Mia Fonkalsrud - v. -, 2013 SKPC 116

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: July 10, 2013 File: File # 201/12 Citation: 2013 SKPC 116 Location: Regina, Saskatchewan _____________________________________________________________________________ Between: Mia Fonkalsrud - and - Marcy Boxall Kaylea G. Lax For the Plaintiff Holli Kuski Bassett For the Defendant JUDGMENT P. DEMONG , J Introduction [ 1 ] The plaintiff is the proprietor of Awareness Remedial Massage Therapy Clinic and Wellness Centre located in the centre of downtown Regina.

The defendant is a registered massage therapist, who on or about July 31, 2006 entered into a Therapist Agreement with the plaintiff to provide massage therapy services at Awareness as an independent contractor under certain terms and conditions. In or about late October 2011, the defendant terminated her relationship with the plaintiff ’ s clinic and very soon thereafter established her own massage clinic. [ 2 ] The plaintiff brings this action against the defendant alleging the defendant was in breach of a non-competition clause set forth in

the Therapist Agreement, and seeks damages arising from that breach. At issue is the

interpretation of the non-competition clause set forth in that Therapist Agreement which reads as follows: The therapist agrees not to work or provide services of any kind similar to those provided from the Premises within a 1 kilometre radius of the Premises upon termination of this Agreement for a period of two years. [ 3 ] The defendant disputes the plaintiff’s claim alleging that the plaintiff has no valid proprietary interest to protect, and if she does, the clause is unenforceable as the spatial and temporal features of the clause are overly broad, and in any event, the claim is against public policy because its primary purpose is to restrain trade and eliminate competition.

The defendant further denies the plaintiff has suffered damages and specifically places those damages into issue. [ 4 ] The defendant has counterclaimed against the plaintiff alleging that the Agreement demanded that the plaintiff provide the defendant with massage oil during the currency of the Agreement. She says that massage oil was not provided and as a result she had to buy her own. She seeks damages in an amount sufficient to offset her out of pocket costs incurred as a result of providing her own massage oil.

The pertinent clause in the Agreement dealing with the massage oil reads: Awareness shall provide the therapist with massage oil and the use of a room. ... Facts [ 5 ] My review of the evidence suggests that most of the facts are not in issue. [ 6 ] The plaintiff is a registered massage therapist and has been so for the better part of 20 years. In 1997 she leased her present facility at 1876 Scarth Street which fronts a walking mall in the heart of downtown Regina.

It is in what might be described as the core of the business district, and within a couple blocks of sizeable head offices for private businesses, Crown corporations and government agencies. [ 7 ] The plaintiff says that she located her clinic downtown and at this particular location precisely for this reason. She recognized that a significant market in downtown Regina would seek the convenience of massage treatment within easy walking distance of their employment. To that end, she worked assiduously to build her company.

She volunteered her professional services; offered free half hour massages to her larger corporate clients by way of a customer appreciation program to induce more business; and for the most part solely incurred the cost of advertising her clinic. Over time, her business expanded from two massage rooms to five. As the business grew she retained other massage therapists to assist. [ 8 ] The defendant was one such therapist. She was born in Tisdale and obtained her massage licence in 2003. She opened her own clinic in Tisdale and continued practicing there until May of 2006, when she decided to move to Regina.

Having owned her own clinic prior to the move, she understood the importance of networking, and hard work, and word of mouth advertising. [ 9 ] In the spring of 2006 having moved to Regina, she contacted the plaintiff and following an interview agreed to work for and with the plaintiff as an independent contractor under the auspices of a Therapist Agreement. That Agreement identified the nature of their relationship and the work protocols. It is a relatively straightforward four page document. It is easy to read in the sense that it is refreshingly absent of technical legal terms.

It defines the defendant as an independent contractor and obliges her to keep and store client files. It obligates her to comply with office procedures. It establishes alternative methods of remuneration, a termination protocol, and it incorporates a non-competition clause which was previously referred to in the Introduction portion of this judgment. [ 10 ] The defendant had 12 days to review the Agreement before signing it. She did not consult with legal counsel, nor did she ask for any clarification of any particular aspect of it. She did not seek to alter by negotiation any of its terms.

Under cross-examination, she freely conceded that she understood the non-competition clause. I have no doubt of that. It is a simple clause, and the defendant strikes me as a smart, savvy and a hard working business person. [ 11 ] Following the defendant’s execution of the Therapist Agreement, she started working at the plaintiff’s clinic. Because she was new to Regina, she drew her original clientele exclusively from the plaintiff’s then impressive client list. Additional work was obtained by way of walk-in clientele.

These are people who simply attend the clinic and not having a preferred masseuse are assigned whichever massage therapist may be available. Over time, the defendant did, through individual advertising and word of mouth, begin to develop her own clientele. [ 12 ] The defendant continued to work with the plaintiff under a fee arrangement for a period of time. In the first year she paid 40% commission, in the second year 35% commission, and in the third year 30% commission. At some point in time, she converted to a flat room rent arrangement whereby she would pay a monthly room fee.

By the time she left the plaintiff’s clinic she was paying $1,207.50 per month to the plaintiff as a room fee. [ 13 ] Following a period of maternity leave, the defendant chose to leave the plaintiff’s clinic. She found the clinic cramped and because the clinic had to share a bathroom with other users of the building, she felt uncomfortable with strangers in the facility. She felt uncomfortable closing up and leaving at night, because of unsavoury characters hanging around downtown Regina. She had by October

2011, developed a significant client base of her own. [ 14 ] The defendant says, that when she started looking for alternative space, she turned down five potential clinics operating downtown because, she says, they would conflict with the non-competition clause which stipulates that she was not to work for two years within a one kilometre radius of the plaintiff’s clinic. [ 15 ] Eventually, she set up her own clinic, which, as the crow flies, is well within the one kilometre radius referred to in the non- competition clause. [ 16 ] The defendant says, that when she decided to set up at this location, she had the non-competition clause in mind.

In particular, she had in mind the one kilometre spatial limitation, but steadfastly maintains that if one were to walk from the plaintiff’s clinic to the defendant’s clinic, or alternatively drive, the route involved necessarily demands a travelling distance of between 1.4 and 1.6 kilometres. [ 17 ] When the defendant left the plaintiff’s clinic, there were 418 contacts in her client database. The defendant had access to this database. [ 18 ] At or about the same time that the defendant left the plaintiff’s clinic, two other massage therapists also left the clinic.

Presumably, they continued to work within the one kilometre radius stipulated in their respective executed Therapist Agreements. [ 19 ] Shortly after the defendant left the plaintiff’s clinic, the plaintiff noted a significant decrease in business. The clinic was less busy and substantially so.

For the reasons that follow, it is somewhat difficult to assess the extent to which the plaintiff’s business was affected, and in light of the fact that three therapists left that clinic in the same year. [ 20 ] This notwithstanding, the plaintiff maintains that she hired one additional therapist in January of 2012, and a fourth in July of 2012.

She cannot however fill up the rooms that she runs by hiring a fifth massage therapist because the clinic is not busy enough. [ 21 ] At trial, the plaintiff led evidence to show that following the defendant’s departure, 116 clients from the clinic had not returned in the six months following the termination of the Agreement. From this list of 116 clients, the plaintiff led evidence to show that 25 of these clients would, in her view, in the course of two years obtain massage services, and payment of those massage services would work out to be approximately $41,000.00.

The plaintiff would have the Court believe, that by inference, the defendant’s decision to set up her clinic within the one kilometre radius of the plaintiff’s clinic led to the loss of those 116 clients. In the alternative the plaintiff points to at least 25 clients which, based on historical patterns of massage therapy, would cause a significant loss of business to her. [ 22 ] The plaintiff says, and the defendant admits, that a copy of the client list was taken.

She says further, at the date of trial, a small handful of the plaintiff’s clients have returned to the clinic, but not the full complement that might have returned, had the defendant not re-entered the workforce within a one kilometre radius. Once the defendant’s new clinic was established, the defendant had a full complement of clients, and was earning an annual income of perhaps $80,000.00 per year. The defendant maintains that her clients are a mix of pre-existing clients presumably from the downtown core, and some outside of the downtown core. The defendant maintains that she has the best of both worlds.

She is relatively close to downtown and so people can walk to the clinic. In addition, there is additional parking space around her new clinic where her clients can find parking; something which was not as easily available downtown. [ 23 ] Each of the plaintiff and the defendant pointed out the intimate nature of massage. It is quasi- medical in the sense that injured persons frequently attend on a masseuse for care, and many share a personal and detailed account of their body and their injuries.

Often times, a rapport is built between the therapist and the client, such that the client will prefer to use only the therapist which provides treatment. Presumably therefore, if a therapist leaves the existing clinic, the client will follow. This however is not an absolute rule. Some patients simply require a massage and any good massage therapist will do. Obviously, there are exceptions to the general rule that a client will follow a chosen masseuse, because otherwise new therapists (such as the defendant) could never get a hand in the door.

Obviously, when a new massage therapist starts, existing clients at one clinic are handed off to the new therapist so that the new therapist can begin to develop clientele. This is precisely what occurred with the defendant when she began her association with the plaintiff. [ 24 ] Finally, evidence was led at trial to suggest that there were perhaps 130 massage therapy clinics in Regina, 30 of which operate in what might be described as downtown Regina. The Law [ 25 ] In J. G. Collins Insurance Agencies Ltd. v.

Elsley Estate, [1970] 2 S.C.R. 916 , Dickson J. reiterated the principles to be applied in considering the applicability of a restrictive covenant. A non-competition clause is a restrictive covenant. In that case, the Supreme Court of Canada was called upon to interpret the reasonableness of restrictive covenants in an employment contract. That is, between an employer and an employee.

In the instant circumstances, the contract was entered into as between a sole proprietor of a business, and an independent contractor ... and an independent contractor who had previously owned her own massage clinic and who was, in my view, relatively sophisticated in business. Mr. Justice Dickson commented on a number of issues which guide and govern the issues before this Court. He stated:

A covenant in restraint of trade is enforceable only if it is reasonable between the parties and with reference to the public interest. As in many of the cases which come before the Courts, competing demands must be weighed. There is an important public interest in discouraging restraints on trade, and maintaining free and open competition unencumbered by the fetters of a restrictive covenant. On the one hand, the Courts have been disinclined to restrict the right to contract, particularly when that right has been exercised by knowledgeable persons of equal bargaining power.

In assessing the opposing interests the word one finds repeated throughout the cases is the word “reasonable”. The test of reasonableness can be applied, however, only in the peculiar circumstances of a particular case. Circumstances are of infinite variety. Other cases may help in enunciating broad general principles but are otherwise of little assistance. ... It is important, I think, to resist the inclination to lift a restrictive covenant out of an employment agreement and examine it in a disembodied manner, as if it were some strange scientific specimen under microscopic scrutiny.

The validity, or otherwise, of a restrictive covenant can be determined only upon an overall assessment, of the clause, the agreement within which it is found, and of all the surrounding circumstances. ... In assessing the reasonableness of the clause with reference to the interest of the parties, several questions must be asked. First, did Collins have a proprietary interest entitled to protection? ... Second, were the temporal or spatial features of the clause too broad? ...

The next and crucial question is whether the covenant is unenforceable as being against competition generally, and not limited to proscribing solicitation of clients of the former employer. ... Whether a restriction is reasonably required for the protection of the covenantee can only be decided by considering the nature of the covenantee’s business and the nature and character of the employment. Admittedly, an employer could not have a proprietary interest in people who are not actual or potential customers.

Nevertheless, in exceptional cases, of which I think that this is one, the nature of the employment may justify a covenant prohibiting an employee not only from soliciting customers, but also from establishing his own business or working for others so as to be likely to appropriate the employer’s trade connection through his acquaintance with the employer’s customers. This may indeed be the only effective covenant to protect the proprietary interest of the employer. A simple non- solicitation clause would not suffice. ...

There are cases which uphold the validity of a covenant prohibiting an employee from engaging in a particular type of work within a specific area and for an acceptable period of time after the termination of his employment. ... In each of these cases the employee was in a position where he acquired a close personal acquaintance with the clients or customers of the business. Such a restrictive covenant was reasonable, in the words of Lord Birkenhead in Fitch v.

Dewes at p. 165, in order that the employee “Should not be in a position to use the intimacies and knowledge which he had acquired in the course of his employment in order to create a practice of his own in the same place and by so doing undermine the business and the connection of the [employer].” ... After the party relying on a restrictive covenant has established its reasonableness as between the parties, the onus of proving that is contrary to the public interest lies on the party attacking it. ... ...

Unless it can be said that any and every restraint upon competition is bad, I do not think that enforcement of the clause would be considered inimical to the public interest. There were 20 to 22 general agents in Niagara Falls according to the evidence as of the date of trial, employing from 80 to 90 employees. There was nothing to suggest that the people of Niagara Falls would suffer through the loss, for a limited period, of the services of Elsley in the general insurance business. [ 26 ] In

summary, there are five matters to be considered: 1. Was the defendant in an unfair or unequal bargaining position when executing the agreement such that this Court should place restrictions on the right of the parties to freely contract? 2. If the contract is not fair, did the plaintiff have a legitimate proprietary interest to protect? 3. If the contract is fair and the plaintiff has a legitimate proprietary interest to protect are the spatial limitations and temporal features of the clause too broad?

4. If the plaintiff has a legitimate proprietary interest to protect and the spatial limitations and temporal features of the clause are not toobroad is the provision in any event unenforceable and against public policy as a restraint on competition? 5. If the contractual provision is enforceable what is the plaintiff’s measure of damages? Argument and Analysis of the Plaintiff’s Claim [27] The Therapist Agreement in issue is not an employment contract. It is a contract between a sole proprietor, and an independentcontractor.

Prior to the defendant entering into the Agreement with the plaintiff, she owned her own business. She was well aware of thehard work necessary to build up a clinic, and also aware of the advertising cost and the time and effort involved with building up aclientele for a massage clinic. The clause in question is not difficult to understand. In fact, the defendant stated in Court that she wellunderstood its nature and its effect.

As Dickson stated in Elsley, the Courts are disinclined to restrict the right to contract, particularlywhen the right has been exercised by knowledgeable persons of equal bargaining power. In my view there was no meaningful inequalityof bargaining power and thus the Court should not strike down the Agreement. [28] I am satisfied that the plaintiff had a proprietary interest to protect. After many years of hard work and dedication and many dollarsspent in advertising she developed trade connections in the downtown core of Regina and a resulting client base.

The plaintiff says thatshe imported a non-competition clause into the Agreement rather than a non-solicitation clause, because she was aware of the intimatenature of the relationship between a client and a masseuse. As a result, she was more than happy to allow the defendant to continue tocarry on massage therapy, provided it was outside of the one kilometre radius and the two year time frame set out in the Agreement.

Theessence of her argument is that those clients which she ceded to the defendant and the walk-ins which would have originally come to theclinic, and the word of mouth additional clients that the defendant obtained would, on a more than likely than not basis continue tofrequent her clinic, if the defendant chose to leave, and abided by the spatial and temporal features set out in the non-competition clause.It may be that some would continue to go to the defendant, but that was not the plaintiff’s primary concern.

If they chose to leave withthe defendant, she would have been agreeable, having regard to the intimate nature of that quasi-medical relationship, provided thedefendant complied with the non-competition clause. [29] I am satisfied that the clients originally developed by the plaintiff, and eventually transferred to the defendant by the meansdescribed above constitute trade connections within the meaning of the case law and to which a proprietary interest attaches. In so doing,I am cognizant of the fact that potential clients do not constitute a proprietary interest.

On the evidence before me, the defendantconceded that as many as 100 of the people she treated at Awareness have gone to her clinic, and the plaintiff has identified potentially116 clients who have not returned, 25 of which she feels, almost certainly went to the defendant. [30] In my view, the spatial features of the clause are not too broad. The agreement, when read literally anticipates that the defendantwill not set up a competing clinic within a one kilometre radius of the plaintiff’s clinic.

The defendant would invite this Court toconclude that because one may have to walk as far as 1.4 to 1.6 kilometres away from the plaintiff’s clinic in order to get to thedefendant’s clinic, she has met the terms of the clause. The defendant is inviting this Court to effectively “blueline” the Agreement. Thatis to say, the defendant wants this Court to reconsider the clause in the context of a walking distance rather than as the crow flies radius.This, I cannot do. In Shafron v.

KRG Insurance Brokers (Western) Inc., 2009 SCC 6 , [2009] 1 SCR 157, the Court maintainedthat courts should not attempt to rewrite the Agreement to give what it considers to “better effect” the intention of the respective partiesunder the Agreement.

The Supreme Court noted: Blue-pencil severance, removing part of a contractual provision, may be resorted to sparingly and only in cases where the part beingremoved is clearly severable, trivial and not part of the main purport of the restrictive covenant. [31] In Shafron, blue-pencil severance could not be applied to remove the word “Metropolitan” from the restrictive covenant because itwas not merely a trivial part of the covenant agreed to by the parties. [32] Finally, the defendant has drawn this Court’s attention to the decision in Steinke v. Barrett, 2012 MBQB 49 , 2012M.B.Q.B. 49.

In that case, the defendant massage therapist and the plaintiff clinic entered into a Therapist Agreement with a similar kindof non-competition clause, excepting only that the time was for two years, and the spatial feature was a five kilometre radius. Thedefendant invites this Court to conclude that because Winnipeg is five times or more larger than Regina, then, if a five kilometre radiusis unreasonable in Winnipeg, a one kilometre radius in Regina would also be unreasonable. I cannot agree. The area of a circle with a onekilometre radius is 3.14 kilometres.

Comparatively speaking, the area defined in a circle with a five kilometre radius is slightly more than78 square kilometres, (Pi r squared). In the result spatial features in Steinke is 25 times larger than the one in issue in this matter.

[ 33 ] This Court does have some concern with the two year temporal feature of the non-competition agreement. The defendant maintains that the onus is on the plaintiff to prove that it is reasonable. I agree. The plaintiff’s position however is that there are essentially three types of clientele. The first type of clientele and the most profitable, is an individual who is on a long-term treatment regimen, typically arriving once per month over a period of months or years.

The second is an individual, who may suffer some muscular injury, and require treatment for a stated period of time but not necessarily over a period of years.

Finally, there are individuals who simply require a massage from time to time to get rid of the aches and pains of minor injury or a static work environment. [ 34 ] The plaintiff’s position is that while a client may feel compelled to follow a masseuse based on their personal preference and the intimate relationship they develop over time, the distance that they must travel will eventually prove to be unreasonable, and they will return to the plaintiff’s clinic. I tend to agree. As the defendant’s clinic expands, it would not be unreasonable for her to retain new therapists to accommodate the business.

At that point, she will no doubt be in the same situation as the plaintiff ... that is to say, to be eventually forced to cede some of her existing clientele to the new therapist. If existing clientele in turn become dissatisfied with the new therapist and/or the distance that they will have to travel, they may return to the plaintiff’s clinic.

While the evidence on the temporal features presented on behalf of the plaintiff is sparse, I am satisfied that she has convinced the Court as to the reasonableness of the temporal feature. [ 35 ] Since I am prepared to uphold the restrictive covenant, it is the defendant’s burden to show that it should not stand because it is contrary to public policy. It must be noted that the public policy argument is to be considered in the context of “the public”. The evidence before this Court is that there are about 130 massage clinics operating in Regina and 30 of them are in the downtown core.

In this Court’s respectful view, depriving the defendant of the opportunity to work within one kilometre of the plaintiff’s place of business will not do a disservice to the public generally. There are 30 some odd other massage clinics within the downtown core to which the public has access. As Dickson stated in Elsley : Unless it is being said that any and every restraint upon competition is bad, I do not think that enforcement of the clause would be considered inimical to the public interest.

There are 22 general agents in Niagara Falls according to the evidence as of the date of trial, employing from 80 to 90 employees. There was nothing to suggest that the people of Niagara Falls would suffer through the loss, for a limited period, of the services of Elsley in the general insurance business. [ 36 ] Therefore, this Court concludes that the non-competition clause is enforceable, and that the defendant was in breach of that non- competition clause.

Assessment of Damages [ 37 ] Once a Court finds liability in a case such as this, it is incumbent on that Court to assess damages, insofar as it is able, and on the evidence before it, regardless of how speculative that evidence may be. [ 38 ] The evidence on damages in the instant case was found wanting. The plaintiff could have sought a production order forcing the provision of the defendant’s existing client list, and compared it to her own clinic’s client list and in so doing provide a clearer picture of the damages sustained.

She failed to do so, and the defendant did not, at trial, offer this information up. [ 39 ] The Court therefore is left to hobble together a damage assessment based on limited evidence. [ 40 ] There are three scenarios available to the Court. [ 41 ] The first scenario takes into consideration the exhibits filed by the plaintiff and the evidence of the defendant to the effect that 100 clients followed her from the Awareness clinic to her new clinic. [ 42 ] The exhibits indicate that 25 of the clients that the defendant cared for before she left and who have not returned back to the Awareness clinic would generate $41,000.00 over a two year period ... and by extrapolation, the 100 clients that followed the defendant would therefore generate $160,000.00 over a two year period.

This is surprisingly consistent with the defendant’s own evidence that she earned $80,000.00 in her first year of her solo practice which, over the course of two years, would also equate to approximately $164,000.00. But this does not account for several factors. [ 43 ] First, it is clear that some of the defendant’s current clients would have followed the defendant in any event, and regardless of where she set up her practice.

The evidence in Court was that these clients are more likely than not to be on a preventative regimen, and would have constituted the bulk of the professional services rendered by a masseuse. Scant evidence was presented as to the proportion of this clientele on a percentage basis, but based on the evidence before me I am satisfied that it would constitute at least 50% of the defendant’s billings.

Using this analysis, the potential loss to the plaintiff would be reduced by one half, and equate to $80,000.00 over a two year period. [ 44 ] Second, because the plaintiff herself was on restricted hours after maternity and effectively had a full client load, the best she could have obtained, was a percentage share of the billings of any new hire, which according to the Therapist Agreement would have been 40% of gross billings and 40% of $80,000.00 would equate to a $32,000.00 loss. [ 45 ] Third, the evidence was clear that the defendant was a prodigious worker, taking up to as many as half again as many massages as others working within the clinic (the plaintiff excluded).

Since there is no realistic expectation that the plaintiff would immediately hire

an equally accomplished therapist, the $32,000.00 would have to be reduced by one third to give effect to the more limited capacity of a newer hire. This would equate to a $24,000.00 loss over two years. [ 46 ] The second scenario is based on the plaintiff’s rather bald, but not seriously challenged assertion that in 2012 she lost income of between $60,000.00 and $80,000.00. It should be noted that she lost three therapists that year.

That projected two year loss would then equate to between $120,000.00 and $160,000.00 but would also have to be shared between all three therapists which left the Awareness clinic, resulting in a loss at best, and attributable to the defendant only, of between $40,000.00 and $53,000.00.

Once again, that number would have to be reduced by 50% to reflect the likelihood that even had there been no breach, fully half of those clients leaving the clinic would have followed their respective therapists in any event ... and this in turn gives rise to a corrected potential loss of between $20,000.00 and $26,500.00. [ 47 ] The third scenario is proposed by the defendant. She says that the measure of damages is best determined by reference to the room rental rate the plaintiff lost and would ultimately replace in like kind with a new hire.

This in turn would amount to approximately $1,200.00 a month or $28,800.00 over two years. This however presumes that a new hire would have gone straight to a room rental arrangement, which may or may not have arisen. Again this amount would have to be reduced something to reflect that it would take the plaintiff a few months to hire a new therapist and bring her fully up to speed which, I conclude, would take approximately three months.

On that basis, the two year loss would be reduced by 8% and equate to approximately $25,000.00. [ 48 ] Under each scenario the calculations are remarkably similar and on average, equate to a loss of approximately $24,000.00 over two years. Regardless of the scenario used, this is in excess of the monetary jurisdiction of this Court. As the plaintiff has indicated that she is prepared to waive the difference in order to proceed under this Court’s jurisdiction, the plaintiff shall therefore have judgment in the amount of $20,000.00.

She is entitled to pre-judgment interest on that amount from November 1, 2011, which this Court calculates at $280.25. She is also entitled to her costs, which the Court assesses at $300.00. Arguments and Analysis on the Counterclaim [ 49 ] As indicated, the defendant has counterclaimed alleging that the plaintiff is in breach of her contractual obligation to provide massage oil. [ 50 ] After listening to the evidence, I am satisfied that the plaintiff was not in breach. The plaintiff maintained that massage oil was always made available.

In addition, Randy Gilchrist, one of the witnesses at the trial indicated that she new that massage oil was available, and had worked there for a shorter period of time than the defendant. In fact, she maintains that the defendant was part of a group of individuals who specifically discussed the massage oil. She inclines of the view that the defendant must have heard the conversation because she was in close proximity.

Whether the defendant heard the discussion or not, it is apparent on the evidence that at no time during the currency of the agreement did the defendant ever approach the plaintiff to inquire as to the whereabouts of the massage oil, nor did she at any time seek to use the massage oil. It would have been a very simple matter for her to make this request. In my respectful view, this is probably a moot point. Each of the therapists in attendance at the trial indicated that the type or kind of massage oil used is personal to the masseuse.

They may choose to use different kinds based on its texture and feel, its smell or its exotic ingredients. The plaintiff herself for instance uses a special kind of massage oil. The defendant used a different kind of massage oil than what was presumably provided by the plaintiff. The witness Gilchrist also uses a distinctly different oil. [ 51 ] The Agreement does not say that the plaintiff will take it upon herself to supply the type and kind of massage oil that the defendant may wish to use regardless of cost or availability. Massage oil was available.

The defendant simply decided not to use it, or did not consider this to be a significant issue to even discuss it with the plaintiff over the course of five years. As indicated the counterclaim is dismissed in its entirety. [ 52 ] In conclusion the defendant’s counterclaim fails, and the plaintiff shall have judgment in the amount of $20,000.00, pre-judgment interest in the further amount of $280.25, and costs of her action in the sum of $300.00. Paul Demong, J