Shamrock Fencing, 2016 BCPC 244

Citation: Shamrock Fencing

(1992) Ltd. v. Walker Date: 20160815 2016 BCPC 0244 File No: C 0995 Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: SHAMROCK FENCING

(1992) LTD CLAIMANT AND: MICHAEL WALKER DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Appearing for the Claimant: Mr. Rowe Appearing in person: Mr. Walker Place of Hearing: Courtenay , B.C.

Date of Hearing: August 8, 2016 Date of Judgment: August 15, 2016 The Parties [ 1 ] The Claimant (“Shamrock”) and the Defendant, Mr. Walker, are the owners of adjoining properties in Courtenay, British Columbia. Mr. Rowe is the principal shareholder of Shamrock. Mr. Walker operates a trailer park (“the Falcon Trailer Park”) on his property. Shamrock uses its property as a base for its construction business. [ 2 ] Mr. Walker lives in West Vancouver and is rarely in Courtenay. At the time in question, he employed Mr. Michael Sjodin to perform maintenance services at the Falcon Trailer Park and employed Mr.

Sjodin’s wife to manage the business. Mr. Rowe had no direct communication with Mr. Walker in relation to the matters in issue in this case - all of his dealings were with Mr. Sjodin, as Mr. Walker’s representative. Mr. Sjodin had no authority to commit Mr. Walker to an expenditure of money. He required express authorization from Mr. Walker for any commitment which would require the expenditure of money. The Claims [ 3 ] Shamrock claims payment for services rendered in removing four trees from the Falcon Trailer Park and disposing of the refuse.

Because the parties are unrepresented, there was no discussion during the trial of the cause of action on which Shamrock relies. I will consider the claim alternately as a claim under a contract or as a claim for quantum meruit. [ 4 ] There are two separate claims, one for the removal of a maple tree which is alleged to have posed a danger to a manufactured home in the Falcon Trailer Park, and the other for the removal of three hemlock trees which were considered to pose a threat to the stability of a retaining wall then under construction by Shamrock.

Shamrock claims $500 for removal of the maple tree and $2100 for the removal of the three hemlock trees. The Maple Tree [ 5 ] In March, 2005, Shamrock was making preparations to construct a retaining wall on the boundary between the Shamrock property and the Falcon Trailer Park. Some excavation on the Shamrock side of the boundary was necessary for the purpose. The excavator operator observed what appeared to him to be a dangerous branch of an old maple tree overhanging one of the manufactured homes in the Falcon Trailer Park, occupied by Mr. & Ms. Ward. Mr. Rowe spoke to Ms.

Ward and drew the matter to her attention. Ms. Ward spoke to Mr. Sjodin. He told her that he had no authority to deal with the matter, but that he would consult Mr. Walker. Mr. Sjodin telephoned Mr. Walker from Ms. Ward’s home. Mr. Walker told him that, under the terms of her tenancy agreement, Ms. Ward had agreed to be responsible for all issues of vegetation. Mr. Sjodin handed the phone to Ms. Ward. He could hear her end of the ensuing conversation, but could not hear what Mr. Walker said to her. At the end of the conversation, she hung up the phone and said to Mr.

Sjodin: “Go ahead - it can be taken down” On the following day, Ms. Ward spoke to Mr. Rowe, and told him that approval for removal of the maple tree had been given. [ 6 ] Mr. Walker does not recall his conversation with Ms. Ward, although he does not deny that he had one. He says that, if he did discuss the matter with her, he would have pointed out that her tenancy agreement made her responsible for trees and shrubs, and that he would give permission for removal of the maple tree, but only at her expense. [ 7 ] On April 24, 2005, Shamrock sent an invoice to Mr.

Ward for removal of the maple tree, in the amount of $500 plus $35 on account of GST. Mr. Ward declined to pay the invoice, and told Mr. Rowe that it should be submitted instead to Mr. Walker. [ 8 ] There was clearly no contract under which Mr. Walker agreed to pay for removal of the maple tree. The evidence discloses no communication between Mr. Rowe and Mr. Walker, either directly or through Mr. Sjodin, on the question of who would pay for removal. Mr.

Walker clearly gave permission for removal of the tree (which was on his property), but an agreement to pay for removal services is not implicit in the grant of permission to remove. [ 9 ] The principles governing Shamrock’s alternate claim for quantum meruit are set out in the following passages, the first from Kawner Co Canada vs Bank of Canada [1980] OJ No. 816 @ paras 136 - 137 and the second from Re SemCanada Crude Co. [2010] AJ No. 965 ; 2010 ABQB 531 @ paras 41 - 42: Quantum meruit operates both as a contractual doctrine and as a quasi-contractual or restitutionary doctrine.

In a quasi-contractual setting such as exists here, remuneration is paid on a quantum meruit basis when one person performs services at the request of another or freely accepts the services with the understanding that they are not rendered gratuitously: GHL Fridman, Restitution , 2nd ed. (Toronto: Thomson Canada Limited, 1992) at 289-290.

Recovery under the quasi-contractual doctrine of quantum meruit is based on the fulfilment of the following pre-requisites: (1) an understanding on the part of the recipient of the services that they are not rendered gratuitously; (2) a special relationship between the parties, frequently, as here, contractual at the outset, which would make it unjust for one party to retain a benefit conferred upon it by the other; (3) the parties failed to reach an agreement on compensation: Fridman, supra at 289 - 295. * * *

Quantum meruit is the basis for a claim to reasonable remuneration for work done (See Hudson's Building and Engineering Contracts,10th edition, at p. 62.) In order to establish a quantum meruit claim the plaintiff must establish that the defendant has been unjustlyenriched. In Nicholson v. St.

Denis et al (1975), (ON CA), 8 O.R. (2d) 315, a case quite different on the facts,MacKinnon, J. made a general statement at p. 317 that: The law of unjust enrichment, which would more accurately be termed the doctrine of restitution, has developed to give a remedy whereit would be unjust, under the circumstances, to allow a defendant to retain a benefit conferred on him by the plaintiff at the plaintiff'sexpense. That does not mean that restitution will follow every enrichment of one person and loss by another.

Certain rules have evolvedover the years to guide a Court in its determination as to whether the doctrine applies in any particular circumstance.

A claim based on unjust enrichment, to justify an award quantum meruit entails the consideration of three matters: 1) that the defendant has been enriched by the receipt of a benefit; 2) that the defendant has been so enriched at the plaintiff's expense; 3) that it would be unjust to allow the defendant to retain that benefit. [10] Shamrock’s claim for quantum meruit on the quasi-contract principle fails because there is no evidentiary basis for a conclusionthat there was a mutual understanding that Mr. Walker would pay for the removal of the maple tree.

Shamrock’s claim for quantummeruit on the unjust enrichment principle fails because there is no evidence that Mr. Walker was enriched by the removal of the mapletree. Mr. Sjodin agreed with Mr. Rowe’s assessment that the tree was dangerous and that its removal was necessary. However, Mr.Walker was entitled, under the terms of the tenancy agreement, to require Mr. and Ms. Ward to remove it at their expense. The benefitresulting from the removal of the tree was conferred on Mr. and Ms. Ward, not on Mr. Walker. If Shamrock had brought this claimagainst Mr. and Ms. Ward, it might well have succeeded.

The Fir Trees [11] About a week after the removal of the maple tree, Mr. Rowe had a discussion with Mr. Sjodin about three fir trees (or perhapshemlock trees, being a subspecies of fir). The fir trees were on the Falcon Trailer Park, close to the property line. Both men were of theopinion that the roots of the trees would exert pressure on the retaining wall after the excavation on Shamrock’s property and theconstruction of the wall, and that damage to the wall would likely result. For that reason, both men were of the opinion that the treesshould be removed. Mr. Sjodin spoke to Mr. Walker by telephone. Mr.

Walker gave his permission for removal of the fir trees. Mr.Sjodin does not believe that he had any conversation with Mr. Walker about payment for removal services. He came away from theconversation with the impression that Mr. Walker would pay for removal and believes that he may have conveyed that impression to Mr.Rowe, but does not recall what he said. Mr. Rowe does not recall any discussion of payment with Mr. Sjodin. [12] The fir trees were removed in the spring of 2005. On August 31, 2008 (three years later), Shamrock sent Mr. Walker an invoicefor $3300, plus GST of $396, for removal of the fir trees. Mr.

Walker declined to pay the invoice. [13] At the conclusion of Mr. Sjodin’s evidence, I asked him why it was necessary or desirable to remove the fir trees. He said thatthe primary reason to remove them was that the roots were likely to grow toward the retaining wall and to damage or displace it. He saidthat, but for the planned construction of the retaining wall, and associated excavation on Shamrock’s property, he would not haverecommended removal of the fir trees. I asked Mr. Rowe whether he agreed with that and he said that he did. Mr. Rowe thenimmediately sought to retract that concession.

It was apparent to me, and I conclude, that Mr. Sjodin’s evidence on the point is correct,and that Mr. Rowe agrees with it. He sought to retract the concession only because it became apparent to him that it was adverse to hisinterest. [14] There was no contract under which Mr. Walker agreed to pay for removal of the fir trees. That is true for two reasons: (

i) thereis no evidence from which it can be inferred that Mr. Walker agreed to pay for that service; (ii) even if Mr. Walker had promised to payfor the service, that promise was entirely unsupported by consideration, and so could not be contractual. The governing principle is expressed in the following terms in Chitty on Contracts (26th ed) @ paras 151 - 152: … a promise is not, as a general rule, binding as a contract unless it is either made under seal or supported by some “consideration”.

The purpose of the doctrine of consideration is to put some limit on the enforceability of agreements …. * * * The basic feature of that doctrine is that “something of value in the eyes of the law” must be given for a promise in order to make itenforceable as a contract. It follows that an informal gratuitous promise does not amount to a contract. [15] Shamrock’s claim for quantum meruit on the quasi-contractual principle fails because there is no evidence of a mutualunderstanding that Mr. Walker would pay for removal of the fir trees.

Shamrock’s claim for quantum meruit on the unjust enrichmentprinciple fails because the removal of the fir trees conferred no benefit on Mr. Walker - they were removed solely to protect Shamrock’sretaining wall from root damage. Disposition

[ 16 ] Shamrock’s claim is dismissed. Costs [ 17 ] This case has a long procedural history, commencing in 2008, which I described in an earlier judgment: Shamrock Fencing

(1992) Ltd vs Walker [2015] BCJ No. 2265 ; 2015 BCPC 289 . It has been particularly burdensome for Mr. Walker because it is a 90- minute ferry ride, followed by a one hour drive, from Mr. Walker’s home in West Vancouver to the Courtenay courthouse. Those factors may justify an award of costs under either or both of Rules 20(5) and 20(6) of the Small Claims Rules :

(5) A judge may order a party to pay the other party up to 10% of the amount claimed or the value of the claim or counterclaim if the party made a claim, counterclaim or reply and proceeded through trial with no reasonable basis for success.

(6) A judge may order a party or witness whose conduct causes another party or witness to incur expenses to pay all or part of those expenses. If Mr. Walker wishes to make an application under subrule 5, he must prepare, file in the Registry and serve on Mr. Rowe an application and a written submission setting out the basis for his application. That must be done by September 15, 2016. If Mr. Rowe wishes to respond to the application, he must file a written response by September 30, 2016. If Mr.

Walker wishes to make an application under subrule 6, he must also prepare, file and serve with his other material an affidavit providing the particulars of the expenses which he claims and a brief explanation of why they are attributable to Mr. Rowe’s conduct. If Mr. Rowe wishes to file a responsive affidavit, he must do so by September 30, 2016. [ 18 ] I will decide the issues raised by Mr. Walker’s application (if he makes one) on the basis of the written material, without a further oral hearing. August 15, 2016 _____________________ T. Gouge, PCJ