Witting v., 2019 BCPC 237

Citation: Witting v. 1030868 BC Ltd. 2019 BCPC 237 Date: 20190920 File No: C - 1022 Registry: Valemount IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: KEITH MURRAY WITTING CLAIMANT AND: 1030868 BC LTD., YOON JIN JEE and JIN YEOL KIM DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. K. KEYES Counsel for the Claimant: L. Bergerman Appearing for the Defendants: Y.J. Jee and Y.J. Kim Places of Hearing: Valemount, McBride , B.C.

Dates of Hearing: Oct. 6, Dec.8, 9, 2016, Sept. 25, 26, Dec. 5, 2017, Sept. 24, 25, 26, 2018 Date of Judgment: September 20, 2019 Introduction: [ 1 ] In September 2015, the Defendant 1030868 BC Ltd. was the owner of a restaurant known as “The Great Escape” in Valemount, B.C. (the Restaurant). The principals of that company are the individual Defendants, Jin Yeol Kim (whom I will refer to as Mr. Kim) and Yoon Jin Jee (whom I will refer to as Ms. Jee.) Mr. Kim and Ms. Jee are a married couple. Mr.

Kim is also the principal of a numbered company which owns the “Chalet Continental”, (the “Motel”) next door to the Restaurant. [ 2 ] Mr. Witting met Mr. Kim and Ms. Jee in late September 2015 and arranged to rent the restaurant from the Corporate

Defendant. In December 2015, Mr Witting opened the restaurant for business and on December 31, 2015, he received a “notice to pay” (effectively an eviction notice) from the Defendants. He moved out and cleaned the restaurant, handing the keys back on January 3, 2016. This litigation involves competing claims with respect to the breakdown of the rental arrangements, work performed on in the Restaurant and the parking area around it by Mr Witting, claims by the Defendants of damage to the Restaurant, and consequential losses.

History of the Litigation: [ 3 ] Mr Witting filed a Notice of Claim on March 9, 2016, and Court file 1022 was opened. He named the following parties as Defendants: the company, 1030868 BC Ltd (which owns the Restaurant), Jin Yeol Kim and Yoon Jin Jee. The corporate company was served on March 11, 2016. Mr Kim and Ms Jee were served on March 12, 2016. They all filed a Reply with a Counterclaim on Court file 1022 on March 14, 2016. [ 4 ] A second Notice of Claim was filed by the company 1030868 BC Ltd., Jin Yeol Kim and Yoon Jin Jee on March 22, 2016 and Court file 1023 was opened.

They named Keith Murray Witting as Defendant and he was served on March 22, 2016 (same day). Mr. Witting filed a Reply with a Counterclaim on April 4, 2016. [ 5 ] On April 7, 2016, at a Settlement Conference, I ordered the two files to be joined and adjourned it to another Settlement Conference. They were joined under Court file 1022. In these reasons I will refer to Mr. Witting as the Claimant and 1030868 BC Ltd., Mr. Kim and Ms. Jee collectively as the Defendants. [ 6 ] The matter proceeded through multiple days of trial over 2 years, with the parties making written final submissions delivered in December 2018.

History of events giving rise to the litigation: [ 7 ] Mr. Kim and Ms. Jee operated the Motel and at some points during the summer of 2015, they operated the Restaurant – until it closed in mid-September 2015. After the Restaurant closed in September, the Claimant, Mr Witting, spoke to Mr. Kim and they walked through the Restaurant and they discussed Mr. Witting leasing it. No written agreement was made at the time, but the parties did arrive at an agreement on some terms of rental, which included that Mr. Witting would pay a deposit, rent of $3500 per month and utilities.

The parties now disagree on how much the deposit was to be, and when Mr. Witting was to start paying rent and utilities. They did not reach an agreement on the length of the lease term. Both parties agree that they intended to make a written lease for the Restaurant. [ 8 ] In October and November 2015, Mr. Witting did significant repairs and renovations to the Restaurant, with the intention of opening and running a restaurant there. He also did work to repair, clean up and expand the parking area (the “Parking Area”) adjacent to the Restaurant and the Motel.

He removed several pieces of restaurant equipment, wrapped them in plastic and placed them outside the Restaurant. Mr. Witting replaced that equipment with his own kitchen equipment. He opened the restaurant on December 1, 2015. Immediately prior to opening the Restaurant, Mr. Witting delivered a draft lease agreement to the Defendants. They did not agree to the terms it contained. Mr. Witting paid $3500 to the Defendants for December rent on December 11, 2015. The Defendants then prepared a draft lease agreement of their own which was delivered to Mr. Witting just before Christmas.

He did not agree to the terms it contained. [ 9 ] The parties were unable to agree on the terms of a written lease. On December 31, 2015, the Defendants placed a “notice to Pay” on the Restaurant Door requiring Mr. Witting to return the keys at the end of the day and requiring ‘payment’ otherwise the tenancy was forfeited. The “payment” referred to was detailed in a letter dated December 30, 2015, from the solicitors for the Defendants, which demanded that Mr. Witting pay the sum of $14,525 by noon the following day.

That sum included the Defendants’ claims for November rent and GST, December GST and January 2016 rent and GST, as well as $4000 for utilities and $3000 for inventory. Mr. Witting disputed any obligation to pay most of those amounts. [ 10 ] Mr. Witting moved his equipment and supplies out of the restaurant on December 31, 2015, then continued cleaning the Restaurant and handed back the keys on January 3, 2016. Mr.

Witting also removed a fire door he had installed and replaced it with the original one, removed the pellet stoves he had installed, removed heat lamps he had installed, removed the outdoor light fixture he purchased for the parking lot area, and took them all with him. [ 11 ] Mr. Witting now seeks damages for the value of the labour and materials he expended to do the repairs and renovations to the Restaurant and the Parking Area.

He argues the labour and materials expended on the Restaurant occurred in reliance on an oral lease of the Restaurant that was breached by the Defendants, or in the alternative, if the Court finds there was no valid oral lease, then the labour and materials he expended were an unjust enrichment of the Defendant company for which he should be compensated. With respect to the work on the Parking Area, Mr. Witting says the Defendants have been unjustly enriched by that work also, and he should be compensated on a quantum meruit basis. [ 12 ] The Defendants argue that everything Mr.

Witting did to improve the restaurant was a tenant’s improvement for which he is solely responsible and they owe him nothing for any improvements. The Defendants argue that Mr. Witting should pay certain outstanding accounts for improvements he ordered, including invoices for electrical upgrades and the installation of grease traps in the restaurant. Further, the Defendants argue that Mr. Witting damaged the restaurant and its equipment and should compensate them for repairs and replacement of the kitchen equipment.

The Defendant also seeks consequential damages for lost rent on the restaurant, on the basis that they were unable to rent it without their kitchen equipment. They also seek unpaid rent, utilities and payment for inventory they left at the restaurant. [ 13 ] With respect the work on the Parking Area, the Defendants’ position changed according to which of the Defendants was speaking; initially, Mr. Kim’s position was that the work Mr. Witting did was a favour to them and therefore they owed him nothing for it. Mr.

Kim’s later position was that he agreed to forgive October’s rent, or September’s rent, or November’s rent in return for the Parking Area work; Ms. Jee’s position was that the Parking Area work was done in exchange for October’s rent. The Defendants argue that Mr. Witting should compensate them for electrical work they later had done to replace (among other things) some outdoor lighting he removed in the course of doing the work they requested in the Parking Area.

[ 14 ] In these reasons I will first address the claims made by the Claimant, Mr. Witting, and then address the claims made by the Defendants. Did Mr. Witting perform the work on the Restaurant and the Parking Area, and purchase the materials that he claims? [ 15 ] Mr. Witting has provided receipts for the expenditures he made, and has provided a detailed accounting of the hours of labour he and others whom he hired expended. Ms. Jee disputes some of the hours of labour attributed to the work done, both by Mr. Witting and by persons hired by Mr. Witting to assist him, but it is not disputed that Mr.

Witting did hire and pay others to assist him. Ms. Jee suggested that the work in the Parking Area may not have been performed on the particular dates that Mr. Witting claims, but I find the date on which the work was performed is not relevant. She disputes whether some of the work done in the Restaurant was actually necessary, but not that it was in fact done. She also disputed one receipt, for the outdoor light fixture, claiming it was too expensive and suggesting it was actually fraudulently submitted.

She later modified her accusation of fraud when she saw the MasterCard slip proving the light fixture had been paid for by Mr. Witting, but maintained that the light fixture was more expensive than it should have been. [ 16 ] The Defendants do not seriously dispute that the work on the Restaurant was actually performed. The Defendants’ complaint seems to be more directed at how many hours were attributed to the work, although the Defendants supplied no alternative version for how long the work actually took or ought to have taken to perform. The Defendant appeared to argue that the hourly rate Mr.

Witting proposed as the value of his work ($45/hour) was too high, but then made claims for compensation based on the same hourly rate. [ 17 ] I find Mr. Witting did the work he claims to have done in the Parking Area and in the Restaurant. I find the hourly rate claimed by Mr. Witting for the work he performed is appropriate. I am satisfied that Mr. Witting performed, or hired others to perform the work he described in his evidence and that the receipts he provided were actually incurred for the work he undertook at the Restaurant and in the Parking area.

However, I find that the hours of work attributed to “Kevin” on October 6, 2015, is in error as Mr. Witting’s calendar entry shows that Kevin did not work that day. Otherwise, I am satisfied that the claimant worked the hours claimed and paid Kevin (and others) to work as claimed and that he actually did pay the wages to others as he claimed. Why was the work performed? [ 18 ] The location and nature of the work is pertinent to obligations of the parties. The work on the restaurant occurred because the parties intended that Mr. Witting open and operate a restaurant there. Some of the work was performed, Mr.

Witting argues, because it was necessary in order to make the Restaurant comply with health, safety and building codes without which it could not be operated at all. Other work was performed because it was necessary to have a building with functioning infrastructure – like a functioning electrical system or a roof without leaks. He argues that the Defendants should be responsible for that. The Defendants disagree, arguing that the Restaurant was fully functional when they offered it to Mr. Witting, so that any work done on the restaurant was unnecessary – and therefore Mr.

Witting should pay for the plumbing and electrical upgrades that he hired people to do, and carry the cost of all the labour he performed and the labour and materials he paid for. The Defendant argues that all labour and materials so expended are tenant’s improvements for which Mr. Witting must bear the cost. [ 19 ] The work on the Parking Area occurred for reasons unconnected with the rental or operation of the restaurant. I will address the Parking Area work first. The Parking Area Work [ 20 ] Mr. Witting did work on the Parking area around the restaurant and between the restaurant and the Motel.

He removed a curb, a fence, boulders, a garden area and garden lighting that was located between the Restaurant and the Motel. He removed a propane gas line and repositioned a large commercial garbage dumpster, filled holes in the parking area surface with blacktop filler, removed an outdoor light fixture and then ordered, obtained and re installed another outdoor light fixture. The other work that Mr. Witting performed was to dig up, insulate and recover a water line that ran underground through the same area. Later, Mr. Witting also spread gravel, supplied by Mr.

Kim, over the former fence and garden area, to improve the parking lot in that area. All of this work was done in order to improve the Parking for the Motel, as it would permit a “pull-through” of larger trucks and buses from the Motel parking lot, through the Restaurant parking lot and back out to the street. Although he incurred expenses, employed and hired equipment and hired labourers to assist with the work, Mr. Witting did not ask Mr. Kim for payment at the time. [ 21 ] Mr. Witting says that he performed the work in the parking area because Mr. Kim asked him to do it. He testified that Mr. Kim and Ms.

Jee told him it was their top priority to have the fence and garden area removed and converted to parking area for the Motel before winter came. The Defendants confirmed in their testimony that they purchased the Restaurant primarily so that they could expand and improve the motel parking, in particular to permit pull through access for large trucks. At trial Mr. Kim explained to me that he had been unable to do the parking area expansion because it would require the removal of several large boulders placed there by a neighbour’s son to prevent trucks from driving around the parking lot. The neighbour, Mrs.

Nordley, had her water line running underneath the garden and fenced area that Mr. Kim wanted removed, which separated the Motel property from the Restaurant property. Mrs. Nordley was concerned that once the fence, garden and large boulders had been removed, so that large vehicles could drive through, the weight of the vehicles would compress the earth and cause her water line to freeze in winter. Mr. Kim explained to me that this problem was very difficult to resolve– that was the reason the parking area expansion had not previously occurred. [ 22 ] It is not clear to me that Mr.

Witting was aware of the Nordley water line problem when he began the work on October 1, 2015, to expand the Parking Area. He rented an excavator to remove the curbs and large rocks, removed trees, and dug up and levelled the garden area, as well as moving the large garbage dumpster and all sorts of debris. He took the debris to the dump. Mr. Kim and a motel employee assisted Mr. Witting with some of the work. Mr. Kim was present for much of the work, went with Mr. Witting to the dump and took some of the photos of the work as it progressed. Mr. Witting testified that he asked Mr.

Kim to shut off the breaker for the garden lights when he began to dig up the garden area. Mr. Kim did not do that. Mr. Kim testified that both he and Mr. Witting were surprised to see sparks come up during the excavation. Mr. Witting said the underground wiring was improperly done and would have to be replaced in any event, as it was simple interior house wire laid underground, which does not meet any electrical standard. Regardless of the electrical issue, Mr. Kim said he was very thankful that Mr. Witting had done this work for him. The Defendants now seek

compensation from Mr. Witting for the re-installation of that electrical line. The Water line work [ 23 ] Mr. Witting testified that Mr. Kim asked him to help resolve a dispute about the water line that ran through the parking lot to Mrs Nordley’s property. She had telephoned Mr. Kim in October expressing her concern as noted above. Mr. Witting spoke with her son, who said he (and I infer, his mother) would be satisfied if the earth over the water line was removed, the water line covered with a styrofoam insulation barrier and then buried again – so Mr.

Witting rented an excavator, dug up the water line, bought and installed the styrofoam and recovered and levelled the area. This resolved the problem Mr. Kim had with the neighbour, and made the parking lot expansion workable for everyone. However, Mr. Kim testified that he did not ask Mr. Witting to do this work, rather, Mr. Witting took upon himself as a favour to Mr. Kim. [ 24 ] Later in November, Mr. Kim arranged to have a truckload of gravel dropped at the area where the fence and garden had been removed and the water line covered, and Mr.

Witting rented a skid steer and spread the gravel all over the new parking area. [ 25 ] Ms. Jee takes the position that Ms. Nordley’s water line is not a legal easement and therefore Ms. Nordley, not the Defendants, should pay for any work that was done to protect her water line. However, Ms. Jee was not present at the Motel or the Restaurant and was not in communication with Mr. Kim at the time this work took place (October 24), so her evidence does not assist me with determining what went on between Mr. Kim and Mr.

Witting with respect to that work. [ 26 ] The positions (and evidence) regarding the Parking Area work changed over the course of the trial. Mr. Kim and Ms. Jee admitted that they decided to purchase the Restaurant specifically because they wanted to expand the parking area for the Motel. They admitted that in order to achieve that goal it was necessary to remove the fence and garden area and boulders between the properties. [ 27 ] However, Mr. Kim testified that he didn’t really ask Mr. Witting to do the work but only asked him “about” it. Mr. Kim suggested that Mr.

Witting “took it upon himself” to do the work as a “favour” and that it was “easy” and therefore there was no expectation on the part of anyone that Mr. Witting would be paid for his labour or his expenses. Later in his testimony, Mr. Kim said that the work Mr. Witting had done on the parking area was very helpful, and so he and Ms. Jee had decided to “forgive” the October rent on the Restaurant that he said Mr. Witting owed. Mr. Kim later testified that he was forgiving September rent, and at another time he testified that the forgiveness was for November rent. Mr.

Kim eventually agreed that he had not asked for rent in October and November because there was an agreement between he and Mr. Witting that there was to be no rent until Mr. Witting opened the restaurant – which didn’t happen until December. There was no suggestion in his evidence that he ever discussed this “forgiveness” of rent with Mr. Witting; in fact, he testified that the forgiveness of rent was something he and Ms. Jee discussed only amongst themselves. [ 28 ] Ms. Jee testified that she and her husband did not permit Mr. Witting to have a key to the restaurant until she and Mr.

Kim left town October 9, and that Mr. Kim always accompanied Mr. Witting into the Restaurant whenever he asked to get into the Rstaurant until they left town. She also testified that Mr. Witting did no work inside the restaurant until later in October. I give her evidence no weight on the issue of what went on inside the restaurant because she admitted that she was not actually present at the motel or the restaurant and spoke to no one there from October 9 until mid-November (because she was required not to attend there by court order, due to an altercation between herself and Mr. Kim). [ 29 ] Ms.

Jee testified that she and her husband decided not to charge Mr. Witting rent for October. She testified that Mr. Witting was to pay rent commencing in November, and that she “kept asking” for rent and a deposit (even though she was not present to make any such requests from October 9 through November 16). She commented that her husband was “not a person to ask for rent.” Sometime after she returned to the Motel in mid-November, she gave Mr. Witting a sticky note asking for December rent (and a deposit of $10,000) explaining to the Court that “maybe” she thought “at least” December rent should be paid.

She testified that she asked Mr. Witting for rent “every day” – after he opened the Restaurant in December. She did not at any time testify that she and her husband discussed with Mr. Witting any arrangement not to charge October rent in return for his work on the Parking Area. [ 30 ] I do not accept that there was any agreement between Mr. Witting, Mr. Kim and/or Ms. Jee to do the Parking Area work in return for a “forgiveness” of October rent on the Restaurant. Mr. Witting maintains that the agreement was he was to pay no rent until the restaurant opened. In his evolving evidence, Mr.

Kim eventually agreed that Mr. Witting was not to pay any rent until the Restaurant opened – which did not happen until December. In that case, there was no rent owing, and therefore none to “forgive”. [ 31 ] Aside from their testimony, I find that the behaviour of the Defendants is not consistent with an agreement that Mr. Witting was to pay rent in October. If there had been such an agreement, I would have expected that Mr. Witting would have paid his rent on or before October 1.

He did not pay any rent and there is no suggestion in any of the evidence of the Defendants that they asked him for October rent on or before October 1 or any day after that (until lawyers became involved in December.) Further, if the Defendants believed that they had rented the Restaurant to Mr. Witting as of October 1, they should have provided him with a key and unfettered access to the Restaurant. Instead, Ms. Jee testified that Mr. Witting had to come and ask for the key and that Mr. Kim went with him to the restaurant every day, prior to their departure on vacation October 9.

Such behaviour is entirely inconsistent with the existence of a tenancy commencing October 1 st . [ 32 ] Finally, I note that the Parking Area work evolved over time (some of it unanticipated, like the water line work) right through to spreading the gravel on the water line area in November. I do not see how unanticipated work that continued until mid-November could have been the subject of an agreement between the parties on or before October 1, regarding the forgiveness of October rent. Despite the vehemence with which Ms. Jee presented her evidence concerning the water line work, Ms.

Jee was not present when any of that work took place and took no

part in any discussion about it. I give her evidence no weight on this issue. [ 33 ] I find that there was no agreement between the parties to forgive October rent on the Restaurant in exchange for the work Mr. Witting did on the Parking Area in October and November. I do not accept Mr. Kim’s evidence that he did not ask Mr. Witting to do this work nor that Mr. Witting took it upon himself to do it as a favour. I find Mr. Kim asked for the work to be done and that Mr. Witting performed the work as requested and incurred expenses to do so. Although the parties did not discuss repayment at the time, I find that

neither of them believed the work was a gift – the fact that Mr. Kim now claims he was willing to forgive rent in exchange for itindicates he accepted he owed Mr. Witting something for the work. [34] The Parking Area expansion was of considerable benefit to Mr. Kim in his operation of the Motel because he now has pull-through parking for his motel, which was his stated aim in purchasing the Restaurant. This work was of no benefit to Mr. Witting inpreparing to open and operate the Restaurant and in fact only delayed his efforts to open the Restaurant.

To his detriment, he expendedhis time and money doing the Parking Area work. I find that Mr. Witting did the Parking Area work because Mr. Kim asked him to do soand that Mr. Kim received the entire benefit of his work. [35] Mr Witting argues that the law of unjust enrichment applies to his situation; that is, he provided labour and materials whichprovided a benefit to Mr Kim, which has thereby enriched Mr Kim. That enrichment is unjust because Mr Kim did not pay for it orcompensate Mr Witting in any way. There was no agreement between them that Mr Witting would do this work for free.

Although MrKim would like to suggest that Mr Witting expended all this labour (and spent his own money to pay others, purchase supplies and rentequipment) as a “favour” to Mr Kim, I have found he knew perfectly well it was not a gift from Mr Witting. [36] In the case of Kerr v. Baranow, 2011 SCC 10 , 2011, 1 S.C.R. 269, the Supreme Court of Canada set out the situationsin which the law of unjust enrichment applies: [31] At the heart of the doctrine of unjust enrichment lies the notion of restoring a benefit which justice does not permit one to retain:Peel (Regional Municipality) v.

Canada, (SCC), [1992] 3 S.C.R. 762, at p. 788. For recovery, something must havebeen given by the plaintiff and received and retained by the Defendant without juristic reason. A series of categories developed in whichretention of a conferred benefit was considered unjust. These included, for example: benefits conferred under mistakes of fact or law;under compulsion; out of necessity; as a result of ineffective transactions; or at the Defendant’s request: see Peel, at p. 789; see,generally, G. H. L. Fridman, Restitution (2nd ed. 1992), c. 3-5, 7, 8 and 10; and Lord Goff of Chieveley and G.

Jones, The Law ofRestitution (7th ed. 2007), c. 4-11, 17 and 19-26. [37] With respect to the Parking Area work, I find that Mr Witting performed this work at Mr Kim’s request. There is no just reasonthat Mr. Kim should receive the benefit of Mr. Witting’s work without compensating Mr. Witting for the reasonable value of that work. [38] I have already found that the receipts provided by Mr.

Witting substantiate the expenses he incurred in the course of that workand I find the amounts claimed for labour, for himself and workers he hired, to be reasonable for the work that was done, aside from the$75 labour charge for Kevin on October 6 2015. Mr. Witting itemized the labour and materials at Tabs 10,11,12,13,14,15,16, and 17 ofExhibit 1. [39] For the labour, materials and rental expenses incurred to do the Parking Area work Mr. Witting will have judgement for $6,006.70 (-$75)= $5,931.70 against Mr. Kim. The Restaurant Did the parties have an oral lease of the restaurant?

Law: [40] The Law will enforce contracts that people make, whether they are oral or written, as long as the terms are clear and lawful. Iam assisted in this regard by Le Soleil Hotel & Suites Ltd. Le Soleil Management Inc., 2009 BCSC 1303, which provided a helpfulexposition of the principles involved in establishing whether oral contacts are enforceable: [328] The

interpretation of oral contracts turns on the same essential principles: Lawson Graphics Pacific Ltd. v. Simpson (1987), (BC SC), 12 B.C.L.R. (2d) 126. If the alleged agreement has not been reduced to writing, the Court must consider what theparties said and did and assess objectively whether, in context, their words and actions establish an intention to be bound: PeriscanFinancial Services Inc., supra; Leong & Associates, supra. The genesis and aim of the transaction is an aspect of the relevant context forconsideration: Canada Square Corporation, supra.

The credibility of witnesses will be particularly important and differing versions ofevents will increase the difficulty of establishing that an enforceable bargain was made: Anchorage Management Services Ltd. v. 465404B.C. Inc., 1999 BCCA 771 , 1999 CarswellBC 2947 (C.A.). [329] When the Court considers the parties’ manifest intentions, it may be required to determine whether they intended to create abinding contract or simply reached a basis for future agreement.

This question often arises where, as in the Specific Performance Action,the alleged agreement contemplates the execution of a further formal contract. [330] It is not necessary for every conceivable matter to be resolved between the parties before an enforceable contract is created. Thelaw does not, however, recognize an “agreement to agree”. The question for determination is whether the parties have reachedagreement on all matters that are vital or fundamental to the arrangement or whether they intended to defer legal obligation until a finalagreement has been reached: Boult Enterprises Ltd. v.

Bissett (1985), (BC CA), 21 D.L.R. (4th) 730. [331] The classic statement of the law is found in Van Hatzefeldt-Wildenburg v. Alexander, [1912] 1 Ch 284 at pp. 288-289: It appears to be well settled by the authorities that if the documents or letters relied on as constituting a contract contemplate theexecution of a further contract between the parties, it is a question of construction whether the execution of the further contract is acondition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transactionalready agreed to will in fact go through.

In the former case there is no enforceable contract either because the condition is unfulfilled orbecause the law does not recognize a contract to enter into a contract. In the latter case there is a binding contract and the reference to themore formal document may be ignored. [332] If agreement on all essential terms is established, on occasion the law will permit certain terms to be implied to give business

efficacy to the bargain: Catalyst Paper Corp., supra , at ¶ 27. For example, in Canada Square Corporation, supra , a case involving an agreement to lease, the Court implied terms such as the dates for payment of rent. A term should not be implied, however, unless it is necessary: Alpine Veneers Ltd. v. Reed Lumber Co. Ltd. , [1983] B.C.J. 2289 (C.A.), ¶ 33-34 . In addition, no term should be implied where it would have the effect of rewriting the bargain or contradicting its other terms: Alpine Veneers, supra , at ¶ 33. [ 41 ] In this case, if the parties had an agreement, it was oral.

Although they exchanged draft written leases, both of the drafts contained terms that neither had even discussed with each other, much less agreed upon, and neither written draft was executed by the parties. I find that the written draft leases are of no assistance to me in establishing what the parties agreed upon – a comparison of the written draft agreements merely highlights the lack of agreement between the parties. [ 42 ] I must then turn to the evidence presented to consider whether they had an enforceable oral agreement between them.

In order to establish whether the parties had an oral agreement, and to establish what (if any) the terms of that agreement were, the Court must look at both the testimony of the parties and their actions – and the degree of consistency between the two. At the end of the day, in order to find that an oral lease existed, I must be satisfied that the essential terms of a lease were in fact agreed upon by the parties. [ 43 ] I am assisted in this regard by Le Soleil Hotel & Suites Ltd. Le Soleil Management Inc. , 2009 BCSC 1303 at para 337 , which lists the essential elements of a lease agreement: [337] In A.L.

Scott Financial, supra Neilson J. (as she then was) described the essential elements of a lease agreement. She stated: [110] The starting point is the identification of the essential terms of a lease.

Christopher Bentley et. al., eds., Williams and Rhodes: Canadian Law of Landlord and Tenant , 6th edition, looseleaf (Toronto: Carswell, 1998) identifies the requisites for a valid agreement of lease at ¶ 3:2: To be valid, an agreement for lease must show the parties, a description of the premises to be demised, the commencement and duration of the term, the rent, if any, and all material terms of the contract not incident to the relation of landlord and tenant, including any covenants or conditions, exceptions or reservations.

See also, Canada Square Corporation, supra Parties and premises: [ 44 ] It is clear that Mr. Witting and the Defendants discussed the idea of Mr. Witting leasing the Restaurant. Both appear to have been aware that the restaurant was owned by the corporate Defendant. Thus, the parties and the premises are certainly established. Rent, Commencement and Duration of the Lease: [ 45 ] The parties certainly agreed that Mr. Witting would pay rent of $3500 per month, for the Restaurant - but not when he should start paying rent nor how long he would pay rent in that amount.

The evidence conflicts as to the commencement and duration of the lease. Certainly there was no agreement on duration – Mr. Witting initially suggested a 1 year lease after which he would buy the restaurant, but the Defendants did not want to sell the Restaurant. In the written draft leases, the parties’ proposals as to the duration of the term were entirely different - Mr. Witting proposed 5 years at the same rent, and the Defendants proposed 3 years with annual increases in rent. [ 46 ] With respect to commencement date of the lease, the parties disagree. Mr.

Witting testified the agreement was that he would pay rent when he opened the Restaurant; Mr. Kim testified he had forgiven Mr. Witting’s payment of rent, but his testimony changed regarding which month was forgiven (September, or October or November), from which the Court might infer that the lease was to commence in any of those months. However, Mr. Kim also testified that Mr. Witting was not to pay rent until he opened the Restaurant – which did not in fact happen until December. [ 47 ] Ms. Jee testified that Mr.

Witting was to start paying rent in November, and to support that contention, she points to an advertisement posted by Mr. Witting seeking staff for the restaurant, such work to commence November 1. Mr. Witting says he had hoped to open November 1, but had been so delayed by the work he had to do (at the Restaurant and the Parking Area) that he could not open November 1. Ms. Jee testified that she saw Mr. Witting every day after she returned to the Motel on November 16, and that “every day” she asked him for rent – but only after he opened the Restaurant on December 1. [ 48 ] In November, she gave Mr.

Witting a sticky note asking for rent and a deposit – but the note refers to December rent, not November. It seems to me unlikely that if the parties had agreed that Mr. Witting would pay rent commencing November 1, that Ms. Jee would not have demanded November’s rent from Mr. Witting in November – but she did not. Taking into account that behaviour along with Mr. Kim’s agreement in cross examination that he had agreed that Mr. Witting would not pay rent until he opened the Restaurant, I conclude that the payment of rent was not to commence until Mr.

Witting opened the Restaurant – which did not actually happen until December. [ 49 ] The parties had agreed that Mr. Witting should pay utilities, specifically electricity, propane and telephone – but there does not appear to have been any agreement of when the transfers of these accounts should happen or when he should start paying for them. Mr. Witting testified that he understood he would begin paying utilities when he became operational. [ 50 ] Ms. Jee testified that Mr.

Witting should start paying all utilities commencing October 1, 2015, but she did not make arrangements to transfer the Telus number into Mr. Witting’s name (something he could not do without her participation) until after he was operating the Restaurant in December. Mr. Witting did pay the Telus account for the Restaurant, but only after it was transferred into his name in mid-December. It does not appear that Mr. Witting made any use of the Telus service until December. [ 51 ] Mr.

Witting did not pay the Canwest propane account (which remained in the name of the corporate Defendant), although he had arranged for the tanks to be filled in early October and November so that the Restaurant would have heat and hot water (which was

necessary for the cleaning and renovations going on, but also necessary in any event so that the pipes in the restaurant would not freeze). On the other hand, in December Mr. Witting did arrange to transfer the BC Hydro electrical account into his name and paid the account from October 1, 2015, to January 4, 2016. [ 52 ] The evidence and conduct of the parties is inconsistent with the positions taken by each of them. Mr. Witting started paying rent in mid-December and took over payment of the Telus account in mid-December, but paid for Hydro from October and never paid the Canwest propane account.

The evidence of the Defendants is internally inconsistent - that the lease commenced in September, or October, or November - and their conduct is inconsistent with all of those positions, since they did not actually seek rent from Mr. Witting until December. Thus, I am unable to find that there was any actual agreement a on a commencement date for a lease of the restaurant. Deposit: [ 53 ] The parties discussed a deposit, but now disagree on how much it was to be, and did not establish a date by which it was to be paid. Mr. Witting testified the deposit was to be $10,000 and his draft lease contains that term.

The Defendants testified it was to be $20,000, and their draft lease contains that term. However, in her sticky note given to Mr. Witting in late November, in addition to asking for December rent, Ms. Jee asked for a $10,000 deposit, and provided a void cheque (presumably so that the funds could be deposited to her account.) Ms. Jee explained in cross examination that she had offered to Mr. Witting that he “temporarily” pay just half the deposit, but that proposition was never suggested to Mr. Witting.

It seems to me unlikely, if the contents of the sticky note had been discussed and agreed upon, or even offered to Mr. Witting, that there was any reason to leave a sticky note at all, much less one that did not mention the $10,000 sought was only half of the agreed deposit. Although I find that the parties had agreed there should be a deposit, I am unable to find that the parties agreed on the amount of the deposit nor when it was to be paid. Agreement to prepare a written lease: [ 54 ] All parties agreed that they were to prepare a written lease, but obviously not on what the terms of that lease were to be.

The draft lease agreement each party provided to the other contained profoundly different substantive terms than anything agreed upon orally. Thus the agreement to put the lease into writing was in this case, nothing more than an “agreement to agree”, which is not enforceable at law. Decision regarding whether there was an oral lease of the Restaurant: [ 55 ] I find that the parties had not arrived at an agreement, oral or otherwise, containing the essential terms of a lease agreement. The only thing that was certain was the parties and the premises.

I find that the rent, at least for some period of time, was to be $3500 and that it was to commence when Mr. Witting began operating the restaurant, but even that is not a term sufficiently certain as to be enforceable. If Mr. Witting had not begun to operate the Restaurant for six months, would the Defendants have been obligated to leave the Restaurant available for him and forego renting it to someone else until Mr. Witting chose to open the restaurant? I think not. Such a term is too vague and uncertain to be enforceable.

There was no agreement as to the commencement of payment for utilities, or the deposit, both of which in my view are essential terms. Thus, I find that the parties did not make an enforceable oral lease agreement, because they failed to reach agreement on most of the essential terms of an enforceable lease. [ 56 ] Any claims for consequential damages resulting from a breach of a lease obviously cannot be maintained by either party, because there was no enforceable lease capable of being breached. [ 57 ] However, that is not the end of the matter. Mr.

Witting made a number of changes to the restaurant because the parties expected he would open and operate a restaurant there. I must now address the competing claims arising from those changes. Claims for improvements and damage to the Restaurant (the “Restaurant Work’): [ 58 ] Mr. Witting was clearly of belief that the restaurant could not be operated as it was, since, he claimed, it was not compliant with various health inspection orders, the furnace did not work, the roof leaked, the restaurant was filthy and much of the restaurant equipment malfunctioning. Mr. Kim and Mr.

Witting both testified that they walked through the Restaurant together and that Mr. Witting pointed out a variety of deficiencies which must be corrected in order to operate the Restaurant. I note that the evidence was that Mr Kim’s English was limited and Mr Witting was hard of hearing, but they managed to communicate with a combination of words, hand gestures, and body language. It is clear from his evidnce that Mr Kim was aware of the work going on at the Restaurant and was very pleased by the improvement. [ 59 ] Mr.

Witting maintains that the Defendants would be responsible for the cost of putting the restaurant into useable condition, which would include functioning plumbing, heating and electrical infrastructure, a functional building envelope and the cost of ensuring compliance with health and fire safety requirements. Mr. Kim and Ms. Jee now maintain that the restaurant was in fully operable condition and everything worked. Thus, they claim that Mr.

Witting should pay for any improvements he did or hired others to do, since none of it was necessary. [ 60 ] Further, some of the “improvements” to the Restaurant included the installation (and subsequent removal) of a fire door, heat lamps and pellet stoves and the removal of the Defendants’ equipment in the kitchen. Mr. Witting did not repair all of the damage to the walls resulting from the removal of the pellet stoves nor the damage to the door jam by his removal of the fire door and the Defendants have made claims in that regard. Further, Mr.

Witting removed several pieces of the Defendants’ kitchen equipment and placed it outside. The Defendants have made claims for the value of that equipment. [ 61 ] A discussion of the competing claims regarding the improvements to the Restaurant by Mr. Witting and the claims of damage done to the restaurant advanced by the Defendants must begin with a consideration of the condition of the restaurant prior to the commencement of Mr. Witting’s work on it. Condition of the restaurant:

[ 62 ] Mr. Witting testified that he walked through the restaurant with Mr. Kim. Mr. Witting described the condition of the restaurant as “poor” and the condition of the kitchen as “shocking.” He testified that there were pests in the kitchen, no baseboard trim, dirty walls and chipped drywall, water damage, so much grease on the floors that the floor tiles were lifting in places, and “terrible” washrooms. He said there were barrels of used oil leaking onto the ground outside and piles of cardboard and old building material piled outside. There were small trees growing up against the large propane tanks outside.

He testified that he explained to Mr. Kim the Restaurant would require extensive repairs and that he and Mr. Kim discussed the work required. He says that Mr. Kim asked him who could do the repairs and Mr. Witting assured him that he could do the repairs himself. Mr. Witting testified that after he had the opportunity to check the restaurant facilities and equipment, he found much of it was not in proper working order. [ 63 ] Mr. Kim admitted that Mr. Witting pointed out the issues with the restaurant, although he was not sure if that happened at the first walk through.

He admitted there were barrels of old oil and cardboard and building materials outside. Regarding the inside, he said that he and Ms. Jee had cleaned it up although he admitted there were a few areas that were still “messy.” [ 64 ] Ms. Jee was not present when Mr. Kim and Mr. Witting did the walk through, but she insisted that the Restaurant had been all cleaned up when she closed it in mid-September. She testified that she hired someone to clean it and that she had inspected it, although she admitted she did not inspect it thoroughly enough to notice all the rotting food left in the walk in cooler. [ 65 ] Ms.

Jee insists that the kitchen equipment was in working order, although she admits there were problems with some of the equipment. With respect to other equipment (such as the furnace, the oven and an extra ice machine), she testified she had never used them but assumed that they worked – so she would have the Court make the same assumption. [ 66 ] Ms.

Jee admits that the health inspector had ordered the Defendants to clean or replace the walls and install ‘siding’ in the kitchen in certain areas, as well as install grease traps by Sept 1, 2015 and that the Defendants had not complied with that order; nevertheless, she argues that the restaurant was in perfect working order, and the Defendants should not be required to pay for the installation of the grease traps or any of the other work Mr. Witting performed or arranged to have done in order to comply with the health inspectors order.

With respect to other items, such as the roof leak or substandard wiring, she denies that there were any such problems. Law [ 67 ] In this case, the parties did not have an express agreement with respect to the lease of the Restaurant, nor an express agreement with respect to which party should pay for the work done at the Restaurant. The situation is not dissimilar to what occurred regarding the Parking Area work. I find that the Defendants, and specifically Mr. Kim, were quite happy that Mr.

Witting performed work to put the restaurant in compliance with health and safety requirements, and the improvements to the kitchen and building in general. Mr. Witting informed him of the work required, both before and while it was going on, and Mr. Kim approved of everything – at the time. [ 68 ] Certain work, such as the installation of the grease traps and the electrical work, was arranged by Mr. Witting in the belief that the Defendant had authorized it and would pay for it. Some work, such as the installation of baseboards, new siding on the kitchen walls and tiles on the floors, was done by Mr.

Witting on the basis that the Defendants had been ordered to do it by health and safety authorities and he was simply full filling their pre-existing obligation. Other work was undertaken by Mr. Witting because repairs or improvements were required in order to have the kitchen and its equipment function safely and properly. Some work was done for Mr.

Witting to operate his restaurant and make it pleasant and comfortable for his guests. [ 69 ] However, the Defendants now take no responsibility for the performance of any of the work that was done, claiming that any improvements were tenant’s improvements for which Mr.

Witting is solely responsible. [ 70 ] Mr Witting argues that the law of unjust enrichment applies to the Restaurant Work just as it applied to the Parking area work – that is, he argues that his work conferred a benefit on the Defendant, for which he has not been compensated, and there is no reason in law for the Defendant to retain that benefit without paying for it. [ 71 ] As I mentioned earlier in these reasons, the law will not permit the party receiving the benefit of the work (assuming it is a benefit) to be enriched at the expense of the party which performed it to their detriment.

Absent a juridical reason for it (such as an express agreement to perform the work in return for, say, an option to purchase the building or reduced rent on an extended lease term), such an enrichment would be unjust. In this case, although Mr Witting may have performed this work in the expectation that he would have a long term lease (or an option to purchase) of the Restaurant, there was no valid lease arrived at by the parties. Therefore it would be unjust for the Defendants to retain the benefit conferred on them by Mr Witting’s efforts.

I find there was no juridical reason for the Defendant to retain the benefit of Mr Witting’s work without paying for it. [ 72 ] The discussion must therefore turn to a determination of the work performed, the reason it was performed and whether it conferred a benefit on the Defendants. Mr. Witting provided an itemized account of the work performed and expenses incurred throughout Exhibit 1. Unfortunately, the accounting provided to the Court by Mr Witting includes a charge for GST on the total of expenses and labour.

I received no evidence nor submissions to support the appropriateness of including a claim for GST when the remedy sought by the court is damages assessed on a quantum meruit basis. I will not be including the claims for GST in my determination of the value of the work. Work required by the Health inspector: [ 73 ] Mr. Witting was given a copy of the health inspectors report by the Defendants, dated June 11, 2015.

It stated that several items must be completed within one month; among these items were the following: “new siding near oven, walls to be cleaned or replaced, clean area behind deep fryer…. install grease traps in the kitchen by Sept 1. None of these orders had been complied with at the time Mr. Kim and Mr. Witting walked through the restaurant at the end of September. All parties knew that unless that orders were complied with, the Restaurant could not legally operate. It is equally obvious that when the Defendants were operating the Restaurant in early September, they did so in violation of that health order.

[ 74 ] Mr. Witting testified that the walls and floors in the restaurant were covered in grease when he walked through the restaurant. He said there was so much grease on the floors in the kitchen that the floor tiles were lifting and had to be replaced. The photos taken by Mr. Witting entirely support his evidence. Ms. Jee testified that the floors were completely clean, and that she had already cleaned behind the deep fryer as required, but acknowledges that the photos taken by Mr. Witting show “really awful conditions.” Ms.

Jee argues that I should find the photos do not represent the actual state of the Restaurant, but I am satisfied that they do. I find that the restaurant floors and walls were as greasy as Mr. Witting described. [ 75 ] Mr. Witting removed the tiles, de-greased the area and replaced the tiles with tiles from a supply of them stored in the restaurant. (The Defendants now seek compensation from Mr. Witting for the value of the tiles that he took from inventory to replace the ones he removed from the kitchen floor.) He installed flashing where the floor met the exhaust hood. [ 76 ] Mr.

Witting cleaned all the walls so that the new fire resistant panels on the walls would adhere, installed baseboard trim throughout the kitchen and arranged for the installation of the grease traps. Mr. Witting testified that he discussed all of this work with Mr. Kim and Ms. Jee before starting. Ms. Jee testified that Mr. Witting must have misunderstood the Health inspector’s order, claiming that baseboards were only required near the oven, not the whole kitchen. Ms.

Tam, the health inspector, confirmed that her order requiring “siding near the oven” meant “baseboards”, but testified that baseboards would be required in any part of the kitchen that did not have baseboards, although she could not remember what part of the kitchen was missing baseboards. She said that if, on any future inspection, she discovered any part of the kitchen did not have baseboards, she would order them to be installed. I find that Mr.

Witting installed baseboards and wall coverings where they would have been required by the health inspector in any event. [ 77 ] I infer from the fact that the Defendants gave Mr. Witting a copy of the Health order that Defendants knew the work had to be done in order to have a functioning restaurant and that they expected Mr. Witting to do the work or arrange for it to be done. [ 78 ] I find that the cleaning of the floors and walls and replacement of the floor tiles were necessary in order to install the baseboards and wall replacement panels.

The wall replacement panels were consistent with the requirements of the Health inspectors order to “clean or replace walls” and resulted in a clean, sanitary and fire resistant interior for the kitchen which was a substantial improvement to the kitchen. [ 79 ] Mr. Witting hired Mayfair Plumbing to install the grease traps required by the health inspector. The grease traps were installed, and the Restaurant is now in compliance with health regulations in that regard.

I find all of this work was required to comply with the order of the health inspector, and constituted a substantial and permanent improvement to the Defendants’ Restaurant. [ 80 ] The Defendants say Mr. Witting should shoulder the expense of all the work done and pay the Mayfair Plumbing invoice for $7,258.11 for the installation of the grease traps. One basis for the position advanced by the Defendants is that the health inspector’s order was issued to the Defendants, not Mr. Witting; so, the argument goes, Mr.

Witting’s compliance with it was entirely voluntary and therefore, he should pay for this improvement to the Defendant’s building. [ 81 ] I find that argument patently absurd. The order was issued to Mr. Kim as the owner of the Restaurant. That Restaurant, regardless of who owned or managed or leased it would have to be in compliance with health regulations or it could not operate. The Defendants knew perfectly well, when they offered to rent the Restaurant to Mr.

Witting, that they did not have a restaurant that could legally function at all (despite their assertions to the contrary) because it could not be operated unless the health orders were complied with. The work required to comply with the orders was not cosmetic; it required a permanent alteration to the building owned by the Defendants. [ 82 ] I find that all the work Mr. Witting performed, or arranged, in order to comply with the order of the Health inspector, and the Fire inspector, was work that was necessary for the Restaurant to be operated, whether by Mr. Witting, the Defendants, or anyone else.

Now that the work has been done the Defendants own a restaurant that is legally permitted to operate, because it is now in compliance with health and safety regulations, something they did not possess before. The Defendants have clearly been enriched by the value of this work. Correspondingly, Mr. Witting has suffered a deprivation equivalent to the value of his own labour and expenses. [ 83 ] Mr. Witting itemized the labour and materials expended for this work at Tab 1 (Kitchen Floor) ($2,793.80), Tab 2 (Kitchen walls) ($6,493.56) and Tab 5 (Kitchen walls, Floor and Server line) ($2,547.39) of Exhibit 1.

I find that Mr. Witting expended the labour and materials as provided in those tabs. I find the value of the labour and materials is $11,834.75 and Mr. Witting is entitled to recover that amount from the Corporate Defendant. Fire and safety Requirements: [ 84 ] Mr. Witting testified that in November, when he applied for a permit to install the pellet stoves in the restaurant, the Valemount Fire Safety Officer also gave him a report addressed to the Defendants dated April 9, 2015, requiring certain work to be done. Some of this work was still not completed when Mr. Witting began work at the Restaurant.

The work still to be done, according to Mr. Witting, included “missing drywall to be repaired… North east emergency exit needs repair and bolts removed, and Door closer required at main entrance”. In order to comply with this order, Mr. Witting installed fire rated drywall in an area behind the cooler that was missing drywall, installed door closers and a new steel fire door. [ 85 ] With respect to the drywall installation, the Defendants argue that Mr. Witting misunderstood the Fire inspector’s order with respect to the drywall installation and maintain he did not need to replace the drywall behind the cooler.

It seems to me unlikely that a fire inspector would approve of any area left bare of drywall in a kitchen. I find that the installation of drywall in that area by Mr. Witting was in compliance with the Fire Inspector’s order. In any event, I find the Defendants now have a drywalled wall where they had only bare studs before. I find that the Defendants have received a benefit from that work. Mr. Witting itemized the work and material at Tab 3. I find the value of the work and materials to install the drywall was $166.99 and Mr. Witting is entitled to recover that amount from the Corporate Defendant. [ 86 ] Mr.

Witting purchased and installed door closers at the main entrance. The Defendants have received the benefit of those door closers and the labour to install them. The cost of the door closers was included in the materials expenses in Tab 1 and Mr. Witting did

not itemize the work to install the door closers separately. I find the labour spent to install them was also included in Tab 1. [ 87 ] Mr. Witting also purchased and installed a new fire door with a push bar, after discussing it with Mr. Kim. Although Ms. Jee pointed out that the Fire inspectors order did not specifically require the installation of a new door, but rather only required the removal of bolts for the old one, I find Mr. Kim approved the installation of a new fire door. However, when he was evicted from the restaurant, Mr.

Witting removed the fire door and took it with him when he left, replacing it with the original door. Mr. Witting admits a portion of the sill split when he replaced the new door with the original door, but maintains that the original door is in its original condition. Because Mr. Witting removed the new fire door and took it with him, I find he is not entitled to recover its cost. Since the Fire door is now in no better condition than it was before (aside from the removal of the bolts), I find that Mr. Witting’s labour did not confer a benefit on the Defendants.

I therefore dismiss his claim for Fire Door Replacement under Tab 25. Exhaust fan base and roof leak: [ 88 ] Mr. Witting testified there was a leak from the roof through the ceiling that collected in the hood exhaust fan and dropped water into the deep fryer. He said he discussed the leak with Mr. Kim who confirmed that people had been up on the roof trying to repair that leak on a number of occasions. (Ms. Jee and Mr. Kim denied that there was any roof leak, but Mr.

Woolridge, who worked as a cook for the Defendants during the summer of 2015 testified that it leaked whenever it rained.) I find there was in fact a roof leak. [ 89 ] Mr. Witting went up on the roof and found cracks in the base for the exhaust fan. He testified that it was apparent to him that there had been previous efforts to do repairs to the roof in that area. He removed the exhaust fan base, repaired it, re installed it and sealed the base it sat on, on the roof. There was no problem with any leaks after that.

The Defendants now have a restaurant which does not have a leaking roof; moreover, they do not have a hazard in their kitchen resulting from water dropping off the hood fan into the deep fryer. I find the roof and exhaust fan base repair was a lasting benefit to the Defendants. [ 90 ] Mr. Witting itemized the materials he purchased to do the repair and his labour of 7 hours at Tab 20 of Exhibit 1. The total value of that work is $391.66 and Mr. Witting is entitled to recover that amount from the Corporate Defendant. Electrical repairs for the Toaster, Steam Table and plugs: [ 91 ] Mr.

Witting testified that the steam table had no shut off and the wiring to the steam table and toaster was not to code. He testified that the wiring was simple house wiring which must be protected behind walls, but it was exposed, the junction box was exposed and the outlets were not attached to the wall. Mr. Witting testified that the wiring was covered in grease and could easily have been nicked by kitchen or cleaning staff, constituting a serious hazard. Mr. Witting replaced all the house wire with protected conduit, installed proper outlets and secured them to the wall. The photographs provided by Mr.

Witting substantiate the pre-existing condition of the wiring and the improvement after his work was complete. [ 92 ] Mr. Witting also testified that the steam table had no shut off and was hard wired directly into the electrical system. It also had the wrong heating element and no thermostat. Thus, it would boil over and could only be shut off by flipping the breaker in the electrical panel. Ms. Jee admitted that the steam table had no shut off or temp control and she needed Mr. Kim to shut off the breaker in the electrical room in order to turn it off. Mr.

Witting purchased a thermostat and installed it so that the steam table functioned properly, installed the correct element in it, and installed a switch and outlet so the steam table could be shut off and unplugged. [ 93 ] The Defendants now have a working steam table that maintains temperature and can be easily operated, as well as safe wiring and proper electrical switches and outlets, something they certainly didn’t have before. I find this work was clearly of lasting benefit to the Defendants. Mr.

Witting testified he paid $260 for the thermostat, $180 for the new element, but he did not include invoices for those items with the itemization of this work found at Tab 8 of Exhibit 1. He itemised the hours worked at 24 hours of labour. I find the value of this work was $1,659.66, which is $1,219.66 as shown in Tab 8 plus the value of the thermostat and element. Mr. Witting is entitled to recover the amount of $1,659.66 from the Corporate Defendant. Public washroom work: [ 94 ] Mr.

Witting testified that the toilets in the public washrooms were not anchored to the floor and required the installation of flanges in order to be secured. He purchased a new flange to bolt the toilet to the floor, new hinges for a toilet, and other items required to repair the toilets. He installed new trim in the stalls and repaired the toilet paper holders. I find these repairs were of lasting benefit to the Defendants. [ 95 ] These items and his labour were itemized at Tab 18 of exhibit 1. Aside from the candy included on one receipt, these purchases appear to be in order.

After deducting the candy, I find the materials purchased were $58.13, plus additional materials such as caulking and anchors supplied by Mr. Witting valued at $25, plus 5 hours labour which I find to be reasonable for the amount of work done. I find the total value of the work performed is $308.13 and Mr. Witting is entitled to recover that amount from the Corporate Defendant. Carpet Cleaning: [ 96 ] Mr. Witting testified that the carpets in the restaurant public area were grease covered and filthy and he paid labourers to scrub them by hand as well as hiring professional carpet cleaners. Ms.

Jee says the carpets were old, but not dirty or greasy. I accept that the carpets were both old, dirty and greasy. However, I find that it is a matter of common sense that carpet cleaning must be a part of the regular maintenance of any restaurant. Accordingly, although I accept that Mr. Witting hired people to scrub these carpets, it is the sort of job that must be done on a regular basis and does not confer a lasting benefit on any building owner such that the owner is enriched thereby. I dismiss Mr. Witting’s claim for the value of the carpet cleaning. Kitchen hood cleaning and inspection: [ 97 ] Mr.

Witting testified that the cleaning of the exhaust fan system must be done regularly and the system must be professionally cleaned and inspected every 6 months in a restaurant kitchen. Mr. Witting itemized 21 hours he spent cleaning the exhaust fan in the

areas he could reach. He testified that he called Vic’s fire and safety to do the professional cleaning and inspection just prior to opening the restaurant. The system was inspected and approved on November 30 2015. Mr. Witting’s labour, materials and the inspection cost amounted to $1,373.19. Again, although I am satisfied this work was performed and was necessary in order to operate the restaurant at the time, I find that it is also work that must be repeated regularly and confers no lasting benefit on the building owner.

It is simply something that must be done regularly as part of the operation of a restaurant. I dismiss Mr. Witting’s claim for the Kitchen hood cleaning and inspection. Dimmer Switches (Tab 6): [ 98 ] Mr. Witting testified that the dimmer switches for the restaurant lighting didn’t work with the LED light bulbs that were in place in the Restaurant. He said they were too old and not compatible with the LED lights that were in place. He replaced the dimmer switches with new ones that were compatible with the LED lights fixtures in place. Ms.

Jee suggested to him that this work was unnecessary, as the lights switches were still capable of turning the lights on and off, even if they couldn’t function properly as dimmer switches. I find that the lighting in the restaurant was clearly designed to be dimmed and that the dimmer switches had to be switched out in order for that function to work. I find it was reasonable to install functional dimmer switches and the price was reasonable. I find that the Defendants now have functioning dimmer switches in their restaurant which they did not have before Mr.

Witting spent the time and money to buy new switches and install them. I find the Defendants have received a lasting improvement to their building by Mr. Witting’s work. I find the value of that work was as itemized at tab 6 of Exhibit 1, in the amount of $406.86 and Mr. Witting is entitled to recover that amount from the Corporate Defendant. Lease agreement (Tab 4 ): [ 99 ] Mr. Witting seeks compensation for the expense he incurred in having a lease agreement drafted which was not accepted by the Defendants.

While all parties agreed that it is normally the obligation of the Landlord to prepare a lease, in this case Mr Witting’s draft lease contained terms which were entirely new to the Defendants and as such constituted nothing more than an offer. The Defendants were under no obligation to agree to that offer, much less pay for the drafting of the offer. I am not persuaded that there is any basis for this claim. It is dismissed. Heat lamp area and shelf (Tab 19): [ 100 ] Mr. Witting testified that he repaired the warming shelf and replaced the heat lamps in that area.

He testified that the heat lamps did not work and the existing shelf was poorly supported by chains to keep it from pulling away from the wall, and covered in tin foil which was filthy and could not be washed. Ms. Jee testified she hadn’t noticed anything about the heat lamps because she operated the restaurant in summer, but admitted her husband told her only one half of the warming area lamps worked. [ 101 ] Mr. Witting removed the shelf and non-functioning heat lamps, installed a new properly supported shelf, new electrical wiring and drywall, finished the area, and then purchased and installed new heat lamps.

When he left the Restaurant, he disconnected the new heat lamps and took them with him. Mr. Witting seeks compensation for the labour (32 hours totalling $1,440) and materials for the shelf construction and finishing ($227.34) as well as the value of the heat lamps ($467.02). [ 102 ] It is plain that Mr. Witting cannot claim compensation for the purchase of an item he retained. His claim for the heat lamps ($467.02) is dismissed. The remainder of the work and materials ($1,667.34) constitutes an improvement over the original construction and is of lasting benefit to the Defendants. Mr.

Witting is entitled to recover $1,667.34 from the Corporate Defendant. Removal of damaged sign (Tab 9): [ 103 ] Mr. Witting testified that the sign at the front of the restaurant was damaged (presumably from vehicles running into it) and unsightly, so he cut the legs off and removed it. He testified that the legs could be straightened and re welded into place should someone wish to do that. He claims the value of the labour to remove it. In my view, the removal of the sign was an aesthetic choice made by Mr. Witting and the removal of the sign was of no benefit to the Defendants.

I dismiss his claim for the removal of the sign. Cleanup front delivery area (Tab 21): [ 104 ] Mr. Witting testified that the front delivery area had piles of old construction waste, old cardboard and pails of old cooking oil sitting outside, leftover from when the Defendants operated the restaurant. Mr. Kim agreed that the garbage was there, but Ms. Jee testified that the cooking oil was sitting there because it had to be picked up by a business that picked up used cooking oil.

I find that the outside delivery area was an unsightly and unsanitary mess left there by the Defendants and they should be responsible for its clean up. If they were prepared to pay another business to dispose of the cooking oil they should have no problem with paying Mr. Witting to do so. Mr. Witting cleaned up this area and took the garbage to the dump. I find the clean-up of the delivery area conferred a benefit on the Defendants. Mr. Witting is entitled to recover $360 from the Corporate Defendant. Cleanup inside delivery area (Tab 22): [ 105 ] Mr.

Witting testified that the inside delivery area was choked with decommissioned restaurant equipment that was no longer in use, including an old upright deep freeze, ice machine, and water cooler. Mr. Witting testified he spoke to Mr. Kim about this equipment. He said Mr. Kim told him to throw them out, so he used his truck to take them to the dump and paid the tipping fees required. [ 106 ] Mr. Kim acknowledges talking with Mr. Witting about that equipment and admits he told Mr.

Witting that it was “old.” He said he had never used it and did not know whether it worked, but said he believed it worked, but was just “extra”. He now says that he never told Mr. Witting to take that equipment to the dump. [ 107 ] Ms. Jee testified that the standing ‘fridge’ did not work when the Defendants took over the restaurant and that they stored the standing fridge in the delivery area and filled it with garbage. I find the upright freezer referred to by Mr. Witting and the standing fridge referred to by Ms. Jee are one and the same object. Ms. Jee cross examined Mr.

Witting extensively over several days, but never

suggested to him that he improperly took functioning and useful equipment to the dump, nor suggested that Mr. Kim did not tell him to take the old equipment to the dump. I also note that the Defendant’s claim is only for the replacement of the ice machine, not the standing fridge or deep freezer and water cooler. I infer, therefore, that the removal and dumping of those pieces of equipment was done with the knowledge, authorization and direction of Mr. Kim, contrary to the evidence of Mr. Kim. I there for grant Mr.

Witting’s claim for the removal and dump fees in the amount of $360.00 Outdoor Light purchase and mounting (Tab 24): [ 108 ] The parties agree that Mr. Kim asked Mr. Witting to purchase an outdoor light for the Parking area. Mr. Witting purchased the light in Edmonton at a price of $1,049.94 including tax on October 14, 2015. Mr. Kim agreed that he worked with Mr. Witting and another person to install it outside. He said he was not able to pay Mr. Witting at the time that Mr. Witting gave him the invoice for the light. Mr. Kim testified that he thought Mr.

Witting should pay for the light because of the damage that had occurred to the electrical wiring during the excavation, but on the other hand he also complained that Mr. Witting paid too much for the light, because he thought it should have cost no more than $500. [ 109 ] Ms. Jee testified that she believed the outdoor light cost too much, which is why the Defendants disputed paying for it. It was never suggested to Mr. Witting at the time that he should pay for the outdoor light because of the damage to the electrical wire during the excavation. [ 110 ] I find that Mr.

Witting purchased the outdoor light at the request of Mr. Kim and that ordinarily Mr. Kim would be obliged to pay for it. However, Mr. Witting took the light with him when he left. Mr. Kim has not received the benefit of that purchase. As a result, Mr. Witting cannot now make a claim for the light from Mr. Kim. Mr. Witting’s claim for the light fixture is dismissed. The Defendants Claims Rent for November, December and January: November rent: [ 111 ] I have already found that there was no agreement between the parties that Mr. Witting would pay rent for November. Mr. Kim agreed that he and Mr. Witting agreed Mr.

Witting would not pay rent until he opened the restaurant, which occurred in December. The behaviour of the parties at the time is consistent with such an agreement, as no demand for rent was made in November by the Defendants. The Claim for November rent and GST is dismissed. December GST: [ 112 ] Mr. Witting paid December’s rent (albeit late) but he did not pay GST on that rent. He acknowledged in his evidence that he would owe GST on the rent. The Defendant’s claim for GST for December, in the amount of $175 is allowed. January Rent and GST: [ 113 ] Mr.

Witting was evicted by the Defendants on December 31, 2015. He began moving out and cleaning the restaurant immediately and returned the keys on January 3 rd . The Defendants claim that he should pay rent for the entirety of January. Mr. Witting argues that he should not have to pay January rent, as he was evicted by the Defendants; alternatively, he argues that if any rent is owing for January, it should be prorated for only the 3 days before he handed back the keys rather than the entire month. [ 114 ] I have already found that the parties did not have an oral lease of the restaurant.

At best they had an agreement that Mr. Witting pay $3500/month while he operated the Restaurant. The Defendants gave Mr. Witting an eviction notice on December 31, 2019. Mr. Witting was prevented by the eviction from operating the Restaurant after December 31. I find he did his best to comply with the notice and began to pack up his restaurant equipment and possessions. He testified that he spent from January 1-3 cleaning the restaurant and there is certainly no claim from the Defendants that he left the restaurant in anything other than a clean state. I find it is not unreasonable that Mr.

Witting would require time to comply with the eviction notice given by the Defendants. [ 115 ] I accept that Mr. Witting did not give the Defendants access to the Restaurant until the evening of January 3, 2016. He retained possession and control of the Restaurant until then. That said, I find that it is not reasonable for the Defendants to demand an entire month’s rent from Mr. Witting simply because they happened to demand possession from him on the very last day of the month, knowing it would be practically impossible for Mr.

Witting to give them vacant possession within the few hours remaining before the start of the next month. [ 116 ] In these circumstances, I find that it is proper that Mr. Witting will pay the Defendants for January 1-3 on a pro-rated basis. I grant the Defendant’s claim for January rent in the amount of $339 +16.95 (GST) for a total of $355.95 Claims for Utilities: Telus [ 117 ] The Defendants claim Mr. Witting should be responsible for paying the Telus accounts from October 1, 2015, through to a long distance call on the January bill. Mr.

Witting agrees to be responsible for the Telus account for November and December, but does not accept responsibility for the October bill. I have already found that there was no rental of the restaurant by Mr. Witting in October 2015. I find he is under no obligation to pay the Defendant’s Telus account for that month. The claim for October’s Telus account is dismissed. [ 118 ] Mr. Witting agrees to be responsible for the November and December Telus bills. Therefore the Defendant’s claim in the amount of $173.60 for November is allowed.

[ 119 ] The Defendant’s December bill was $177.07 for the month. Mr. Witting had transferred the service into his own name in mid- December. The Defendants received a net rebate of $89.38 on their January Statement which was broken down as a rebate of $159.78 less long distance charges incurred on December 11 in the amount of $35.20. Thus, Mr. Witting is responsible for ($177.07-159.78=) $17.29, plus $35.20 (long distance) for a total of $52.49 for the month of December. [ 120 ] I grant the Defendant’s claim in the amount of $226.09 for the amounts remaining on the Telus account.

Canwest [ 121 ] The Defendants claim that Mr. Witting should be responsible for the payment of the Canwest propane invoices for October and November 2015. It is clear on the evidence that the propane tank for the restaurant was empty when Mr. Witting began work there. It is also clear on the evidence that the only heat available in the Restaurant was derived from the furnace, which operated on propane. I take judicial notice that in the autumn in Northern British Columbia temperatures often dip below freezing and that very cold below freezing temperatures are common in November.

I find that as a matter of common sense, the Defendants could not have left the restaurant without heat in October and November without risking substantial freezing damage to the restaurant. I find, therefore, that the Defendants would have been required to fill the propane tanks to provide sufficient heat to the Restaurant to prevent freezing whether Mr. Witting was there or not. [ 122 ] On the other hand, the work performed by Mr.

Witting in the restaurant could not have been performed without heat and hot water, both of which were not possible without the availability of propane. [ 123 ] I find that the filling of the propane tanks benefited both parties. I find it is proper to split responsibility for the filling of the tanks for the Restaurant. I therefore find Mr. Witting will be responsible for the propane account in November and the Defendants will be responsible for the propane invoice for October. The Defendants claim for propane is allowed in the amount of $671.11 Mayfair Plumbing Grease traps [ 124 ] Mr.

Witting hired Mayfair gas and Plumbing Inc. (“Mayfair”) to install the grease traps required by the health inspector. The grease traps were installed at a cost of $7,258.11 on November 26, 2015. The Defendants now claim that the installation of the grease traps was done without their knowledge or permission, and Mr. Witting should therefore pay for the work that was done. They also argue that since the Order of the health inspector was made to the Defendants, not Mr.

Witting, his compliance with it was not in accordance with an order issued to him and therefore the Defendants are not responsible for the cost of compliance. I have addressed both arguments earlier in these reasons and have found them unpersuasive. [ 125 ] The uncontroverted facts are that on June 11, 2015, the Health inspector ordered the Defendants to install grease traps in the Restaurant by September 1, 2015 – well bef

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