Steve Bell - v. -, 2016 SKPC 061

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2016 SKPC 061 Date: April 27, 2016 File: SC 410/15 Location: Regina _____________________________________________________________________________ Between: Steve Bell - and - Century 21 Dome Realty Inc. Niel Halford For the Plaintiff Neil Tulloch and Tyler Fulkerth For the Defendant JUDGMENT P. DEMONG, J Introduction [ 1 ] The plaintiff seeks to recover a sum of money which he says is due and owing to him.

Some of these monies relate to the recovery of certain fees allegedly overcharged to the plaintiff while he was working with the defendant, and some of these monies relate to a prize which the plaintiff says he won in an office pool. [ 2 ] The defendant denies that it overcharged the plaintiff and says that the fees referred to by the plaintiff are charges that were incurred by the plaintiff when he failed and/or refused to remove his personal belongings from an office that he had been renting from the defendant.

The defendant further denies that the plaintiff ‘won’ an office pool, and says that under the terms and conditions of the office pool in question, the plaintiff could only win if he was a ‘working agent’ at the time of the draw. The defendant says that because the plaintiff terminated his relationship with the

defendant prior to the draw he was ineligible to receive the prize in question. The defendant also brings a counterclaim for certain monies due and owing to it. [ 3 ] Prior to commencement of the trial, counsel for the plaintiff indicated that he was withdrawing all of the claims set forth in his pleadings with the exception of his claim for the prize that he alleges he won in an office pool. The defendant in turn has also withdrawn its counterclaim. Facts [ 4 ] The facts in this matter are, for the most part, non-contentious.

Where the evidence between the parties are in dispute, I prefer the evidence given by the defendant for the reasons stated. [ 5 ] Steve Bell was employed by the defendant as a real estate agent in or about 2011. He worked for that company until December 31, 2014. The evidence at trial, which includes e-mail between the parties and a letter of resignation executed by Mr. Bell is conclusive of Mr.

Bell’s decision to cease working for the defendant on the above-noted date. [ 6 ] In or about the latter part of 2013, a group of real estate agents employed by the defendant, which constituted an ‘advertising committee’ developed an “Air Miles Promotion Contest”. The purpose of the promotion was to provide an incentive to potential and existing clients of the defendant, and also provide a work incentive to the agents and staff of Century 21 Dome Realty Inc. The promotion was composed of two parts.

One part dealt with the clientele of the defendant and one part dealt with the defendant’s agents and staff. [ 7 ] The terms and conditions of the promotion were set up by those real estate agents which were on the advertising committee. Those terms and conditions were later approved by the defendant itself. The terms and conditions were prepared and circulated throughout the office and also listed on the defendant’s commercial website.

The promotion commenced February 1 of 2014 and concluded December 31 of 2014. [ 8 ] The first part of the promotion, which I will call the ‘public promotion’, established a form of lottery. In order to enter the promotion, a member of the public had only to be represented in the purchase or sale of real estate by a Century 21 Dome Realty Inc. agent. If so, the client’s name would be entered into a draw. The winner of the draw would be selected at the Century 21 Dome Realty Inc. beginning of the year kick-off meeting which occurred on January 5 of 2015.

The winner would receive a prize of 21,000 Air Miles which has a monetary value of $6,930.00. The prize was financed directly by the agents. For every transaction that any given agent completed, that agent would pay $21.00 into the prize fund. [ 9 ] The second part of the promotion was private, or internal to the defendant’s business. Participation was limited to the defendant’s staff and agents.

Staff and agents could enter the promotion any number of times, but entry would be dependent on participating in the Easter Seals campaign, selling tickets to the defendant’s golf tournament or casino night, or closing real estate transactions or obtaining real estate referrals. This promotion was set up in similar fashion to the public promotion in the sense that a winner’s name would be drawn at the defendants’ kick off meeting on January 5, 2015, and the prize would also be 21,000 Air Miles. [ 10 ] According to the defendant, Mr. Bell was a rather engaged employee.

He sat on the advertising committee, and he assisted in the golf tournament, casino night and Easter seals campaigns. He closed a number of transactions and as a result his name would have been entered into the draw on numerous occasions throughout 2014. [ 11 ] On January 5 of 2015 Mr. Bell’s name was drawn as the winner of the private promotion. As such, he should have, but did not win the 21,000.00 Air Miles. There was a reason for this.

The terms and conditions of the private promotion clearly and unequivocally indicated that the ‘winner must be a working agent, staff, manager, [or] owner at the time of the draw’. The defendant says that the reason this provision was included was so that employees and agents would be motivated to advance the interests of the defendant and remain in its employ. It would be no incentive whatsoever to let an employee who had left the defendant win the prize.

[12] Because Mr. Bell had voluntarily terminated his employment with the defendant on December 31 of 2014, he was ineligible to receive the prize and another name was drawn to be the winner. [13] Mr. Bell says he should be entitled to the prize. He argues that notwithstanding that he was on the advertising committee, andnotwithstanding that he actively participated in the promotion and was aware of it, he did not read the terms and conditions of thepromotion, nor was the exclusionary term ever specifically brought to his attention.

He maintains that if it had, he would not haveresigned his position with the company on the date that he did. He would have waited until after the draw, and he would, therefore havebeen entitled to the prize. As a result, he urges this court to rule that the exclusionary clause set out under the terms and conditions isunenforceable. [14] For the reasons that follow, I am unwilling to do so. [15] Firstly, I had the opportunity to observe Mr. Bell’s demeanour and listen to his answers. I find it very hard to believe that Mr.Bell was not aware that rules existed in relation to the Promotion. Mr.

Bell strikes me as a reasonable business man. How can he beheard to say that although he was on the advertising committee, and notwithstanding that he knowingly participated in both promotions,that he did not know that there were rules surrounding the promotions, or that the rules were disclosed and freely available? Thedefendant testified that they were promulgated throughout the office and posted not only in the office but on the defendant’s commercialwebsite. I believe the defendant. From an objective viewpoint, what the defendant says happened makes common sense.

The defendant’sowner was not seriously challenged on this point in cross-examination. [16] If, however, Mr. Bell did not know that there were rules, I am satisfied that, objectively viewed, he should have known of theirexistence and taken at least some steps to familiarize himself with them. [17] Mr. Bell’s counsel invites me to conclude that Mr.

Bell either had no such obligation, or that I should be guided by the case lawwhich deals with non-enforcement of exclusionary terms of a contract where, as he suggests in the present case, the exclusion is notbrought expressly to the attention of a contracting party. [18] I am not prepared to do so, but I am satisfied that there is a contractual relationship between the parties. In Thierman v WesternCanada Lottery Corp., (SKQB), at page 6 Mr. Justice MacLean accepted as a general principle of law the followingstatement: “The general rule of the law of contracts that where an offer or promise for

an act is made, the only acceptance of the offer that isnecessary is the performance of the act, applies to prize winning contests. The promoter of such a contest, by making public theconditions and rules of the contest makes an offer, and if before the offer is withdrawn another person acts upon it, the promoter isbound to perform his promise.” [19] But while a contract exists, it is not every exclusionary term within a contract that will be excluded simply because that term wasnot expressly drawn to a contractee’s attention.

In Karroll v Silver Starr Mountain Resorts Ltd. (1988), (BC SC), 33BCLR (2d) 160, McLachlin C.J.S.C. (as she then was) noted that many factors may be relevant in determining whether or not there is aduty to specifically advise of an exclusion clause. She noted that the length and format of the contract and the time available for readingit and understanding it are considerations. She stated that there is no exhaustive list which may be referred to.

I certainly agree. [20] Simply because a person makes no effort whatsoever to read an agreement, which is, as in the instant circumstances, clearlyavailable to him, simple, relatively short and non-technical is no reason to impart, onto a promoter of a draw such as this, an obligation tospecifically draw to Mr. Bell’s attention (and presumably all participants) the single, simple and reasonable exclusion that existed. Mr.Bell is a businessman. He presents as articulate.

He does not, to the knowledge of the court, suffer from any mental infirmity that mightpreclude him from taking it upon himself to inquire about the very rules that are established for a promotion that he was activelyparticipating in. He has given no reason whatsoever as to why he did not make inquiries or familiarize himself with either the existenceof, or the details of, the terms and conditions of this promotion. He had the better part of a year to make inquiries. I have no doubt that hewould have understood its contents, had he read it. His sole argument is that no one brought it to his specific attention.

An argument that

is predicated on the simple premise that a party should not be bound by a provision in a contract that he chooses not to obtain, or read, is not, in the absence of any other good and substantial reason, particularly compelling. [ 21 ] On the particular facts of this case, there is no reason why this court should find that Mr. Bell was not bound by what I consider to be the clear and unequivocal single exclusionary term of the promotion. [ 22 ] The plaintiff’s claim is dismissed. As the defendant does not seek costs, none are awarded. P. Demong, J