Ma v. The Board of Education of School District No. 39, 2022 BCPC 269

Citation: Ma v. The Board of Education of School District No. 39 2022 BCPC 269 Date: 20221125 File No: C-1964770 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: PO HUA MA CLAIMANT AND: THE BOARD OF EDUCATION OF SCHOOL DISTRICT NO. 39 (VANCOUVER) AND VANCOUVER SCHOOL BOARD DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. RIDEOUT Appearing on his own behalf: P. Ma Counsel for the Defendant: M.L. MacDonald Place of Hearing: Place of Hearing: Dates of Hearing: March 29, 30, May 26, December 10, 2021, September 8 and 9, 2022 Date of Judgment: November 25, 2022

INDEX I. INTRODUCTION .. 2 II. HISTORY OF THE LITIGATION .. 2 III. BACKGROUND .. 5 IV. POSITION OF THE PARTIES .. 12 V. ANALYSIS AND FINDINGS .. 14 VI. CONCLUSION .. 19 I. INTRODUCTION [ 1 ] This is a breach of contract case. It involves the termination of a Vending Placement Agreement (the “contract”) entered into by the Claimant (“Po Ma Vending”) and the Defendant (“The Board of Education of School District No. 39”).

The Defendant terminated the contract in the summer of 2017 asserting that the Claimant, through his individual and cumulative conduct, fundamentally breached the contract. [ 2 ] On January 12, 2015, the parties signed a contract for the placement of vending machines at Killarney Secondary School (“Killarney”). The term of the contract was to be for five years commencing February 1, 2015 and ending January 31, 2020: Exh. A, Tab 1. [ 3 ] On August 20, 2015, the parties signed a contract for the placement of vending machines at Vancouver Technical Secondary School (“Van Tech”).

The term of the contract was to be for five years commencing on September 1, 2015 and ending September 1, 2020: ibid , Tab 2. [ 4 ] It is the conduct of the Claimant, in relation to the Van Tech contract, that is at the core of this case. [ 5 ] The Claimant testified that he sold his vending machine business, including all inventory, vending machines and good will, on June 18, 2019 for $308,600: Exh. 1, p. 21. II.

HISTORY OF THE LITIGATION [ 6 ] The Claimant sought damages of $35,000 for loss of business commissions relating to his vending machine business after his contract with Van Tech was terminated. [ 7 ] Two Settlement Conferences were scheduled. The second Settlement Conference took place on September 16, 2020 before Judge Phillips. [ 8 ] The Second Settlement Conference record notes the following comment by the court: “The claimant has been cautioned by the Honourable Judge Phillips. The claimant may be required to disclose their tax returns to the defendant in order to prove losses of business claim.

Failure to disclose the tax return to the other party may draw adverse inference from the court at trial”: Exh. A, Tab 59. [ 9 ] The trial commenced on March 29, 2021. The court allowed the Claimant’s daughter, Jenny Ma, to assist him at the counsel table. The Defendant has been represented by legal counsel throughout this case. [ 10 ] The Claimant was the only witness to testify in support of his case. His direct examination and cross-examination concluded on March 30, 2021. [ 11 ] The Defendant commenced its case on March 30, 2021. The first witness called by the Defendant was Ms. Vey-Chilton.

She was the principal at Van Tech when the contract with the Claimant was terminated. [ 12 ] Jenny Ma conducted the cross-examination of Ms. Vey-Chilton. During the course of her cross-examination, counsel for the Defendant raised various objections.

[ 13 ] At one point in the proceedings, counsel for the Defendant was in the process of rising to his feet and the court intervened through a hand gesture that counsel should remain seated. This was done as a courtesy to Ms. Ma so she could continue the cross- examination without interruption. [ 14 ] Unfortunately, Ms. Ma construed the gesture of the court to be a “prompting” of counsel for the Defendant. Ms. Ma became extremely strident with the court and her language inflammatory requiring the court to stand down so Ms.

Ma could compose herself. [ 15 ] After the court stood down proceedings continued to be recorded and the following exchange took place between Ms. Ma and the Claimant: Jenny Ma: I’m not a lawyer and I can tell that’s not appropriate. To be prompting the defendants how to respond, that was outright mid - - and you’ve turned off the - - UNIDENTIFIED SPEAKER: Yes. JENNY MA: Thank you. We’ll - - we’ll deal with this another time. Very unfair and I’ve - - and all that talk about how he was perfect and how he’s here to protect the system. I’d appreciate if this was on record. Wow. Judge Rideout. Did you see that? Yeah.

UNIDENTIFIED SPEAKER: Yeah. JENNY MA: Yeah. Very unfair of you. Thank you. I saw him twitch. I saw him go like this. Wow. I’m not even a lawyer and I know that’s wrong. Fucking hell. Right? You smell a weasel? PO HUA MA: Hmm. JENNY MA: I hope this is recorded but it’s not. They turned it off given that it favours them. Holy cow, this system. Speaking to lawyers. I’m speaking to a lawyer. I’ll speak to a fucking lawyer myself. That’s infuriating. Holy cow. What time is it?: Transcript, March 30, 2021, p. 91, ll. 20 – 44. [ 16 ] Though the clerk told the Claimant and Ms.

Ma that the recess was brief, they failed to return to the courtroom. Prior to adjourning proceedings, and upon application by the Defendant, the Claimant was ordered to pay into court $750 pursuant to Rule 17(3) of the Small Claims Rules before the Claimant could proceed with his case. The $750 penalty was paid into court on April 9, 2021. [ 17 ] On May 26, 2021, the parties appeared before the court. The Claimant was advised that Ms. Ma was prohibited from participating in the litigation. [ 18 ] Ms.

Ma understood the direction and stated, in part, that her father “definitely needs a lawyer to help represent him at the present for court”: Transcript, May 26, 2021, p. 2, ll. 31-33. [ 19 ] Though the court suggested that the Claimant would benefit from a court- certified interpreter Ms. Ma advised the court that, in her opinion, her father was “fully capable of speaking and comprehending” the proceedings: ibid , ll. 37-42. [ 20 ] Two further dates were fixed in the spring of 2022. Due to a conflict in witness scheduling the Defendant applied for an adjournment on December 10, 2021.

The adjournment was opposed by the Claimant. The adjournment was granted with a direction that the Defendant pay into court $350 as a penalty. [ 21 ] The Defendant paid into court the $350 penalty on December 17, 2021. The case was re-set to continue on September 8, 2022 and concluded on September 9, 2022. At the time of the continuation the Claimant was not represented by counsel and nor did he secure the services of a court-certified interpreter. III.

BACKGROUND [ 22 ] In the contract with Van Tech the Claimant acknowledged in his testimony that the contract requires that the Vending Operator shall be responsible for placing healthy products, such as milk, water, juice, etc., in compliance with appropriate government beverage vending guidelines for secondary schools contained in the Vancouver Board of Education “Healthy Food Guidelines” (the “guidelines”): Exh. A, Tab 2. [ 23 ] He acknowledged receiving a copy of the contract, including a cover letter from Ms. Vey-Chilton, then Principal of Van Tech, dated November 2, 2016.

In the cover letter, she reminded the Claimant of his responsibility to be compliant with the guidelines. It was brought to his attention that there were a number of items in the vending machines that did not meet the guideline standards and if he failed to remove the items on or before December 16, 2016 that Van Tech would consider the contract null and void: ibid . [ 24 ] Ms.

Vey-Chilton sent a further letter to the Claimant dated February 2, 2017 advising the Claimant that inventory in the vending machines was still not in compliance and the machines will be unplugged at the end of the week: ibid , Tab 3. [ 25 ] On February 7, 2017, Michele Kelly, Manager of Purchasing Services with the Defendant, sent a letter to the Claimant noting in part: “The requirement that the vending machines in VSB schools be stocked only with foods that meet the Health Food Guidelines is a fundamental terms of our agreement with PoMa Vending.

If you are unable or unwilling to comply with this term, we request that you immediately and at your own expense make arrangements to remove your vending machines from all VSB schools and facilities. Otherwise, please confirm to us in writing to us by no later than February 17, 2017 that you will comply with your obligations….”: ibid,

Tab 5. [ 26 ] The Claimant responded in correspondence dated February 16, 2017 that he would “absolutely” comply with the guidelines: ibid , Tab 6. [ 27 ] On February 28, 2017 Ms. Vey-Chilton, the Claimant, accompanied by a cousin of his, and an Administrative Assistant for Van Tech, held a meeting to discuss the contract.

At that meeting it was agreed that: • The vending machines could only be stocked with products listed in his Sell Most (at least 50%) or Sell Sometimes from the Healthy Food Guidelines; • Food and drink only; • Inventory will be reviewed weekly; and • By the end of Spring break, broken machines must be repaired and operational or removed from the school: ibid , Tab 12. [ 28 ] The Claimant testified that he was aware that compliance with the guidelines was important and that he was warned on numerous occasions about the consequences of noncompliance with the guidelines. [ 29 ] The Claimant testified that he was in compliance with the guidelines and there was only one occasion on February 1, 2017 when he was not in compliance as he had included an instant noodle pack in a vending machine.

Instant noodles are not in compliance with the guidelines. He denies there were any other breaches of the guidelines. [ 30 ] Ms. Vey-Chiton testified that the Claimant consistently breached the guidelines. It was documented in the inventory records kept by the Defendant that the vending machines did not contain at least 50% “sell most” products and that they were stocked with “do not sell” food products, expired food products and toys. [ 31 ] Ms. Vey-Chilton testified that she spoke to the Claimant on a number of occasions through 2016 to discuss inventory and the working operation of his vending machines.

She was under the impression that the Claimant understood the need to follow the guidelines and to ensure the vending machines were in good working order. [ 32 ] She testified that despite these discussions and despite the meeting with the Defendant on February 20, 2017 at Van Tech, the Claimant did not repair or remove the broken vending machines. [ 33 ] Ms. Vey-Chilton and Mr. Paul Godfrey, then the Vice Principal of Van Tech, both testified that at the end of the regular school term in June of 2017 that a Summer School Program is offered at Van Tech.

This program is completely independent to and is administered separately from the regular school program offered by the Defendant. [ 34 ] Mr. Godfrey and Mr. Dale Ambrose, then the Principal of the Summer School Program in 2017, testified that there is a small school food retail shop located at Van Tech that is run by students enrolled in the Small Business Program offered at Van Tech.

The Defendant is not involved in the administration of the shop. [ 35 ] There were two incidents that took place at Van Tech involving the Claimant in July 2017 that the Defendant submits supports its position that the Claimant breached the contract. [ 36 ] The first incident took place on July 11, 2017. The second incident took place on July 14, 2017. [ 37 ] In or around early July, the Claimant testified that when he went to restock his vending machines at Van Tech he noticed there was a retail shop that was selling products, including instant noodles.

Instant noodles do not conform to the guidelines: Exh. 1, p. 1. [ 38 ] He testified if he was prohibited from selling instant noodles then why was the summer school shop permitted to sell instant noodles? He felt this was a double standard and could negatively impact the financial return from his vending machines: ibid . [ 39 ] On July 11, he went to Van Tech around midmorning. At that time, he met with Mr. Godfrey at the school shop. He told Mr. Godfrey that the shop was selling products that did not meet guidelines. [ 40 ] He was told by Mr.

Godfrey that he would have to speak to the administrators for the Summer School Program as his contract with the Defendant related to regular school and not summer school. [ 41 ] The Claimant testified he attempted to take photographs of the products in the shop but was unable to do so as Mr. Godfrey turned out the lights in the shop. It was his intention to take some photographs of the products to show to Ms. Vey-Chilton.

He denies that there were any students in the shop at that time. [ 42 ] In cross-examination he admits that he did not have the consent of the Defendant to take photographs in the school and was unaware of any policy that required consent to take photographs in the school. [ 43 ] He denies becoming aggressive with Mr. Godfrey and denies that he had any physical altercation with Mr. Godfrey. [ 44 ] Mr. Godfrey testified that he observed the Claimant in the shop.

He began pointing at products for sale stating they were not compliant with guidelines. [ 45 ] He observed the Claimant taking out his cell phone and attempting to take photos of the interior of the school shop which, at that time, also contained some students.

[ 46 ] Mr. Godfrey told the Claimant that he was not permitted to take photographs. The Claimant continued to attempt to take photographs so Mr. Godfrey positioned himself in front of the Claimant to block his view of the interior of the shop. [ 47 ] He testified the Claimant became aggressive and he grabbed one of his hands in an effort to physically move him. [ 48 ] Mr. Godfrey demanded the Claimant to “let go” and requested that he immediately leave the school. The Claimant let go of his hand and reluctantly left the school. [ 49 ] Within minutes after this incident Mr.

Godfrey sent a contemporaneous email to Ms. Vey-Chilton (copied to Mr. Ambrose, Vice Principal of the Summer School Program) at 11:39 AM detailing his interaction with the Claimant stating, in part: “He then discussed the food that summer school was offering in the shop and stated it wasn’t compliant with healthy food standards. I expressed that summer school runs the shop during the summer and that they may run a different program of offerings, to Van Tech in the regular year. I have spoken to Dale Ambrose and I am certain Paul will attempt to enter the shop whilst it is open for students and take photos.

I believe this needs to go to the board level for investigation”: Exh. A, Tab 20. [ 50 ] The Claimant testified that he went back to Van Tech on July 14, 2017 to service his vending machines and observed that the store was still offering to sell products that did not conform to the guidelines, including instant noodles. He began taking photographs of the products. He denied that any students were present in the store. [ 51 ] He agreed that he never asked Ms.

Vey-Chilton, or anyone authorized by the Defendant, if he could take photographs in Van Tech explaining: A I - - I did not ask for consent, but I didn’t know that there’s consent to take picture because I see people take picture every day and then they take picture [indiscernible] also and there’s no sign on the school anywhere saying take a picture is not allowed.

And I have been in Van Tech so long nobody told me: Transcript, March 29, 2021, p. 91, ll. 20 – 44. [ 52 ] He admitted that he received a letter from a Michelle Kelly, Manager, Purchasing and Administrative Services, on behalf of the Defendant dated July 17, 2017, which notes: “On July 14 th 2017, again you attended at Vancouver technical school to take photographs. You were directed by Dale Ambrose to delete the photographs because there was no written consent by the board or students to allow you to take the photographs. From our understanding, you did not delete the photographs.

In effort to protect our students, Vancouver School Board does not allow photographs to be taken on our sites without the prior written consent from the board. The photographs you have taken must be deleted”: Exh. 1, Tab 10. [ 53 ] He denies that at any time there were any students captured in the photographs he took on July 14, 2017. He admits that he did not delete any of the photographs he took contrary to the direction from the Defendant that they must be deleted: Transcript, supra , p. 28, ll. 13 – 24. [ 54 ] Mr. Ambrose testified that he confronted the Claimant outside the shop at Van Tech on July 14, 2017.

He described the Claimant’s demeanour as “aggressive”. [ 55 ] Mr. Ambrose asked the Claimant to stop taking photographs and to delete the photographs but he refused. As well, he refused to show Mr. Ambrose any of the photographs that he took on July 14, 2017. [ 56 ] Mr. Ambrose produced a document described as Professional Standards brochure for BC Educators, which sets out safety protocols for students.

The protocols include consents to be signed by parents and guardians for children enrolled in the Defendant schools for the sharing of any “child’s name and/or image” to protect student privacy when they are on school grounds directly relating to, and necessary for carrying out educational functions: Exh. 3. [ 57 ] The Claimant testified that he did not go back to Van Tech after July 14, 2017.

The six vending machines operated by the Claimant at Van Tech were removed by the Defendant on August 31, 2017 and taken to a warehouse operated by the Defendant. [ 58 ] In October 2017, the Claimant relocated two of the operational vending machines to Killarney and two other operational vending machines to Churchill Secondary School (“Churchill”). [ 59 ] The Claimant agreed with the suggestion posed by the court that if he did suffer an economic loss the timeline of that loss would be between July 2017 and October 2017 in the following exchange: THE COURT: So you - - so it’s clear, you’re no longer in this business?

A No. I sold it June 18, 2019. THE COURT: So if you have a loss, it’s in relation to between July of 2017 and then October of 2017 on four machines because then you got four in Killarney and Churchill. That leaves two that are in the garage, and eventually you moved one of them into the garage. You later sold everything. A: Yeah. THE COURT: That’s the timeline.

A: Yes: Transcript, ibid , p. 33, ll. 34 – 36. [ 60 ] The Claimant filed a series of photographs attached to an email depicting products on sale in the school shop on July 14, 2017. The attached photographs did not depict the presence of any students: Exh. 1, p. 11. [ 61 ] He sent the photographs with an attached email on August 2, 2017 to various parties, including Ms. Kelly, Ms. Vey-Chilton and Mr. Ambrose: ibid . [ 62 ] Ms. Kelly responded on August 10, 2017 in an email to the Claimant in which she states, in part: “Thank you for the

summary of information provided to you in our letter dated July 17th, 2017. We have stated our position and the reasons we are ending our business relationship with regard to your equipment at Vancouver Technical School.

We are not prepared to continue with this relationship for the reasons outlined to you within the language of the letter: ibid . [ 63 ] Prior to the commencement of this trial the Defendant requested document disclosure, including the following: “Any and all documents substantiating any claims for alleged loss, damage or expense relating to the termination of the vending agreement, including all T-4A’s for the years 2015 to 2019, tax returns 2015 to 2019”: Exh. A, Tab 56. [ 64 ] During the course of cross-examination the Claimant admitted that he did not disclose the T4A’s as requested.

When it was put to him that Judge Phillips had cautioned him at the second Settlement Conference that there could be consequences for failure to disclose financial documentation he responded: “Yeah maybe, but I feel I have other document it’s enough to prove the loss, and this is sensitive so I [indiscernible] why you are asking with my letter”: Transcript, ibid , p. 108, ll. 43 – 46. [ 65 ] The Claimant did not file formal accounting records for his business in support of his loss of business commissions.

Rather, he relied upon an averaging of “Statement of Commissions” that he prepared over the years of 2014 through 2017 in support of his business loss of $35,998.32: Exh. 1, p. 21. IV. POSITION OF THE PARTIES The Claimant [ 66 ] The Claimant filed written submissions. [ 67 ] His submissions can be generally summarized as follows: • That the taking of photographs and occasional failure to follow guidelines would not justify the breaching of the contract; • That in July 2017, Ms. Vey-Chilton sent an email to the Claimant advising that he was in compliance with respect to the guidelines; • That Mr.

Godfrey sent an email to Ms. Vey-Chilton stating that the Claimant forced his way into the retail store at Van Tech but testified that the Claimant walked through the door into the retail store; • That Mr. Ambrose testified that students were in the retail store but the Claimant ensured that students did not appear in any of the photographs; • That Van Tech had a double standard when it came to following guidelines that did not apply to the Summer School Program which hurt the Claimant’s business; and • That there is conflicting evidence and therefore the case for the Defendant is not reliable.

The Defendant [ 68 ] The Defendant filed extensive written submissions. [ 69 ] Its submissions can be generally summarized as follows: • That the Claimant fundamentally breached the contract so that the Defendant was entitled to treat the contract at an end; • That in the alternative, if a breach has not been established, the Claimant has not proven that he sustained any damages other than nominal damages; • That the Claimant testified that he was aware of and warned about consequences of noncompliance with the guidelines; • That he was provided with a copy of the guidelines in February 2017; • That the contract between the parties contains only one express condition that requires compliance with the guidelines; • That he did not comply with the terms of the meeting with Ms.

Vey-Chilton on February 28, 2017; • That he did not obtain consent from the Defendant or its agents to take photographs in Van Tech;

• That he was asked by Mr. Godfrey on July 11, 2017, to stop attempting to take photographs; • That he was asked by Mr. Ambrose to stop taking photographs on July 14, 2017 and he also refused to delete anyphotographs; • That in October 2017 he put two operational vending machines in Killarney then two operational vending machines inChurchill to mitigate any business loss; • That he failed to produce his T4A’s or tax returns following the Defendant’s demand for document disclosure; • That the Claimant’s testimony was unreliable and inconsistent; • That the Claimant appeared to be taking cues from Ms.

Ma; • That the testimony of Ms. Vey-Chilton, Mr. Godfrey and Mr.

Ambrose was unshaken, unchallenged and generallycorroborated by the documentary evidence; • That the Claimant was told that the Summer School Program at Van Tech and the retail shop run by students isindependent of the administrators of the Defendant; • That the Claimant wanted to stock his vending machines with non-compliant products and wanted to support his actions bytaking photographs of the retail shop; • That the conduct of the Claimant in failing to follow directives of the Defendant amounted to a repudiatory breach; • That the Claimant has failed to establish that he suffered any damages; and • That the Court ought to find that any award of damages would amount to a windfall benefit for the Claimant. [70] The Defendant made reference to various case authorities to justify its position.

Where useful reference will be made to thesecase authorities in this Court’s Analysis and Findings. V. ANALYSIS AND FINDINGS [71] At common law, a minor breach by one party does not entitle the innocent party to treat the contract to be at an end: Hong KongFir Shipping Co. v. Kawasaki Kisen Kaisha Ltd.,[1962] 2 QB 26 (“Hong Kong Fir”), affirmed in Bayer AG v. Apotex Inc., (ON CA), [1998] O.J.

No. 3849 at para. 34 (“Bayer”). [72] However, the innocent party may treat the contract as repudiated and at an end if the breach is a “fundamental term” that “goes tothe essence of the contract”: Bayer, ibid. [73] The basic test in determining whether a breach is “minor” or “fundamental” is stated in Hong Kong Fir: “Does the occurrence of the event deprive the party who has further undertakings still to perform of substantially the whole benefitwhich it was the intention of the parties as expressed in the contract that he should obtain as the consideration for performing thoseundertakings”: supra. (Emphasis added). [74] Repudiation is an “exceptional remedy” and “should only be available in circumstances where the foundation has beenundermined, where the very thing bargained for has not been provided”: Lagrisola v.

Mapa, 2018 BCPC 356 at para. 57. [75] I find it is clear that in early July 2017 the contractual relationship between the Claimant and the Defendant was facingchallenges. However, on July 11, 2017 Ms. Vey-Chilton sent an email to Ms. Kelly, noting, in part, the Claimant “has been meeting theHealthy Food Guidelines in the machines”. However, she expressed concerns arising from Mr. Godfrey’s email respecting hisinteraction with the Claimant in his attempts to take photographs of the retail shop: Exh. A, Tab 20, p. 3. [76] In response, Ms. Kelly sent an email to Ms.

Vey-Chilton, noting in part: “After reading the string of emails below, I am of the opinion Mr. Paul Ma should be asked to remove his machines based on his lack ofcooperation and his disruptive nature. There is no out clause in the contract but due to this situation I am confident in asking him toremove his equipment.

As both you and I have inherited him and his contract, I think a joint letter would be appropriate”: ibid at p. 2.(Emphasis added). [77] I find the contractual relationship between the Claimant and the Defendant came to an end on July 14, 2017 after the Claimantreturned to Van Tech to take photographs of the products for sale in the retail shop and he was then confronted by Mr. Ambrose. [78] After being advised of the confrontation between the Claimant and Mr. Ambrose, Ms.

Kelly sent an email to the Claimant on thesame day stating, in part: “As of today - July 14, 2017 11:40 AM, you are no longer permitted to access Vancouver Technical School and if you do attempt toaccess the site you will be addressed by the School Liaison Officer. The Liaison Officer will contact the Vancouver Police”: ibid, Tab24. [79] Ms. Kelly also sent an email to the Superintendent’s office on July 14, 2017 expressing her concerns over “difficulties” with the

Claimant noting, in part: “[Ma’s] behaviour has escalated and we are now advising him that he is no longer welcome on the property and will be sending him aregistered letter to remove his equipment.

This was problematic from the beginning as the contract originally signed does not have an outclause”: ibid. (Emphasis added). [80] I find it is clear that the Defendant was aware from the beginning of their relationship with the Claimant the absence of an “outclause” was potentially problematic in the event there was a break down in their contractual relationship. [81] While the Claimant did not have the consent of the Defendant to take photographs on Van Tech property this did not form part ofthe contract. [82] The Claimant was never informed by the Defendant of safety protocols for students contained in the Professional Standards forBC Educators brochure: Exh. 3. [83] I find the Claimant’s attempts to take photographs at Van Tech on July 11, 2017 and actually taking photographs at Van Tech onJuly 14, 2017 triggered the termination of the contract by the Defendant.

At the very least, the Claimant should have been advised of thesafety protocols after his confrontation with Mr. Godfrey on July 11, 2017 and before July 11, 2017. [84] I find that it is clear the Defendant was looking for a way of terminating the contract with the Defendant in July 2017. I findsupport in such a finding from the postscript of an email sent by Ms. Vey-Chilton to various school board personnel in which she writes: “I do not need to tell you that we have had more than enough of PoMa Vending!

Please let us know how best to proceed”: ibid, Tab 20,p.3. [85] At the time the contract was terminated the Defendant was receiving some benefits from the vending machine sales. That is whatthey bargained for when they entered into the contract with the Claimant. [86] I find the Defendant became frustrated over the “disruptive behaviours” of the Claimant and wanted “out” from the contract. [87] I do not find that the evidence establishes that the essence of the contract was breached by the conduct of the Claimant.

I do notfind his disruptive conduct amounted to a repudiation of the contract. [88] I find that the Claimant has established that he is entitled to damages for breach of contract. The appropriate measure of damagesare expectations damages. That is, the Claimant should be placed in the position he would have been had the contract been performed:Bank of America Canada v.

Mutual Trust Co., 2002 SCC 43 , [2002] 2 SCR 601 at para. 26. [89] Having established the breach, the onus shifts to the Defendant to demonstrate that the damages should be reduced to theClaimant for his failure to mitigate: Six Factor Professional Services Ltd. v.

Aquiline Investment Group Limited, 2020 BCSC 127 atparas. 14-15. [90] The Claimant admitted he did not return to Van Tech after July 14, 2017, and it was the Defendant who removed the vendingmachines on August 31, 2017 and had them taken to a warehouse operated by the Defendant. [91] The Claimant relocated four of the operational vending machines at Killarney and Churchill in October 2017. [92] I do not find that the Claimant exercised due diligence in relocating the operational vending machines at the earliest opportunity. [93] Of greater concern, the Claimant failed to disclose financial disclosure after he was cautioned by Judge Phillips at the secondSettlement Conference that an adverse inference could be attributed to him for a failure to disclose financial documentation. [94] As noted in this judgment the Claimant elected not to disclose requested financial documentation, including his T4A’s asrequested as those documents were “sensitive”.

These are documents that would uniquely be in his control. I do make an adverseinference finding against the Claimant in calculating damages. [95] He testified that he has relied upon his averaging of “Statement of Commissions” that he prepared in support of his business loss:Exh. 1, p. 21. [96] I do not find that the Claimant has established any reliable evidence, both in his testimony and in his Statement of Commissionsthat would establish his business loss claim. [97] In Century 21 Canada Ltd. Partnership v.

Rogers Communications Inc., 2011 BCSC 1196 at para. 396 the Court commented onthe range of damages when there were deficiencies in the evidence: [396] I find that Century 21 has not proven damages of any substantial character. In my view however an award of nominal damages isappropriate. Such damages need not be small: Green et al. v. Stanton (1969), (BC CA), 6 D.L.R. (3d) 680 at 691-692(B.C.C.A.).

As stated in Green: It has been long established that because damages cannot be calculated with certainty is no reason why an award should not be made,and that a Judge must do the best he can to arrive at a proper figure. Notwithstanding the deficiencies in the evidence and the failure ofthe respondents to produce, or to even attempt to produce, evidence of how their income was affected, I am prepared to say that someloss must have been sustained.

The large amount awarded, calculated at $750 per month, appears to me to be based on pure conjecture speculated on an unfortunatemisinterpretation of the only evidence dealing with damages. In my respectful view, the respondents are entitled to damages, but they

must be nominal in the absence of anything upon which to properly assess them. Nominal damages need not be small , and in recent times more than token damages are often given. I would set aside the award of damages in the amount of $14,927.42 and substitute therefore the sum of $1,000. (Emphasis added). [ 98 ] In Georgina Windpower Corp. v.

Stelco Inc. , 2012 ONSC 3759 at para. 215 , the court found that the absence of any evidence of damages gave rise to only nominal damages in the sum of $1000.00. [ 99 ] The Court of Appeal recently upheld a trial court judgment awarding the plaintiff nominal damages in the amount of $1000.00 as a remedy for unjust enrichment. The trial judge found the evidence was insufficient to award anything more than nominal damages. The Court of Appeal noted that quantum findings of damages made by the trial judge is entitled to deference: Dr. Richard Benson v. Lauren Bramley MD Inc. , 2022 BCCA 385 at para. 12 . VI.

CONCLUSION [ 100 ] The Claimant is entitled to nominal damages of $1000.00. The Claimant is entitled to Court Ordered Interest as may be calculated by the Registrar of this court from the date of filing of his claim on July 16, 2019 until the date this judgment was released. [ 101 ] The damages are to be paid forthwith after Court Ordered Interest has been calculated. [ 102 ] Both parties shall bear their own costs. [ 103 ] I find in relation to the $750.00 deposited by the Claimant as a penalty, that it was the Claimant’s daughter who was wholly responsible for the outburst in court on March 30, 2021.

It would be unfair to punish the Claimant for the indiscretion of his daughter. The $750.00 shall be returned to the Claimant. [ 104 ] As the Claimant has been awarded only nominal damages and as both parties are to bear their own costs, the $350.00 paid into court by the Defendant as a penalty shall be returned to the Defendant. _____________________________ The Honourable Judge G. Rideout Provincial Court of British Columbia