Babich v. Babich Date:, 2015 BCPC 175

Citation: Babich v. Babich Date: 20150622 2015 BCPC 0175 File Nos: 20760, 21144, 21149 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (SMALL CLAIMS COURT) BETWEEN: ERIC BABICH CLAIMANT AND: EARL BABICH DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Claimant: L. Armisted (on March 27, 2014 only) Appearing in person: Eric Babich Appearing in person: Earl Babich

Place of Hearing: Abbotsford , B.C. Dates of Hearing: March 27, May 16, 22, September 12, 2014, January 27, 2015 Date of Judgment: June 22, 2015 Index Paragraphs Page Introduction [ 1 ] to [11] 1 Applicable Law: [12] to [13] 6 1. Burden of Proof [14] 6 2. The Elements of a Contract [15] to [21] 6 3. Requirements for a Valid Promissory Note [22] to [24] 9 4. Requirements for a Guarantee [25] to [28] 10 5. The Limitation Act [29] to [33] 12 6. Multiple Claims Over $25,000 [34] to [39] 13 Court File 20760 15 1. The Claim [40] to [86] 15 2. The Counterclaims [87] 29 (

a) Brokerage Fees [88] to [93] 30 (

b) Consultation Fees for Legal Advice [94] 31 (

c) Consultation Fees for Kiwi Farm [95] to [104] 31 (

d) and (

e) Renovations [105] to [117] 34 (

f) Share of Profits from Sale of Bradner Road [118] to [121] 38 (

g) Loss of Tools [122] 40 (

h) Compensation for Wills [123] to [126] 40 (

i) Consultation Fees for Whidbey Island Property [127] to [130] 41 (

j) Claim for Rent [131] to [134] 42 Claim 21144 [135] to [146] 43 Claim 21149 46 1. The Claim [147] to [155] 46 2. The Counterclaim [156] to [161] 49 Costs [162] 50

Summary and Order [163] to [165] 51 Introduction [1] The Claimant Eric Babich and the Defendant Earl Babich are brothers whose relationship has become very strained. On the surface, their conflict is about money. There is considerable animosity between them, which was on display throughout this trial. What ought to have been a series of relatively simple issues was complicated because of the animosity and hostility between the parties.

Most, if not all of these claims, arose a number of years ago, making it difficult for many witnesses to recall precisely what took place, especially those witnesses who have no stake in the conflict. Many conflicting “agreements” are alleged, and in most cases one party alleges the existence of an agreement, while the other party denies it. The lack of supporting documentation has made figuring out what happened much like a Rubik’s Cube puzzle. [ 2 ] Three separate small claims actions have been consolidated into one trial.

In court file 20760, the Claimant seeks to recover from the Defendant over $25,000 which was money disbursed from the Claimant to the Defendant. The Claimant alleges that he loaned the Defendant in excess of $30,000 in order that the Defendant could purchase and maintain property located on Sylvester Road in Mission, B.C. The Claimant says that the loan was facilitated by him creating a line of credit from which funds were drawn on behalf of the Defendant. The Claimant states that the Defendant made payments on the line of credit until September of 2011.

The Claimant states that the Defendant has acknowledged his responsibility for the sum borrowed on the line of credit firstly by signing a document called a “Promissory Note” in which the Defendant guaranteed payment of the line of credit, and secondly by an ongoing pattern of making payments pursuant to the agreement. [ 3 ] The Defendant denies any liability for the Claim alleged in file 20760. He states that any dealings he had with the Claimant in connection with the purchase of the Sylvester Road property were done as agent for the parties’ parents, Ernest and Betty Babich.

He states that at no time did he ever agree to become personally liable for his parents’ debt to the Claimant.

[ 4 ] In file 20760, the Defendant has filed a counterclaim in which he claims against the Claimant for ten items which exceed the amount of the Claim. Many of these are of questionable merit (e.g. a claim for “brokerage fees” when the Defendant is not a mortgage broker, claims for “consultation fees” that are unsupported by any written agreements).

Some of these were dismissed prior to trial. [ 5 ] In court file 21144, the Claimant sues for a number of further debts which he alleges are owing to him by the Defendant, including what the Claimants says are loans appearing to be rent payments on a lease that was not implemented, and payment for tools that the Claimant sold to the Defendant, but which he was not paid for. The Defendant says that he was owed the lease payments pursuant to a valid written tenancy agreement and they were not loans as the Claimant states.

He says that the tools were either sold or gifted to his father, or were owned by his father. [ 6 ] In court file 21149, the Claimant sues the Defendant for loans made to the Defendant “at various times, in various amounts, for various purposes”. The Defendant states that this is a duplication of the claim made in court file 20760. He also counterclaims for loans that he says he made to the Claimant. [ 7 ] Over the course of five full days of trial, eleven witnesses gave evidence, including the Claimant and Defendant. It became apparent that the trial was going to vastly exceed the time allotted to it.

This was in large measure due to the animosity between the parties, which became embarrassing for the parties at times. At one of the trial’s lowest points, the Claimant resorted to calling his mother a liar. It was also apparent that the Defendant was intent on slowing down the proceedings as much as possible. On the fifth day of the trial, it became clear that the trial would continue indefinitely if left unchecked. While litigants are entitled to their day in court, they are not entitled to their year in court.

At a time when children who are in care are waiting an average of 10 to 12 months (according to statistics posted on this court’s website) to have their child protection hearings held, it is inexcusable for court time to be squandered in civil claims where the issue is money. [ 8 ] By the fifth day of trial, both of the parties had testified and been cross-examined.

Pursuant to the power granted under section 2 (2) of the Small Claims Act , an order was made directing the parties to file any further evidence they wished presented in the form of affidavits, and that each party would be given until March 2, 2015 to file written submissions. Following receipt of the other party’s submissions, the parties were given a further period of 14 days to file replies to the material they received from the other side. It was alleged that the material had not been exchanged in a timely fashion.

While there is no way to determine if this is the case, short of surveillance of the parties, the time limits were relaxed so that each side had a chance to file their material. [ 9 ] In his submissions, the Defendant protested not being allowed to take up further court time. He is of the view that he should have been given as much time as he wished to call as many witnesses as he wanted in order to present his case. The fact is that the matter used up more court resources than it ought to. It was originally estimated to be a three day trial that quickly grew to five.

Left without restraint, the trial may have taken weeks of court time to conclude. While both of the parties bear some responsibility for this, the Defendant seemed especially intent on running out the clock. While he did save some time by asking to present his evidence-in-chief in affidavit form (something the Claimant objected to), the Defendant took inordinately long in cross-examination of witnesses, with long pauses between questions and embarkation on questioning of irrelevant areas. When he was cross-examined, he gave long, unresponsive answers.

The Defendant’s conduct leads me to believe that he had no interest in having this matter proceed expeditiously. The Claimant is not without some responsibility in this regard as well. At times he had difficulty in restraining his contempt for the other members of his family. The animosity between these parties is intense and the court proceedings were used to further the family feud.

Ultimately I decided that it was unfair to those waiting in the cue for court time and to the taxpayer in general for the matter to proceed on an unlimited basis. [ 10 ] The Defendant has stated in his written submissions that the abridgement of time is something that he may ask the Supreme Court to review. It may be that an appellate court will agree with him and find that it is a better use of the resources of this court to be spent in the manner proposed by the Defendant while child protection matters wait even longer to come to trial, and if so, I will be very interested in the reasoning.

Until then, I believe that this case illustrates the need for revisions to the rules that make parties more accountable when they are intent on dragging out proceedings. [ 11 ] Following is a

summary of the relevant law applicable to the issues raised at this hearing, a

summary of the evidence heard and the reasons for the order that is being made in this case. Applicable Law [ 12 ] The claims raised and the defences advanced raise a number of legal issues. These include such questions as:

(1) Who bears the burden of proof in a civil case?

(2) What are the requirements for a valid contract?

(3) What is required for a valid promissory note?

(4) What is required for a valid guarantee?

(5) Are any of the claims or counter-claims raised barred under the Limitation Act ?

(6) Can the Claimant circumvent the limit of $25,000 for claims under the Small Claims Act by bringing multiple claims? [ 13 ] Following is a

summary of the relevant law to be applied to these questions. 1. Burden of Proof

[14] The burden of proof in a civil case rests with the Claimant to prove his case on a balance of probabilities, and on the Defendantto prove the case for his counterclaims on a balance of probabilities. As the Supreme Court of Canada stated in F. H. V. McDougall 2008SCC 53; [2008] 3 S.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.” 2.

The Elements of a Contract [15] In this case, both parties have alleged the existence of various contracts with one another, and in most if not all cases, the otherside has disputed that such a contract ever existed. It is important to have an understanding of what exactly a contract is. Just because oneparty believes, in his own mind, that the parties made a contract, that belief alone does not make it so. [16] In order for the existence of a valid contract between the parties, the following must be present: 1.

The intention to create legal relations: there are times where, although the discussions between two parties may otherwise meet therequirements of a contract, they do not intent to create legal relationship. This often occurs in discussions between family members suchas parents and children. (This will be addressed in greater detail below). 2. An offer containing the essential terms of the contract: An offer is an expression of willingness to contract, made with the intentionthat it will bind the person making it as soon as it is accepted by the person to whom it is addressed.

An offer is not the same thing asnegotiations, or an agreement to agree in future. 3. An acceptance of the offer and its terms: Acceptance is final and unqualified assent to the terms of an offer 4. Consideration (i.e. something given by each party to the contract): A contract consists of an exchange of promises, acts, or acts andpromises, as a result of which each side receives something from the other. 5.

Certainty of the agreed terms: Before a binding contract can exist, the parties must agree on all essential terms and expressthemselves so that their meaning can be determined with a reasonable degree of certainty. [17] Often one party will allege that the parties entered into a “verbal contract”, meaning that there is no written record of what it isthe parties agreed upon. These types of agreements can be very difficult to prove if denied by the other party.

Unless there is someindependent support in the evidence that such a contract was made, a verbal contract is very difficult to establish. [18] In certain cases, “verbal contracts” are unenforceable.

For example, section 59(3) of the Law and Equity Act of BritishColumbia makes a contract respecting land unenforceable unless it is made in writing signed by or on behalf of the party to be charged orunless there has been some other clear act or acquiescence which essentially confirms the contract or a substantial change of position onthe part of the person alleging the contract has taken place which would make it inequitable unless the contract is enforced. (Thispresumes that the existence of the contract has been proven in the first place.) [19] In cases where there is a written contact, one party may assert that the written contract does not contain all of the terms that theparties agreed upon and that there as an oral agreement, collateral to the written one, which contained different terms.

In such cases, as ageneral rule, the oral collateral agreement is not valid or enforceable if it inconsistent with the written agreement. This is sometimescalled the “Parol Evidence Rule”. This principle has been set out by the Supreme Canada: Hawrish v. Bank of Montreal (SCC), [1969] S.C.R. 515; and Bauer v. Bank of Montreal (SCC), [1980] 2 S.C.R. 102. [20] Where money is transferred between family members, such as in the case of a transfer between spouses or a transfer from aparent to a child who is a minor it is presumed that the money is transferred as a gift.

This presumption does not apply in the case offamily transfers where both are adults. In those cases, the law presumes that the adult recipient is obliged to repay the money to the otherfamily member. These are simply presumptions, and they can be rebutted by proof to the contrary. The burden of proof rests with theparty seeking to rebut the presumption, on a balance of probabilities. (See Proznik and Smith v. Proznik, 2011 BCPC 300). [21] Here the Defendant has not alleged that he was given money from the Claimant as a gift. 3.

Requirements for a Valid Promissory Note [22] The definition of a promissory note is set out in section 176(1) of the Bills of Exchange Act (Canada) as follows: 176.

(1) A promissory note is an unconditional promise in writing made by one person to another person, signed by the maker, engagingto pay, on demand or at a fixed or determinable future time, a sum certain in money to, or to the order of, a specified person or to bearer. [23] For an instrument to be a promissory note, the following conditions must be present: 1. It must be made in writing. 2. The promise must be an unconditional one. 3. It must be signed by the person making the promise (known as the maker).

4. In the note, the maker must promise to pay a specified sum of money. 5. The note must provide that the payment is to be made either on demand, or at some fixed or determinable time in future. 6. The note must specify that the sum is to be paid either to a specified person or to the bearer of the note. [24] Simply calling a document a promissory note, or putting the words “Promissory Note” at the top of a document does not makethe document a promissory note, any more than writing the words “twenty dollar bill” on a blank sheet of paper makes that paper worthtwenty dollars.

If the document does not meet the legal requirements for a promissory note, then the document is not a promissory note.In this case, the document that the Claimant has referred to as a promissory note is not in fact a promissory note for a number of reasons.Most glaring is that the document does not specify a certain amount of money that the maker is responsible for. It also does not statewhen the note is due or who the maker is supposed to pay. 4. Requirements for a Guarantee [25] The document which the Claimant calls a promissory note does not meet the legal requirements for such an instrument.

Thisdoes not mean that the document is meaningless. It may constitute a guarantee, provided that it meets all of the requirements of acontract, and otherwise meets the definition of a guarantee. A useful definition of a guarantee is found in Western Dominion Inv. Co. v.MacMillan (MB KB), [1925] 2 D.L.R. 442 (Man. K. B.): 6 Reduced to its simplest terms a guaranty is a promise of one man to pay the debt of another if that other defaults. In every case ofguaranty there are at least two obligations, a primary and a secondary.

The secondary--the guaranty--is based upon the primary, and isenforceable only if the primary defaults. It is so completely dependent upon the unchanged continuance of that primary, that if any, eventhe slightest, unauthorized changes are made in the primary, as e.g., by extension of time for payment, or by reducing the chances ofenforcing payment, as, e.g., by releasing any part of the securities,--the secondary thereby falls to the ground. In other words, thesecondary is not only collateral to, but is exactly co-extensive with, the primary, as the primary existed when the secondary came intoexistence.

Lastly, if the secondary obligor pays the debts he is entitled, as of right, to step into the creditor's shoes. [26] In The Law of Guarantee, Second Edition, 1996, Carswell, the authors write at page 107, paragraph 4.2: The requisites of a binding guarantee are essentially the same as the requisites for any legally binding contract.

Briefly stated, in order fora guarantee obligation to come into existence, it is necessary for there to have been an offer and acceptance, sufficient certainty of termsfor the courts to be able to determine the nature and scope of the obligation that has been assumed, valid consideration to support thecontract, a voluntary assumption of the obligations by the parties to the agreement accompanied by an intention to enter into a legallybinding agreement and compliance with the formal requirements that arise under the Statute of Frauds.

Once these requirements havebeen satisfied, then any guarantee, like any other contract entered into between mentally competent persons of full age, will beenforceable by the parties to it, irrespective of its subject matter, provided it is neither illegal, immoral nor contrary to public policy.` [27] In British Columbia, the requirements for a guarantee which formerly been contained in the Statute of Frauds are now containedin section 59(6) of the Law and Equity Act. That

section reads as follows:

(6) A guarantee or indemnity is not enforceable unless (

a) it is evidenced by writing signed by, or by the agent of, the guarantor or indemnitor, or (

b) the alleged guarantor or indemnitor has done

an act indicating that a guarantee or indemnity consistent with that alleged hasbeen made. [28] To summarize, for a valid guarantee to exist in this case, it must be proven that: 1. The alleged guarantor agreed to pay the debt of another person or persons. 2. The other person defaulted on the debt. 3. No change was made to the terms of the debt owed unless those changes are authorized by the alleged guarantor. 4. Offer and acceptance are both present. 5. The terms are sufficiently certain such that a court interpreting the document can understand precisely what was being agreed to. 6.

There is valid consideration to support the contract. 7. The agreement is voluntary. 8. The agreement is in writing or is otherwise acknowledged by the guarantor as described in section 59 (6) (

b) of the Law and EquityAct.

5. The Limitation Act [ 29 ] In court file 20760, the Notice of Claim alleges that the claim is based on a line of credit created in 2001 and that the Defendant made payments on that line of credit until September of 2011. The Claim was filed on December 2, 2011. The Counter-claim alleges various debts which were created between 2005 and 2010. [ 30 ] Court file 21144 alleges that money was loaned to the Defendant by the Claimant. It also alleges that the Claimant sold various items to the Defendant, but has not been paid for them. All of this is alleged to have taken place between May 31 and July 16 of 2010.

This Claim was filed on October 15, 2012. [ 31 ] Court file 21149 is a claim for “various amounts, for various purposes” loaned to the Defendant by the Claimant for which the Claimant has not been paid. On page two of the claim, the Claimant itemizes the dates of these debts and their dates span from May of 2004 to September of 2005. The Claim was filed on October 18, 2012. The Claimant alleges that the Defendant has made payments on the loans until October of 2011. [ 32 ] On June 1, 2013, after all of these claims were filed, a new Limitation Act came into force in British Columbia.

That Act had a general rule in

section 6, subject to a number of exceptions, that “a court proceeding in respect of a claim must not be commenced more than 2 years after the day on which the claim is discovered.” Under the new Act however, pre-existing claims (defined as claims which came into existence before June 1, 2013) are governed by the limitation period which was in force at the time that the pre-existing claim was discovered. In this case, this means that the limitation period which applies to all of these claims is that set out in

section 3 of the former Act, in this case six years. [ 33 ] On the face of things, the Claim in court file 21149 was commenced more than six years after the date of disbursement of the loans. However this does not mean that the claim is statute barred automatically. Under

section 5 of the Limitation Act which was in force when this claim was commenced, if, after the limitation period has begun to run, but before the expiration of the limitation period, the Defendant confirmed the cause of action, then, in effect, the six year clock begins to run again. Confirming the cause of action is defined to include making a payment on the debt. The practical effect of this is that if the Claimant can prove that the Defendant made a payment on this debt or otherwise acknowledged the debt before the six year limitation expired (and less than six years prior to October 18, 2012), then the claim is not statute barred., 6. Multiple Claims Exceeding $25,000 [ 34 ]

Section 3 of the Small Claims Act allows this court to hear claims for debt, provided that the amount claimed does not exceed the monetary limit for claims as set out in the Regulations to the Act. (Currently, this limit is set at $25,000.) If the claim is for an amount in excess of $25,000, the court can still decide the claim, provided that the claimant abandons any claim to the amount in excess of $25,000, as the Claimant in these files has done. [ 35 ] In this case, the Defendant says that the Claim raised in file 21149 is part of the same claim that is raised in court file 20760, and that the Claimant is trying to do indirectly what he could not do directly, that is split his claim into two actions in order to get around the $25,000 limit in Small Claims Court. [ 36 ] As a general rule, a claimant is not allowed to split a claim into multiple claims in order to get around the monetary limit of the court’s jurisdiction.

In Kids Only Market Ltd. v. Chan [1993] B.C.J. No. 2728 (QB) , Justice Martinson (who was then Judge Martinson, a member of this court) set out the rationale as follows: To allow the Claimant to split its case by proceeding with two separate claims would defeat not only the monetary jurisdiction of the Court but also the purpose of the Act and Rules. The purpose is to allow a claim for $10,000.00 [now $25,000] or less to be resolved in a just, speedy, inexpensive and simple manner (section 2(1) of the Act supra).

This avoids the more complicated and expensive procedure provided for in the Supreme Court Rules. [ 37 ] It is not always clear however when a claim is being split, and when two completely different claims are being claimed for. The Small Claims Act does not limit a claimant to one claim against a particular defendant. But a claimant cannot circumvent the court’s monetary jurisdiction by suing for the same debt in two different actions which break up that debt. [ 38 ] Here the claim in court file 20760 is based on an allegation that the Defendant is responsible for a line of credit at a bank.

If the debts claimed in court file 21149 are found to form a part of that line of credit, and the Defendant is found liable for that line of credit, than the maximum judgement recovered in respect of both claims will be limited to $25,000. But if some or all of the debts claimed in file 21149 are unconnected to the line of credit that is part of the claim in file 20760, then those amounts will be considered independently. [ 39 ] It is on these principles of law that each of the claims will not be considered. Court File 20760 1.

The Claim [ 40 ] The Claimant alleges that he loaned the Defendant approximately $30,000 in 2001, in order that the Defendant could purchase property located at 10990 Sylvester Road in Mission, BC. In order to disburse the money, his claim alleges that he set up a bank line of credit and that the Defendant drew upon that line of credit and made payments on it, up until September of 2011, when he stopped making payments on it. [ 41 ] The Claimant testified that 10990 Sylvester Road had been owned by his parents, Ernest and Betty Babich, and that in 2001, his

parents ran into financial difficulties and were unable to make their mortgage payments on the property. The property was foreclosed upon and put up for sale. The Claimant says that in early 2001, when he was living in Toronto, he was approached by the Defendant and asked to assist with a loan in order that the Defendant could purchase the property. The records of the Land Titles Office show that on July 5, 2001, the Defendant became the registered owner of the property.

A title search shows that the previous owners of the property were Ernest and Betty Babich, who became the registered owners of the property on June 28, 1989 and ceased to be the owners when the property was transferred to the Defendant. [ 42 ] The Claimant testified that he helped the Defendant to purchase the property by securing the funds to help him purchase the property. The Claimant testified that the Defendant told him that the property could be purchased for $60,000 even though it was worth much more.

He said that the Defendant told him that he did not have sufficient funds to purchase the property or a sufficient credit rating to obtain a bank loan for the money he needed. [ 43 ] The Claimant testified that he had a telephone conversation with the Defendant in which it was agreed that the Claimant would obtain a line of credit from the Royal Bank to get funds for the purchase. He said that the plan was to develop the Sylvester Road property and resell it at a profit, at which time all of the loans were to be repaid.

According to the Claimant, he was content with what the Defendant was doing until September of 2011 when the Defendant stopped making payments. [ 44 ] According to bank records from the Royal Bank of Canada for account number 99828196, a line of credit in the name of the Claimant was opened on April 20, 2001. However no money was drawn on this line of credit until June 15, 2001, when $10,000 was disbursed. The Claimant testified that this was money which was loaned to the Defendant. In cross-examination he denied the suggestion that this money was paid to his father Ernest Babich.

The bank statement shows that subsequent amounts were drawn on the line of credit, as listed below, all of which the Claimant alleges was money loaned to the Defendant: Date Amount July 3, 2001 $9,600.00 July 3, 2001 $ 555.00 July 3, 2001 $6,000.00 September 21, 2001 $1,000.00 December 11, 2001 $3,000.00 [ 45 ] The statement shows that between June 15, 2001 and April 9, 2009, interest continued to accrue on the outstanding balance at a rate that fluctuated anywhere between 4% and 8.5%.

It also shows that the following payments were made: June 29, 2001 $ 350.00 January 30, 2007 $1,300.00 October 27, 2008 $1,000.00 [ 46 ] In addition to the payment listed, other payments were also made because, commencing July 20, 2001, the outstanding balance gradually dropped each month. The Claimant says that this was because the Defendant was paying the sum of $300 per month.

This was applied firstly against interest (which would be anywhere between $120 and $202 per month, depending on the prevailing interest rate.) [ 47 ] The Claimant testified that in January of 2004 this line of credit was “maxed out” and he had no more money to give to the Defendant. He testified that he transferred money from his line of credit with the Canadian Imperial Bank of Commerce to the Royal Bank line of credit. [ 48 ] On April 9, 2009, it appears from the bank statements that a new line of credit came into existence.

The balance owing on account 99828196 ($27,505.00) was paid in full and a corresponding balance in this amount was shown on Royal Bank account number 97603534, also in the Claimant’s name. This account enjoyed a lower variable rate of interest, which fluctuated from 3.75% to 5.5%. The monthly interest rate was lower and it appears that regular monthly payments were being made, but only of the interest which was accruing. After each of these payments were made, the balance returned each month to $27,505. This continued until May 20, 2010.

Shortly after that, two other amounts were drawn from this line of credit: 1. The sum of $500 on May 31, 2010. The Claimant states that this was taken to pay himself for tools that the Defendant purchased from him for $500. 2. The sum of $3,957 on June 15, 2010. The Claimant has noted this as being for “tools and money owed.” (These two sums are a duplication of part of the claim brought in court file 21144.) [ 49 ] It appears from the bank statement for this account that some payment continued to be made on a monthly basis, but that this was just essentially covering the interest on the loan.

The outstanding balance remained at $31,962.00 until February of 2011 when it appears that a payment of $1,100 was made, reducing the outstanding balance to $30,862. The payments of interest continued and on September 27, 2011 another payment was made, this time for $1,000, bringing the balance down to $29,862. The Claimant says that the Defendant stopped making payments of any sort on this account after September of 2011. [ 50 ] It must be noted that the amounts withdrawn from the line of credit which the Claimant says were paid to the Defendant are not directly traceable to the Defendant.

The Claimant has made his own notation on the account statements in which he claims that these funds went to the Defendant. For example, several places on the statement he has written “money loaned to Earl.” But the Defendant

does not acknowledge that these notations are true. The Defendant has succinctly stated “I have never had access to the bank accounts or lines of credit of the Claimant.” He adds, “the Claimant is attempting to collect Ernest Babich and Betty Babich debts (sic) from myself, the Defendant.” [ 51 ] There are no receipts which are signed by the Defendant for money advanced through the line of credit, and there are no corresponding bank records showing where the money went once it left the Royal Bank Line of Credit.

For some of these, the Claimant admits that the money was kept by him, but he says that this was to pay himself for things that the Defendant owed him, such as for the tools. A trail in which one follows the money from the Claimant to the Defendant is absent. This is because, due to the length of time it has taken for the claim to be brought, those records are simply not available. [ 52 ] The Claimant testified that the Defendant made his payments under this arrangement by making deposits to a bank account that the Claimant maintained at the Royal Bank in Abbotsford.

A statement from that account shows that for most of the months from November of 2004 to September of 2011 (with some months missed), a deposit of $300 was made to this account. Each month a withdrawal would be made from this account, recorded on the bank statement as “loan interest”. It also appears that the payments which were made against the line of credit on January 30, 2007 (for $1,300) and October 27, 2008 (for $1,000) came from this account. [ 53 ] The Royal Bank records record the name of the person who made the monthly deposits of $300.

Of sixty-one such deposit records, forty-five are recorded as being made by the Defendant, six by the parties’ mother Betty Babich, two by the parties’ father Ernest Babich and eight by the Claimant. Of those eight, the Claimant disputes that he made these deposits and believes that the bank may have mistaken his brother for himself. He requested to review bank surveillance footage, but an email from bank personnel states that this footage is no longer available.

At least three of these deposits credited to him were definitely not made by him because he has produced records to show that he was not in Abbotsford on those days. [ 54 ] The Claimant’s mother Betty Babich swears that the line of credit represents money owed to the Claimant by her husband and her, not by the Defendant. She has produced a series of seven cheques made between October 6, 1999 and June 1, 2000, drawn on the account that a company called Babich Enterprises Ltd. maintained at the HSBC Bank, all payable to the Claimant for sums from between $400 and $740 in support of this assertion.

She also swears that even after her bankruptcy, she continued to make the monthly payments of $300 to the Claimant’s Royal Bank account. Although the deposit slips show that most of the deposits were made by the Defendant, it is her evidence that he did so on her behalf. She says she made these payments in an effort to “keep the family together.” [ 55 ] The parties’ father, Ernest Babich, agrees that the line of credit represents a debt which was owed to the Claimant by him and his wife and not by the Defendant.

Like his wife, he also asserts that the Claimant is wrongfully trying to collect this debt from the Defendant because he is legally unable to collect it from Ernest and Betty Babich, due to their bankruptcy. [ 56 ] It is clear in this conflict that the parties’ parents have sided with the Defendant. In their affidavits, both Ernest and Betty Babich describe the Claimant as “ungrateful” and also both allege that the Claimant has physically battered the Defendant, something that the Defendant also alleges. The Claimant strongly denies this assertion.

The Defendant also alleges that a veiled threat was made to him by the Claimant, stating that he (the Defendant) would “end up like the family dog”, a dog that the Defendant states was put down by gunshot as after contracting cancer. The Claimant admits making a remark of this sort, but denies that it had the meaning the Defendant ascribes to it. He says that what he meant is that the Defendant would also contract cancer because of his malevolence.

While the Claimant is physically larger and stronger than the Defendant, none of the Defendant’s assertions of violence or threats have ever resulted in criminal charges, and it is difficult to assess what, if any, bearing they have on the facts in dispute. [ 57 ] The Claimant testified that when this arrangement was initially made, the agreement he had with the Defendant was never formally documented. He testified that in June of 2010 this concerned him, and he wanted some sort of written record acknowledging the debt.

On June 5, 2010, the Claimant and the Defendant signed a document which was entitled “Promisary (sic) Note”. It reads as follows: “I, Earl S. Babich promise and personally guarantee to pay in full including interest the Royal Bank Line of Credit and the new CIBC line of credit.” [ 58 ] Brenda Balfour is an employee of the Canadian Imperial Bank of Commerce. She testified that in June of 2010 the Claimant and Defendant attended at the branch that she was working at to obtain a loan. She cannot recall the size of the loan being sought, but she did testify that a line of credit was created in the Claimant’s name.

She is unable to recall if the Claimant had an existing line of credit with her branch of the bank. [ 59 ] In his Statement of Facts filed as part of his book of documents, the Defendant made the following representation: “One June 5, 2010, Eric Babich again promised Earl Babich in a verbal agreement to make available his time and financial resources for the subdivision development of 10990 Sylvester Road, Mission, BC.

A promisary (sic) note was signed whereby the funds of a new CIBC Line of Credit for $75,000 would be paid to Earl Babich and in exchange Earl Babich would take responsibility of repaying this CIBC Line of Credit and take responsibility of repaying monies advanced to Ernest and Betty Babich during the 1990s while trying to avoid foreclosure on principal residence and investment property (monies became known to be Royal Bank Line of Credit.)” [ 60 ] If what the Defendant is saying in this paragraph is true, one wonders why the parties didn’t set this out in the written agreement that they did sign.

The promissory note wasn’t required for any other purpose, and if this was in fact the true nature of the agreement, it is surprising that the written agreement wouldn’t contain all of the terms of what it was that the Claimant and the Defendant actually agreed to. The Defendant states that this is part of a lifetime pattern in which he says that the Claimant has made false promises.

[ 61 ] The Claimant testified that the payments on the line of credit stopped in the fall of 2011 after the Defendant and the parties’ parents were not invited to the Claimant’s wedding. The Claimant’s wife, Joanna Baker, testified that she and the Claimant had a very small wedding and that it was the Claimant’s decision not to invite the Defendant or his parents to the wedding. [ 62 ] The Defendant admits that he required outside financial assistance in order for him to purchase 10990 Sylvester Road.

He agrees that when this property was foreclosed upon and auctioned off in the Supreme Court of British Columbia, he was the successful bidder. He admits that he did not have sufficient funds to complete the purchase himself and required assistance from others. His sister, Sheila Balzer, lent him $3,400, and another $6,000 was obtained from a friend of his, Brest Pascal.

He testified that his father also contributed $5000, and that money came from the Claimant. [ 63 ] The Defendant states that he never accessed any of the money from the line of credit and that none of the money withdrawn from it was ever paid to him or used on his behalf. [ 64 ] Sheila Balzer, the parties’ sister, testified that she loaned the Defendant $3400 which was used in the purchase of the Sylvester Road property. Other than that, she is not aware of any verbal agreements between the parties [ 65 ] The Defendant states that any money that the Claimant had paid to him was repaid to the Defendant.

He denies that he had any access to the Claimant’s line of credit. He states that the line of credit on which the Claimant is basing this action relates exclusively to debts owing to the Claimant by his parents and not by the Defendant.

He denies that he has ever agreed to accept responsibility for debts that his parents have owed to the Claimant and states that these actions are an attempt by the Claimant to collect money from him that the Claimant is unable to collect from their parents. [ 66 ] The parties’ mother, Betty Babich, testified that she recalls that any money borrowed from the Claimant to purchase this property was done at the request of her and her husband, although she also testified that she could not remember the precise circumstances of the purchase.

She testified that relations were strained between the Claimant and her husband, and she believes that she may have been the one who spoke to the Claimant about lending them the money so that they could save the property. Although the Claimant denies that the money was loaned to his parents, he said to his mother in cross-examination, “I helped the family when needed” and she agreed. Betty Babich testified that this was one of those times when the Claimant helped them out by lending money to his parents.

She testified that she and her husband are responsible for any money loaned to purchase this property. [ 67 ] Ernest and Betty Babich both filed for bankruptcy in November of 2008. Neither listed the Claimant as a creditor in their bankruptcy. The issue of who was responsible for the line of credit is a murky one. On April 6, 2011, Wayne Gibson, a financial planner with Vancouver Financial Planning Consultants Ltd. sent a letter to Ernest and Betty Babich.

According to the letter, the Claimant was planning on establishing his residence in the United States, and was required to sever his ties to Canada for income tax purposes. This included retirement of the Royal Bank line of credit. In the letter, Mr. Gibson states: “We have advised Eric that he should have you and Earl accept ownership of this line of credit by June 1, 2011.” A similar letter was sent to the Defendant containing the same sentence. [ 68 ] On May 23, 2011, the parties’ parents wrote back to Mr.

Gibson and advised him that they were not responsible for the line of credit and that they felt that the Claimant was being selfish and inconsiderate, considering “all the help his brother Earl and we gave Eric”. In the letter they wrote: 1. The property this line of credit was on is no longer in our name because it was transferred to Earl S. Babich in 2001. 2. Because of Revenue Canada we declared bankruptcy November 10/2008. Enclosed are copies of our certificates of discharge. As Financial Planners you should know the ramifications. 3.

The line of credit is not our responsibility. [ 69 ] On September 16, 2011, the Claimant wrote a letter to the Defendant in which he stated “I gave Mom, Dad and you a line of credit to buy the 10990 Sylvester road property at a time when you could not get the money from anywhere else.

This is the line (sic) Royal Bank line of credit that was to be paid back a month or two later when you got proper financing.” [ 70 ] On December 20, 2011, the Claimant wrote a demand letter to the Defendant in which the Claimant stated that the Royal Bank line of credit was opened in his name for the benefit of the Defendant and the parties’ parents. He reminded the Defendant that he had signed the “Promissory Note” and offered to resolve the matter, failing which, legal action would be commenced. [ 71 ] There are two aspects of this claim which must be determined: (

a) Has the Claimant proven, on a balance of probabilities, that he provided money to the Defendant, disbursed through the Royal Bank line of credit, or is it equally possible that this was really money which was owed by his parents and not by the Defendant? (

b) Even if it is not proven that the Defendant received any money from the Claimant, is the Defendant still responsible for the line of credit because of the “promisory note” that he signed? [ 72 ] On a review of the evidence, much of which is in conflict, the following appears: 1. There is no trail to follow showing where the money withdrawn from the Royal Bank line of credit ended up. The Claimant’s notations on the statement of this account originate from him alone, and have no independent supporting documents. 2 The Claimant states that it went to the Defendant so that the Defendant could purchase the Sylvester Road property in the

foreclosure sale. The Defendant denies this. He says that he is able to account for the money he used to buy Sylvester Road with. Both of these assertions are possible, and because of the passage of time, the absence of sufficient independent corroborating records and the intense animosity that exists in this family, it is impossible to conclude which version is more likely. 3. The Defendant and the parties’ parents assert that the proceeds of the Royal Bank line of credit was actually money loaned to them. The Claimant denies this. Once again, it is possible that this may be true.

Alternatively, it may be that this is a convenient attempt to permit the Defendant to hide behind his parents’ bankruptcy. For the same reasons previously stated, it is impossible to conclude which is more likely. [ 73 ] The burden of proof rests with the Claimant to prove the facts he asserts on a balance of probabilities. For the reasons stated, I find that he has not proven that the money withdrawn from the Claimant’s Royal Bank line of credit was paid to, or used for the benefit of the Defendant. [ 74 ] This does not conclude the matter however.

The Claimant has proven that on June 5, 2010, the Defendant signed a document in which he did “promise and personally guarantee to pay in full, including interest, the Royal Bank line of credit and the new CIBC line of credit.” The next issue to be considered is whether or not the Defendant is liable under this document, whether or not the money benefitted him or his parents. [ 75 ] One a review of this document, it does not meet the requirements for a valid promissory note because it is not for a specific sum and it does not specify a time for payment. But it may meet the requirements of a contract of guarantee.

In order to determine whether or not it meets the requirements for a lawful guarantee, I make the following findings from the evidence, regarding each of the requirements of a guarantee. [ 76 ] 1. In the document, does the Defendant agree to pay the debt of another person or persons? I find that the document signed by the Defendant does contain his promise and agreement to pay a debt owing by the Claimant to the Royal Bank.

It is acknowledged that the Royal bank line of credit was taken out for the benefit of someone else, although there is a dispute as to whether or not that someone else was the Defendant or his parents. Regardless of who the ultimate debtor is, in the document that the Defendant signed on June 10, 2010, he is agreeing to pay the debt of another person. The first requirement of a guarantee has been met. [ 77 ] 2. Has there been default on the debt which the Defendant has guaranteed?

I find that there has been default on the debt, in that the Claimant has not been paid what he has been owed, whether it is owed by the Defendant or by the parties’ parents. [ 78 ] 3. Has the debt changed since the agreement was made? I find that no further amounts were incurred or added to on the debt after the guarantee was signed, other than interest, which the Defendant expressly accepted responsibility for. [ 79 ] 4. Are offer and acceptance are both present?

The signatures of both the Claimant and the Defendant are present on the document, and I find that these, along with the admissions of the parties at trial, prove sufficient offer and acceptance. [ 80 ] 5. Are the terms sufficiently certain such that a court interpreting the document is able to understand precisely what was being agreed to? I am satisfied that the document contains a sufficient certainty of terms. More specifically, I am satisfied as to which Royal Bank line of credit the Defendant did “promise and agree to pay in full”. [ 81 ] 6. Is there valid consideration to support the agreement?

The law requires that consideration for an agreement be given, but that the consideration may be slight. If the Claimant’s evidence is correct and the Defendant received the money from the line of credit, then the money is the consideration he received for the agreement. If, as the Defendant asserts, the money was actually received by his parents, then the consideration he received was seeing them benefitted. Whichever version is the truth, I find that consideration is present on both sides. [ 82 ] 7. Was the agreement voluntary?

Although the Defendant and his parents have alleged that the Claimant was violent and threatening towards the Defendant at other times, no one has asserted that the Defendant entered into this agreement as the result of threats or violence, or that he did not have an operating mind at the time that he signed the agreement. I find that the agreement was voluntary. [ 83 ] 8. Did the agreement meet the requirements of section 59 (6) (

b) of the Law and Equity Act ? The agreement was in writing and I therefore find that it was in compliance with this section. [ 84 ] The Defendant has alleged the existence of a collateral verbal agreement concerning the subdivision development of the Sylvester Road property in Mission, BC. He asserts this as part of his defence for signing his “promise and guarantee” to pay the Royal Bank line of credit. There are two problems with this assertion. Firstly, to be enforceable, such an agreement is required to be in writing under

section 59 of the Law and Equity Act . The agreement that the Defendant alleges concerning the development of land is not a written one and none of the exceptions to 59 have been proven. For that reason it is unenforceable. It is also unenforceable because it is collateral to and inconsistent with the written agreement signed by the Defendant.

I find that the collateral verbal agreement that the Defendant alleges has not been proven, and even if it had been, it is an unenforceable agreement. [ 85 ] Much of what took place between these parties concerning the money disbursed from the Royal Bank of Credit is murky and unclear. All of the evidence presented makes it difficult to discern what took place back then. But one thing is clear. On June 10, 2010, the Defendant signed his name to a promise to pay in full the Royal Bank line of credit that is at the center of this dispute. The document he signed is a valid and enforceable contract.

He should not have signed the document if he did not intend to make good on his promise. On that basis, I find that the Claimant has established his entitlement to judgement for the balance owing on the line of credit. This amount is in excess of the sum of $25,000, which is the limit of this court’s jurisdiction. The Claimant has abandoned any claim in excess of that amount.

[ 86 ] The Claimant is awarded judgement against the Defendant for the sum of $25,000 on this claim. 2. The Counterclaims [ 87 ] The Defendant has filed a counter-claim in which he alleges ten separate causes of action. Two of these were dismissed by the order of the Honourable Judge G. J. Brown, on September 25, 2013. I will deal with each of these individually. (

a) Brokerage Fees [ 88 ] The Defendant is not a licensed mortgage broker. Nonetheless, he has brought a claim in which he alleges that the Claimant owes him $3000 for “brokerage fees for placement of three mortgages, including finding property and original purchase of property purchased by Eric Babich at 6477 Bradner Road, Abbotsford.” For this, he claims that the Claimant owes him $3000. [ 89 ] In his evidence, the Defendant states that he found this house at a value that was below fair market value. He states that he wanted to buy the property, but did not have money for the down payment.

According to the Defendant, the Claimant viewed the property with him. He states that “Eric Babich and I Earl Babich agreed to buy the property in the name of Eric Babich”. [ 90 ] The Defendant states that on December 23, 2003, he and the Claimant “entered into a verbal agreement that was written as an outline but not signed”.

In a remarkable assertion, he says that the Claimant was to finance the development of this property which was actually the Defendant’s property and that he and his girlfriend at the time (now his wife) moved into the property. [ 91 ] The Claimant disputes much of what the Defendant is claiming. But even on the Defendant’s own evidence, it has not been proven that the Claimant entered into any sort of agreement to pay the Defendant $3000 for mortgage broker’s fees.

Even if such a provision had been contained in the written outline of the alleged verbal agreement (something which has not been proven), the fact that terms of a proposed agreement were set out in writing, as the Defendant alleges, but were never signed, supports the inference that no agreement was ever reached between the parties. The Defendant has not proven that the Claimant ever agreed to pay brokerage fees, if this was ever discussed in the first place. [ 92 ] A second problem with this counterclaim is that if such an agreement was ever reached, it is void because it is an illegal contract.

The Defendant is not a registered mortgage broker and

section 21 of the Mortgage Brokers Act makes it an offence for a person to carry on business as a mortgage broker unless that person is registered under the Act. Enforcing such a contract would be enabling the Defendant in the commission of an offence, and the court will not enforce an illegal contract. [ 93 ] For these reasons, this counterclaim is dismissed. (

b) Consultation Fees for Legal Advice [ 94 ] The Defendant has counterclaimed for “consultation fees for legal advice” in connection with a lawsuit that the Claimant was involved in. The Defendant is not a lawyer. For obvious reasons this counterclaim was dismissed by the Honourable Judge Brown on September 25, 2013. (

c) Consultation Fees for Kiwi Farm [ 95 ] The Defendant claims that he is owed $2000 for “consultation fees and performance of work in development of a Kiwi Farm Plan” on the Claimant’s property on Bradner Road. He claims to be entitled, among other things, for obtaining approval of a reduction in property taxes during the time that the farm development plan was in existence. [ 96 ] Unlike many of the other counterclaims, there is some documentation of discussions that the Claimant and Defendant had in 2004 in which it was proposed that the Bradner Road property be used to grow kiwi fruit.

In a document entitled “Farm Meeting 2004- 12-11” the project was discussed. This document is not a contract in any sense of the word because it begins with the statement “we need to agree on a final direction for the property at 6477 Bradner Road” including what crop to grow, how best to utilize the land and how to create income from the property. Later in the document, the author solicits ideas. The fact that this document spoke of an agreement being reached in future makes it clear that no fixed plan was set in place at that time.

The document ends by stating “if we do not have a plan in place by January 1, 2005 and any one of us do not accept this challenge, the property will be sold March 1 st , 2005!” [ 97 ] A second document was prepared, entitled “The Farm”. This document was signed by the Claimant and Defendant as well as a third person named Georgi Petrov.

This document stated as its purpose the following: “Our aim is to develop and operate a long lasting and continually growing farm for wealth and profit.” It contained an organizational chart which described the Claimant as “The Farm/Holding Company”, the Defendant as “Excavating/Equipment Company” and Mr. Petrov as “Technical Knowledge Company.” It allocated responsibilities among the three, Although this has been described as being a contract, it lacks an essential element of a contract in that it is really an agreement to try and reach an agreement at some point in future.

For example, paragraph 2 of the document states “We will meet monthly or as needed to plan and direct the operation.” In paragraph 8 it states “The farm plan will develop and evolve so that we are able to purchase farm property under our individual names.” [ 98 ] Although this document is nothing more than a statement of future hopes and intentions, it is valuable in two respects. Firstly, the document clearly speaks of the Claimant being the owner of the Bradner Road property.

It is not logical that the Defendant would sign a document which speaks of the Claimant being the owner of this property if, as the Defendant alleges, the property was being held in trust for the Defendant. Secondly, there is no mention in either of these documents about the Defendant receiving any consultation fees in regard to this project. [ 99 ] Georgi Petkov, who was one of the signatories to the “Farm” document, testified that he spoke to the Claimant and Defendant in 2004 about the possibility of farming with kiwi fruit being the main crop. Mr. Petkov has a Master’s Degree in fruit production.

He testified that he met with the parties and visited the property on two occasions. He testified that it was his decision not to participate in the project. He envisioned this being a long term project, but he realized that the Claimant wanted to sell the property and he therefore

opted out of the project. [ 100 ] Mr. Petkov’s evidence supports what the Claimant testified about this, that no contract was ever formed and that the possibility of operating a kiwi farm ended when Mr. Petkov’s expertise was no longer available. [ 101 ] As for the Defendant’s assertion that the he obtained “approval of a reduction in property taxes”, the Claimant was able to obtain records from the BC Assessment Authority (through a Freedom of Information and Protection of Privacy Act application) showing that no such reduction was ever obtained.

A request was denied in December of 2004 and in subsequent reviews no approval was given because no crop had ever been planted. [ 102 ] The Defendant’s book of documents contains an application for farm classification which shows the Claimant as the owner of the Bradner Road property and which he signed. [ 103 ] The evidence on this counter-claim satisfies me that there never was any agreement to pay the Defendant $2000 for his work in furtherance of this project. This is not reflected in any of the written documents, or in the testimony of the independent witness Mr. Petkov.

The Claimant was not responsible for the project not proceeding, and even if he was the reason that the project didn’t go ahead, he was within his rights to do so. Up to this point the parties did not have any firm agreement in place. They had only been engaging in discussions towards the formulation of a possible contract. [ 104 ] This counter-claim has not been proven and it is dismissed. (

d) and (

e) Renovations [ 105 ] The Defendant has brought two separate counterclaims which concern renovations which he says he performed for the Claimant at the Bradner Road property between 2005 and 2010. He says that this included digging and placing foundations for additions to the property, clearing land, building driveways, doing framing work, and performing “extensive electrical modifications and improvements.” He values this work at $60,000.

He is also claiming for “opportunity costs for income not earned” while he was performing the previously mentioned work (and claims $40,000 for this.) [ 106 ] The Claimant testified that the Defendant and his wife (then his girlfriend) lived on the Bradner Road property briefly from March of 2004 until September of 2005. He testified that the arrangement he and the Defendant had was that the Defendant would get a low rate of rent in return for performing certain renovations.

The Claimant testified that the Defendant didn’t do any renovations, nor did he pay the reduced rent. [ 107 ] The Claimant admitted in cross-examination that there were some renovations that the Defendant helped with. These included the installation of a Jacuzzi bathtub and a breaker box on the third floor of the house. He testified that the Defendant was paid for the work at the time. [ 108 ] From September of 2005 to October of 2007. Rick Kyte was a tenant at the Bradner Road property. He and his family occupied the top two floors of the house and the Claimant lived in the downstairs floor.

He testified that there had been renovations done to the property but that this was before he and his family moved in. He had no recollection of the Defendant of the parties’ parents doing any renovations on the property during this time. He recalled that on one occasion a pipe had burst, but he recalled that it was the Claimant and not the Defendant who had fixed it. He also had no recollection of there ever being an excavator on the property during the time that he lived there. The Claimant produced an invoice from an electrician in 2006 which was initially paid for by Mr.

Kyte. [ 109 ] Crystal Hayhurst was the former girlfriend of the Claimant from September of 2005 to April of 2009. She does recall that the Defendant did bring in truckloads of gravel on to the property for work which was being done at the back. She testified that at that time the Defendant was paid in full. She testified that she recalls this because some of the money that he was paid with came from her. In cross-examination she recalled that cash was required on delivery of the material and it was paid at the time. [ 110 ] Ms.

Hayhurst also testified that the Claimant did much of the renovation work on the property. She recalls that the Claimant was not working at the time because of a shoulder injury, but that even with the injury he was still able to do renovation work. She also testified that there was an excavator on the property but that she recalls that it was a Komatsu excavator that the Claimant had purchased. (The Claimant did in fact produce a receipt for a Komatsu excavator that he purchased in 2007). She recalls that the Defendant also had brought an excavator on the property but it was broken.

She testified that she had no recollection of the Defendant ever operating the excavator. [ 111 ] Joanna Baker, the Claimant’s wife, testified that during the time that she spent on the Claimant’s property on Bradner Road (from January to June of 2010), she never saw the Defendant perform any renovations to the property.

She testified that she did see the Claimant do a lot of the renovations on his own. [ 112 ] The Defendant produced four invoices dated October 31, 2004, January 31, 2005, February 28, 2005 and April 30, 2005, from a company called Able Enterprises Ltd., alleged to be owing by the Claimant for services performed on behalf of the Claimant for land clearing, fill for the driveway, trucking, excavation, and similar services. The Claimant testified that he had never seen them until after the Defendant had filed his counterclaim.

He maintains that he paid the Defendant everything he provided and that nothing is owed to the Defendant by him. [ 113 ] Jason Manulak testified that in 2005 he installed a floor at the Bradner Road property. He does not recall who did any of the other renovations such as clearing land, installing piping, concrete work or installing the boiler system. [ 114 ] Betty Babich, the parties’ mother, testified that she recalls the Defendant doing a lot of renovations on the Bradner Road property.

She testified that he hauled gravel, helped to build the driveway, worked inside the home doing insulation work, flooring, cement work and helped to renovate the third floor bathroom as well as other renovations in the basement. She testified that both of her sons did renovation work, but that she estimates that the Defendant did approximately 70% of the work. In cross-examination she was

less sure of this figure. [ 115 ] In his statement of facts, the Defendant alleges that the Claimant “demanded and received vast amounts of work” which the Defendant performed. He stated in his evidence that the Claimant had broken his arm in a hockey game and this meant that the Defendant had to do the bulk of the renovations.

In response to this allegation, the Claimant has provided medical reports which indicate that he did in fact suffer an injury to his left forearm at the end of June of 2005, but that his recovery was described by his physician as “swift and uneventful” and he had full elbow and wrist motion. [ 116 ] In the final analysis, it is impossible to discern from the evidence what the true state of affairs was concerning the renovations which took place at this property.

The evidence of witnesses is conflicting, and while the Defendant asserts that money is owing to him, the Claimant has produced receipts for a significant amount of renovations and other improvements to the property that he clearly paid for. What is most problematic is that the Defendant failed to keep proper records of precisely what he did. The amount he claims for in his counterclaim ($60,000) is an estimate or a rounding off, and he gives no explanation as to how that sum is arrived at.

If, as the Defendant asserts, he was party to an agreement in which he was supposed to expend a significant amount of time, labour and money to improve the Claimant’s property, it was most unwise for him to do so without any sort of written agreement or acknowledgement from the Claimant of this understanding. [ 117 ] The burden of proof is on the Defendant to prove this counterclaim on a balance of probabilities. He has failed to meet that burden and this counterclaim is dismissed. (

f) Claim to a Sale of the Profits from the Bradner Road Property [ 118 ] The Defendant claims an entitlement to $20,000 from the sale of the Bradner Road Property, which he describes as “profit sharing in percentage”.

He alleges, in the statement of facts that he has filed with this court, that he and the Claimant entered into a “verbal partnership around December 23, 2003” to “pool time and financial resources to develop and subdivide the financial resources to develop and subdivide the Defendant’s property on Sylvester Road in Mission and to transition the Bradner Road property into a “Babich family residence” and farm for the long term. [ 119 ] The Claimant denies the existence of any such “verbal partnership”.

As the Claimant points out, the property was purchased in his name, either with his money or with borrowed money that he was responsible to repay. The Claimant testified that there was never any discussion, let alone any agreement, about the Defendant being entitled to a share of the profits from the sale of the Bradner Road Property. [ 120 ] There is a major problem with this claim, that being that even if such an agreement was ever made, it is unenforceable because it was not made in writing, as is required under section 59(3) of the Law and Equity Act of British Columbia. That

section is designed to prevent precisely what has occurred here, i.e. one party asking a court, many years after the fact, to find the existence of an oral contract for a significant amount of money that the party couldn’t be bothered at the time to put in writing. That

section reads as follows: A contract respecting land or a disposition of land is not enforceable unless (

a) there is, in a writing signed by the party to be charged or by that party's agent, both an indication that it has been made and a reasonable indication of the subject matter, (

b) the party to be charged has done

an act, or acquiesced in

an act of the party alleging the contract or disposition, that indicates that a contract or disposition not inconsistent with that alleged has been made, or (

c) the person alleging the contract or disposition has, in reasonable reliance on it, so changed the person's position that an inequitable result, having regard to both parties' interests, can be avoided only by enforcing the contract or disposition. (Emphasis added). [ 121 ] The Defendant has represented to this court, in his statement of facts, that this was a verbal agreement, not a written one, and that it tasked him with a number of duties. In paragraph 4 he states that he “allowed” the Claimant to purchase the property (apparently he also allowed the Claimant to do so with the Claimant’s own money).

The Defendant has not furnished any confirmatory evidence of such an agreement and there is nothing in the actions of the Claimant that confirms the existence of such an agreement. Those witnesses that the Defendant claimed, in his Statement of Facts, would corroborate this assertion have not done so. I find that the Defendant has not proven this counterclaim. Even if he had been able to do so, such an agreement would not be enforceable because of non-compliance with

section 59 of the Law and Equity Act . Accordingly, this counterclaim is dismissed. (

g) Loss of Tools [ 122 ] One of the counterclaims brought by the Defendant was for “loss of tools due to thefts at property at 6477 Bradner Road. This claim was dismissed by the order of the Honourable Judge Brown on September 25, 2013. (

h) Compensation for Wills [ 123 ] This counterclaim is very difficult to understand. The Defendant claims an entitlement to $20,000 for “compensation of net present value of contractual obligation pertaining to wills established between” him and the Claimant. He adds, “Eric has negated contractual obligation, whereas Earl has not.” [ 124 ] According to the Defendant’s evidence, he and the Claimant made their wills together early 2005. He produced an invoice from the law firm who prepared the wills, confirming that wills were prepared for both of them.

The Defendant states that he and the Claimant agreed that each would will their entire estate to one another in their wills. It is his evidence that this was agreed upon “even with the fact the Defendant was getting married in June of 2005.”

[ 125 ] The Claimant denies that any such agreement was entered into. He is also unclear under what basis the Defendant claims to be entitled to a portion of his estate. The maker of a will may always revoke previous wills, or change the terms of an existing will. In addition, as the Claimant points out, “I’m still here.” [ 126 ] The Defendant has not proven, on a balance of probabilities, that such an agreement was ever made.

Even if such an agreement had been made, it would almost certainly not have defeated and claims to the parties’ estates by their spouses and children, and the event upon which the Defendant would be entitled to anything has not yet occurred. This is a frivolous counter-claim, unsupported either in law or on the evidence, and it is dismissed. (

i) Consultation Fees for Purchase of Whidby Island Property [ 127 ] The Defendant claims to be entitled to $2000 for “consultation fees of aiding Eric Babich in late 2010 to secure debt and complete a purchase of property on Whidbey Island”.

It is the Claimant’s evidence that “Earl has nothing to do with Whidbey Island” and that there is no agreement of any sort which entitles the Defendant to any sort of consultant’s fees. [ 128 ] The Claimant’s wife also testified that the Defendant had nothing to do with the purchase of the property on Whidbey Island that is owned by her and the Claimant. [ 129 ] The Defendant has not presented any evidence supporting the assertion that he acted as any sort of consultant in connection with the purchase of the Whidbey Island property, or that Claimant agreed to pay him for such services or about how the figure of $2000 was arrived at.

It is also questionable whether or not this court has jurisdiction to enforce an agreement concerning the purchase of property not within this country. [ 130 ] Once again, the Defendant has not met the burden of proving this counterclaim and therefore it is dismissed. (

j) Claim for Rent [ 131 ] The Defendant claims that the Claimant owes him $28,800 for rent under a tenancy agreement dated June 1, 2010. He claims that he is owed $1600 per month for 18 months by the Claimant. A copy of a tenancy agreement was included in the Defendant’s book of documents in which the Defendant is shown as landlord and the Claimant is shown as the tenant. The lease lists the premises as 10990 Sylvester Road in Mission and it is for a one year term at a monthly rent of $1600.

The lease provided for termination on notice at least thirty days prior to the end of the term. [ 132 ] This is one counterclaim which may have some merit, were it not for the fact that, as the Claimant points out, this court is prohibited from hearing claims arising out of residential tenancy agreements. Section 58(3) of the Residential Tenancy Act states that, other than certain claims which may be brought in Supreme Court, this court “does not have and must not exercise any jurisdiction in respect of a matter that must be submitted for determination by the director” under the Residential Tenancy Act .

Section 84.1(1) gives the director under that Act “ exclusive jurisdiction to inquire into, hear and determine all those matters and questions of fact, law and discretion arising or required to be determined in a dispute resolution proceeding” under the Act, and to “make any order permitted to be made”. That

section goes on to provide, in subsection (2), that a “decision or order of the director on a matter in respect of which the director has exclusive jurisdiction is final and conclusive and is not open to question or review in any court.” [ 133 ] Under

section 85 of the Residential Tenancy Act , this court has jurisdiction to enforce orders made by the director if they are in an amount within the jurisdiction of this court. It has repeatedly been held that this court does not have jurisdiction to adjudicate on rights and obligations which are the subject of the Residential Tenancy Act . Universal Ventures Ltd. v. Gillespie [1993] BCJ No. 2691 (B.C. Prov. Ct.) ; Beller v. Andi Properties Ltd. [1993] BCJ No. 2694 (B.C. Prov. Ct.) ; Standfield v. Sebal 2004 BCPC 418 ; Kasey v.

Drake Investments Ltd. 2005 BCPC 368 . [ 134 ] For this reason, this counterclaim is dismissed. Court File 21144 [ 135 ] In this Claim, the Claimant is suing for these items: 1. A separate loan he made to the Defendant for $3200, which he says represents two disbursements of $1600 each (made on June 16 and July 16, 2010) “for payments on a lease that was not implemented 2. The sale of a planer for $500 on May 31, 2010 3. The sale of some other tools (a sander, micro-pinner nail gun, a sander table saw, two roller tables, and some other miscellaneous items) for $757 on May 31, 2010. 4.

A chainsaw he says the Defendant kept, which is worth $1100. [ 136 ] The Claimant testified that for each of these items, he and the Defendant agreed on a price for the tools. He says that the Defendant told him that he didn’t have money to pay him for each of these items at the time, but that the Claimant could pay himself from the Royal Bank line of credit that the Defendant had agreed to accept responsibility for. [ 137 ] The chainsaw (for which the Claimant claims $1100) was purchased in 2007 for $950, according to a receipt produced by the Claimant.

He has also produced information obtained online showing the cost of purchasing a new planer, nail gun, sander, and other tools, although his claim alleges that these items were sold to the Defendant for an agreed price. [ 138 ] The sum of $3200 of this claim relates to two post-dated cheques that the Claimant gave to the Defendant, which he calls “rent

cheques”. He testified that he had given the Defendant these cheques as rental for a property that he never lived in. It is the Claimant’s evidence that this was done as an undocumented loan because, in his words, “Earl needed cash.” [ 139 ] The Claimant testified that he had signed a lease with the Defendant on June 1, 2010. A copy of a tenancy agreement was included in the Defendant’s book of documents in which the Defendant is shown as landlord and the Claimant is shown as the tenant. The lease lists the premises as 10990 Sylvester Road in Mission and it is for a one year term at a monthly rent of $1600. [ 140 ] As was stated earlier in the

summary of evidence on court file 20760, the sum of $500 and the sum of $3,957 were deducted from the line of credit that the Claimant is suing on in that action. He says that these sums are for what the Defendant owed him for the tools claimed in this action and other money owed. (Specifically it is for the tools that he claims the Defendant agreed to buy for $757, plus the two checques of $1600 each). [ 141 ] The Claimant’s wife Joanna Baker testified that she met the Claimant in January of 2010. She was at the Claimant’s property almost every weekend until the property was sold in June of that year.

She testified that she never saw the Defendant or his parents on the property doing any work. She testified that she met the Defendant at around the time she and the Claimant were having a garage sale before moving out of this property. At that time she recalls the Claimant and Defendant negotiating for the sale of certain tools. While she does not recall all of the specifics, she recalls that something was valued at $1000, something else was valued at $500 and something else was given a value of between $50 and $100.

She recalls hearing the Defendant tell the Claimant that he could take the cost of the tools out of the Royal Bank account. [ 142 ] Betty Babich testified that some of the tools which the Claimant says he sold to the Defendant actually belonged to her husband and were not his to sell. She specifically recalls that the table saw belonged to her and her husband. [ 143 ] Ernest Babich also swears that the tools which the Claimant is suing for are his. He swears as follows: “The table saw is and always has been mine and was gifted to me from a family friend, Mrs. Pohl.

The remainder of the tools were gifted to me from Eric Babich as he did not sell them in a garage sale, some were damaged and he wanted new ones, but ultimately he did not need them anymore.” [ 144 ] The Claimant states that the two $1600 cheques were not for rent because he was living at a different location at the time. To prove this he has produced a

summary of his water usage for his alternate residence in Snoqualmie, Washington, and a change of address notification that commenced in June of 2010, directing his mail to be rerouted to the Vancouver Airport. [ 145 ] The evidence is conflicting as to whether or not there was an agreement by the Defendant to purchase tools belonging to the Claimant, or whether the tools belonged to the parties’ father and therefore were not the Claimant’s to sell in the first place. There is also a conflict in the evidence as to whether or not the sum of $3200 was a collateral loan or was actually rent.

As regards the tools, the contradictory evidence makes it impossible to determine whose tools these were. As regards the two payments of $1600, the existence of a written lease casts doubt on the Claimant’s assertion that this was a collateral agreement to the written lease, and if it was, the Claimant faces the same problems in enforcing a collateral oral agreement that the Defendant faced with the collateral verbal agreement that he alleged in court file 20760. [ 146 ] For these reasons I find that the Clamant has not met the burden of proving this claim on a balance of probabilities. This claim is dismissed.

Claim 21149 1. The Claim [ 147 ] In Claim 21149, the Claimant has brought a claim alleging as follows: “At various times, in various amounts, for various purposes, all set out in the attach

[…]