.00 was $60,885.61. [ 23 ] At some undetermined time after this affidavit was sworn, Weninger received from Westcore a copy of Invoice No. 1759 showing a balance due of zero. Brant Weninger testified that upon receipt of this, he assumed that WIL had applied the monies paid to it in trust by Guided Ventures to this debt.

Brant Weninger testified he understood that the full debt owing under this small claims action was intended to be, and was, paid under what he described as the” trust agreement.” [ 24 ] Westcore does not deny that WIL received $10,000.00 in exchange for which it released a lien on Lot 13 of the Kenneth Building. That release, in turn, enabled the owner to sell the property. It is also conceded by Westcore that it issued a copy of Invoice No. 1759 indicating the balance due was zero. Mr.

Miller denies it follows from this that the balance of $2,503.00 is no longer owing (though, as I will note shortly, the balance now claimed by Westcore has been reduced to $2,031.33). [ 25 ] Rather, he testified that the zero balance was a function of Westcore’s year-end bookkeeping. In order to close out its year-end, Westcore placed the amount owing on this invoice under the “bad debt” category so that the invoice showed zero owing. He vehemently denies that WIL put any part of the $10,000.00 payment toward the amount claimed by Westcore in this small claims action.

[26] In my view, although paragraph 9 could benefit from some clarity, I regret that I cannot read into it the

interpretation pressed byMr. Weninger. I read paragraph 9 to state that before Westcore deducted the sum of $10,000.00 paid by Guided Ventures to facilitatethe lifting of the lien, it was owed $60,885.61 on the Base Building Contract. Once that money was credited, Westcore was still owed$50,885.61, the amount said to remain outstanding on that contract.

Not included in these figures was the money owed by Weninger forwork performed by Westcore in the amount of $4,998.51; the sum total of the three invoices that are the subject of this small claimsaction (again, before taking into account Westcore’s reductions made mid-trial). [27] I make this finding based on the wording of Mr. Miller’s affidavit and his evidence which I accept. Still, there was noexplanation for the difference between Mr. Miller’s figures in paragraph 9 of his Affidavit #1 and the amount actually claimed by WILin the Supreme Court Action.

This difference confuses matters but in the absence of any evidence or explanation by either party, I drawno conclusions other than, as I have said, I read paragraph 9 of Mr. Miller’s Affidavit #1 as excluding the money claimed in this smallclaims action from the Supreme Court Action. [28] I agree with counsel for Westcore that Brant Weninger’s evidence regarding the payment of the debt sought in this proceedingis weak. First, accepting that Brant Weninger thought the invoices had been paid out by virtue of paragraph 9 of Mr.

Miller’s Affidavit#1, he offered no reasonable explanation for the fact this was not raised in his counsel’s letter to Westcore dated September 22, 2015. That letter was written in response to a letter from Westcore’s counsel regarding the Contract. Even accounting for solicitor/clientprivilege, Weninger offered no reasonable explanation for failing to plead this point in its reply to this claim by Westcore. The defencewas raised, it appears, for the first time in this hearing. [29] I find that on balance, I am persuaded by Mr.

Miller’s testimony that none of the invoices at issue in this small claims actionhave been paid by Weninger. I do not accept the payment of $10,000.00 in exchange for the removal of the lien on Lot 13 was allocatedto this alleged debt, nor do I accept that it had to be, as argued by Brant Weninger. There is, I find, insufficient evidence on which Icould conclude that the monies claimed in this proceeding have been paid. [30] As I have found that the debt claimed by Westcore has not been paid out, it remains to be determined whether Weninger isobligated to pay for the work and materials invoiced. V.

Is Weninger in Breach of the Contract by Failing to Pay Westcore (

i) Invoice No. 1736 [31] Westcore brought this claim for monies owing on three outstanding invoices. Its first bill, Invoice No. 1736, is for materials,labour and travel in the amount of $2,348.55 plus GST. [32] In the midst of this trial, Mr. Miller filed a further Affidavit dated October 19, 2017, (his Affidavit #2 although there is noAffidavit #1 in this proceeding). In that Affidavit, Mr. Miller gave sworn evidence clarifying that this and Westcore’s other two invoiceshad been incorrectly calculated.

Westcore now seeks from Weninger the sum of $2,261.63 on Invoice No. 1736. [33] Invoice No. 1736 as it was first issued is, as I have noted, identical in every respect to the quote earlier rejected by Weninger asbeing too costly. Without doubt, Invoice No. 1736 is governed by the terms of the Contract.

As such, it must be determined whetherWeninger is obligated to pay this Invoice in full or whether, as submitted, there is no obligation to pay unless and until Weninger certifiesthe work performed. [34] Weninger’s fundamental objection to this Invoice is that Westcore has not sufficiently documented the cost either of itsmaterials, labour or travel to enable Weninger to certify the work. In reply, Westcore argues that the true intent of the Contract is tofacilitate the exchange of goods and services from Westcore to Weninger.

That exchange having occurred, and the labour and materialsaccepted, Weninger should not be able to avoid paying “on the basis of a single clause in a poorly drafted Contract.” A Contract that, asWeninger points out, was prepared and presented to him by Westcore. [35] Although represented in this proceeding by one of its principals, Mr. Brant Weninger, a non-lawyer, Weninger relies on thelegal doctrine of contra preferentum. That rule is well described in McClelland & Stewart Ltd. v.

Mutual Life Ass'ce Co. of Canada(1981), (SCC), 125 D.L.R. (3d) 257 (S.C.C.) at paragraph 657, by Estey J. who wrote that the doctrine is a principle ofinterpretation that: …applies to contracts and other documents on the simple theory that any ambiguity in a term of a contract must be resolved against theauthor if the choice is between him and the other party to the contract who did not participate in the drafting. [36] Weninger submits that any ambiguity in the terms of the Contract in regard to the question of “certification” ought to beinterpreted in his favour. However, in Mendelson v.

Work Wear Corp of Canada,

(1993) O.J. No. 367 at paragraph 56, Wilson J. heldthat even in the face of an ambiguity, this rule of

interpretation has no application where there is only one reasonable

interpretation of theintention of the parties. [37] The term of the Contract requiring certification by Weninger before payment seems unusual; certainly no precedent interpretingits general meaning was provided in this hearing. Westcore submits that it has now deleted this term from its contracts. Still, the termrequiring Weninger to pay Westcore on account of the work performed as certified by Weninger must be given some meaning.

Weninger submits that, at a minimum, it must be interpreted to mean that it is entitled to sufficient information regarding the workinvoiced and materials provided to satisfy itself that it is obligated to pay. [38] There is, in every commercial contract, an implied term that the parties will conduct themselves in a reasonable and business-like manner. Weninger cannot, for example, simply avoid certification by demanding ever more unreasonable information on which tocertify. At the same time, I do not accept the argument that Weninger never raised any concerns regarding the information missing inthe invoices.

Brant Weninger testified, and I accept, that he both questioned and refused to pay Invoice No. 1736 immediately uponreceipt as he simply could not accept the work was done.

[ 39 ] There is, I find, something to Weninger’s argument that Westcore’s Invoice No. 1736 makes little sense and reflects, at a minimum, terrible record keeping on the part of Westcore, at least in this instance. [ 40 ] As Weninger points out, it is indeed notable that Westcore invoiced him for work done on the two units in exactly the amount of the quote that had been rejected earlier. As an example, Westcore quoted labour in the amount of 21 hours. It subsequently invoiced Weninger for labour in the amount of 21 hours.

Its supporting documents show its employee, Aaron Hawkins, billed, variously, seven or eight hours a day on January 6, 7, 8, 9, 12 and 13, 2015, to Purchase Order (PO) No. 196-4. Mr. Wilson testified that he concluded that Mr. Hawkins wrongly billed Job #196-4 in the amount of 21 hours in which he actually worked on Job #195-4 (the Contract work). [ 41 ] I agree with Brant Weninger that it is nearly impossible, looking at the time sheet setting out Mr. Hawkins’ hours, to determine exactly when Mr. Hawkins performed work under the Contract, Mr. Wilson’s hearsay evidence notwithstanding.

Brant Weninger testified also that given the time his own employee worked in the units, it is unimaginable that Mr. Hawkins could have spent 21 hours working in the units as well. Mr. Weninger was initially satisfied that Mr. Hawkins would have worked for four hours on January 13, 2015, but no more. Ultimately, he conceded that Mr. Hawkins and Westcore could have provided as much as 10 hours of work on the units. [ 42 ] Mr. Wilson testified he was certain that Mr. Hawkins worked in the two units in December 2014 when so much of the materials for the units were purchased even before the Contract was signed. Mr.

Wilson explained that he did not bother to bill Weninger for that work because he had no work sheets crediting Mr. Hawkins with work on the Contract in December. Mr. Wilson did not have any work sheets to credit Mr. Hawkins with work on the Contract in January 2015 either but still credited him with 21 hours of work on Job # 195- 4 (the Contract work). [ 43 ] Although Mr. Wilson was sure that work was done on the Contract in December, he admitted that his testimony in that regard was contrary to his own witness statement. Moreover, Mr.

Wilson testified that work was done on the Base Building Contract by December 2014. Mr. Miller swore in his Affidavit #1 at paragraph 21 that Westcore was winding down its work on the base building in March 2015. [ 44 ] In addition, as Mr. Weninger points out, the labour actually credited to Mr. Hawkins matches the labour quoted by Westcore in December 2014 exactly.

If there was additional labour in December, it would follow that Westcore performed more labour on the project than its estimate, even though it knew that Weninger did not want to go with the quote because it was too high. [ 45 ] The documents supporting the materials charged in Invoice No. 1736 are similarly controversial. I agree with Mr. Weninger’s observation, firstly, that the numbers provided in the supporting documents do not even equal the amount charged. What is worse, the first document attached in support of Invoice No. 1736 is a bill from Sinclair Supply Ltd. in the amount of $71.32. As Mr.

Wilson agreed in his testimony, this invoice has nothing to do with the Contract; rather, as Mr. Weninger feared, it was material used for the Base Building Contract mixed in with charges for materials on the Contract. [ 46 ] In cross-examination, Mr. Weninger made a persuasive case that Westcore purchased far too many materials for the two units. He questioned why Westcore would be purchasing materials for the Contract on December 22, 24 and 29, 2014, when Weninger had yet to sign the Contract. [ 47 ] Even accepting Mr.

Wilson’s explanation that he was acting under their verbal agreement, the materials are on their face excessive. Mr. Wilson’s only explanation for that fact was that Westcore left all the unused materials on the site for Weninger to use. Still, he agreed that he knew Weninger did not want to be charged for materials not used. As Mr. Weninger testified, the deal was that any materials that were not used were supposed to be returned for a credit. Mr.

Wilson was unable to find any receipts for materials returned. [ 48 ] Weninger was charged for materials from Westcore’s own shop, a common practice, in the amount of $188.23. As Mr. Weninger testified, there is simply no proof these materials were used in either unit 401 or 404.

It may well be that some or all of these materials were used in the performance of the Contract, but there is simply no documentation and no way in which the work can be “certified.” [ 49 ] I accept, given the context in which the Contract was entered into, that the parties intended not only that the work be performed and materials be provided, but that Weninger would be able to clearly determine what work was provided on which unit and to satisfy itself the work was done only on those units and not on the Base Building Contract. This was important, I find, for several reasons.

First, Weninger was not paying for labour on the Base Building Contract; on that contract the labour was included in the contract price. Weninger did not want to end up paying for that labour indirectly by paying for labour under the Contract which was, in fact, attributable to the Base Building Contract.

Secondly, the material necessary for work on both the Base Building Contract and the Contract were not dissimilar: it was all the more imperative that Weninger be able to ascertain for itself that there was no cross- contamination. [ 50 ] I do not disagree with counsel for Westcore that, ultimately, this is a contract for work and materials and that work and materials was provided. Weninger has never, for the purposes of this litigation at least, taken issue with the quality of the work provided by Westcore in the two units, whatever that work was.

In fairness, Weninger should pay but the question remains, what is owed? [ 51 ] Before turning to that question, I find, firstly, that Weninger is not in breach of the Contract for having failed to pay Invoice No. 1736. I agree with Mr. Weninger that the Invoice and its supporting materials are not sufficiently clear such that he should reasonably be able to certify the work. At the same time, Mr. Weninger concedes that even without supporting documents, some labour was performed and materials used in the units.

This is not, I find, a concession amounting to an admission of breach; rather, it is the product of guesswork on the part of Mr. Weninger. [ 52 ] In his testimony, Brant Weninger repeatedly referred to five Andrew Sheret invoices that could be certified. He was, he testified, satisfied that of the invoices, $470.52 of the materials could be certified as having been used in the units. With a 20% mark-up, Weninger would owe Westcore $564.62. It was, however, never clear whether those Andrew Sheret invoices were attached to Invoice

No. 1736 or 1759 and 1770. I suspect it is the latter in which case they will be payable for the reasons to follow. [ 53 ] Mr. Weninger also testified that he could agree that Mr. Hawkins worked up to 10 hours on the Contract, including 4 hours on January 13, 2015. As such, I find Weninger must pay Westcore the sum of $570.00; that is for 10 hours of labour pursuant to the Contract at the rate of $47.50 per hour plus 20 percent. For the remainder of the costs invoiced under Invoice No. 1736, I find they are not due and owing as I agree with Mr.

Weninger that it is not possible to certify the work or materials charged as having been provided pursuant to the Contract. (ii) Invoice No. 1759 and No. 1770 [ 54 ] While Weninger obliquely included Invoices No. 1759 and 1770 in its submission in regard to Invoice No. 1736, I find the former two are quite separate from the latter invoice. For the most part, Weninger’s argument in regard to these first two invoices, at least where charges involved materials used in units 301 and 302, is that these were paid in the settlement discussed above.

In regard to charges for materials used in units 401 and 404, the submission was, effectively, that those, too, would not be payable until Weninger received sufficient information on which to certify the work. [ 55 ] Unlike the case with Invoice No. 1736, materials purchased under Invoices No. 1759 and 1770 were not purchased pursuant to the terms of the Contract. Rather, the agreement allowing Weninger’s employee, Steve, to bill Westcore’s Andrew Sheret account was a verbal agreement entered into after the Contract.

It does not form part of the Contract, nor does it constitute any sort of addendum to the Contract. [ 56 ] From this it follows that Weninger cannot avoid paying these invoices on the grounds that there is insufficient supporting documentation even though some of the materials and work related to units 401 and 404. [ 57 ] I find Weninger is liable to pay these invoices based on his verbal agreement to do so. The purchaser of the materials charged in these invoices was an employee of Weninger.

It cannot be the responsibility of Westcore to document those purchases any more than it has done for this small claims action. I am satisfied that, based on the invoices and the supporting materials filed in this claim, the invoices reflect purchases made on Westcore’s Andrew Sheret account by an employee of Weninger; I am satisfied Westcore was billed for these materials, and I find these bills must be paid by Weninger. [ 58 ] As with Invoice No. 1736, the amounts originally claimed by Westcore in these two invoices has changed.

In regard to Invoice No. 1759, Westcore originally claimed payment in the amount of $2,503.50. It now seeks payment on this invoice in the amount of $2,031.03. Similarly, Westcore has reduced Invoice No. 1770 by $5.72 so that it now seeks payment on that invoice in the amount of $23.31. [ 59 ] Payment on all of the invoices will attract court ordered interest from September 15, 2015. VI.

Legal Fees [ 60 ] The Contract provides that in the event of a default of full payment under the agreed terms, Westcore will charge Weninger for any costs associated with collections, including all legal fees. [ 61 ] In this small claims action, Westcore claims its legal fees as a collection cost pursuant to the Contract. [ 62 ] As I have found that Weninger is not in breach of the Contract, it follows that there is no basis for an order granting Westcore its legal fees in relation to its claim for payment on Invoice No. 1736. I have also found that Invoices No. 1759 and 1770 did not form part of the Contract.

They are payable by Weninger but there is no contractual obligation on the part of Weninger to pay legal fees accrued in the course of collecting those monies. [ 63 ] It follows that the claimant’s costs for pursuing this debt would typically be assessed in the usual manner under the Small Claims Rules . However, as I have found that the parties’ success was divided, I order that each party shall bear its own costs. VII. Conclusion [ 64 ] In

summary, I have ordered that Weninger is liable to pay to Westcore the following: i) $570.00 on Invoice No. 1736; ii) $2,503.50 on Invoice No. 1759; iii) $23.31 on Invoice No. 1770; and iv) Court ordered interest from September 15, 2015. [ 65 ] If the parties are unable to agree on time to pay, they may set the matter down for a payment hearing before any Judge of this Court. L. Mrozinski Provincial Court Judge