Laing v. Medix Holdings Ltd., 2018 BCPC 276

Citation: Laing v. Medix Holdings Ltd. 2018 BCPC 276 Date: 20181031 File No: C-5117 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: Jonas Starbuck Laing CLAIMANT AND: MEDIX Holdings Ltd. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Appearing on his own behalf: Jonas Starbuck Laing Appearing for the Defendant: Lyle Jordan Place of Hearing: Duncan , B.C. Dates of Hearing: December 14 and 15, 2017, March 14, 2018 and June 22, 2018 Date of Judgment: October 31, 2018 Introduction

[1] This litigation arises out of a purported contractual arrangement between the parties whereby the Claimant, Jonas StarbuckLaing, who was at all material times a qualified fire suppression instructor recognized by the Ministry of Forests and Range WildfireManagement Branch (the “Wildfire Branch”), delivered two separate, two day training sessions at the behest of the Defendant, MEDIXHoldings Ltd., on May 16 and 17, 2016 and May 21 and 22 of 2016 (collectively the “Training Sessions”).

The course in questiondeveloped by the Wildfire Branch and being the subject matter of the Training Sessions and of this action is known as the S-100 BasicFire Suppression and Safety Course (the “S-100 Course”). [2] By way of the Notice of Claim filed July 8, 2016, Jonas Starbuck Laing (the “Claimant”) seeks recovery in debt from MEDIXHoldings Ltd. for the invoiced cost of presenting the two Training Sessions, his attendant fuel costs, and further seeks damages for thecost of Student Manuals acquired for the Training Sessions and for lost revenue arising from the cancellation of two further trainingsessions for other parties, as well as for fees and expenses related to his claim.

The amounts claimed total $8,498.50. [3] In its Reply with Counterclaim filed July 26, 2016, MEDIX Holdings Ltd. (the “Defendant” and sometimes referred to as“MEDIX”) denies liability for the alleged debt and the damages claimed by the Claimant. It further denies the purported contractualarrangements and the terms as alleged by the Claimant and in particular denies the existence of a “written contract”, then asserts variousbreaches by the Claimant in the delivery of the Training Sessions.

The Defendant’s Counterclaim is in the amount of $18,977.87, plusfiling fees for damages flowing from the Claimant’s alleged breaches in the delivery of the Training Sessions and for various throw awaycosts incurred by the Defendant. The Claimant filed his Reply to a Counterclaim, (which I take to be a denial of factual basis for theCounterclaim) on August 10, 2016 and therefore there is a denial of any resulting liability. [4] It is quite evident that the parties have prepared their respective pleadings in this action without the assistance of legal advice. Mr. Laing represented himself at the four day trial.

Lyle Jordan, who is the Chief of Operations for MEDIX Holdings Ltd., was therepresentative for and conducted the trial on behalf of that corporation. It is also quite evident from the evidence and what occurredduring the course of the trial that this matter went far beyond a commercial dispute; shortly after the completion of the Training Sessionsit quickly became a very high conflict case and very personal as between Jonas Laing and Lyle Jordan.

Both had to be cautioned by thecourt on several occasions during the course of the trial to contain their obvious personal animosity towards each other. [5] The task of this Court is to determine whether the Claimant, on one hand, and the Defendant, on the other, as a claimant byway of Counterclaim, have each proven their respective claims and in both cases whether the respective damages claimed have beenproven both as to causation and to quantum. Specifically this Court must determine:

a) whether or not the parties entered into a contractual arrangement;

b) if so, what were the terms of that contract;

c) did the Claimant fulfil his contractual obligations to the Defendant;

d) if so, on what basis, if any, should the Claimant be compensated and specifically should compensation be made on acontractual basis, on a contractual quantum meruit basis or on a restitutionary quantum meruit basis;

e) if not, what if any recoverable damages flow for the Defendant. Summarizing the Evidence [6] I do not intend to describe the minutiae of all of the evidence presented in this case. I have rather taken a more compressed andsomewhat selective canvassing of the evidence where it is relevant and necessary in making evidentiary findings. This approach wasrecently approved by Woods P.C.J. in R. v. Connell, 2017 BCPC 123 , 2017 BCPC123, at paragraphs 5 and 6. This approachhas been followed in other recent decisions of our court including some of my own [see for example: R. v.

S.W.P., 2017 BCPC 234;Holliston v. 1839928 Ontario Ltd. (c.o.b. Volkswagen Victoria), 2018 BCPC 86, [2018] B.C.J. No.692; and also Infinity Roofing v.Bernhardt, 2018 BCPC 170, [2018] B.C.J. No. 1367]. [7] However, in drawing necessary inferences and in reaching my conclusions, I wish to assure the parties that I have carefullyconsidered all of the evidence, even if I have not made specific reference to certain aspects of it.

Specifics of Undisputed Circumstances and Undisputed Facts [8] Based upon the whole of the evidence, there are a number of relevant circumstances that surround and have given rise to theClaim and Counterclaim. I have summarized below those facts which are undisputed or un-contradicted, except where specificallynoted. [9] At all material times in this action, the Claimant, being age 46 at the dates of the trial, carried on a sole proprietorship under thebusiness name of “Wildfire Training and Forest Services”. He is of Indigenous heritage.

His practical and educational background inforestry and related fields dates back to 1997. He holds certifications as a Geographical Information Systems (G.I.

S) Technician, and hastaken various courses including his first year courses towards a Forestry Technician Diploma. He is certified as a Dangerous TreeAssessor.

He has worked for a number of First Nation’s organizations and non-First Nation’s companies in the forestry sector since1997. [10] Starting in 1990 and continuing thereafter to and including the dates of this trial in 2017, the Claimant has received formaltraining and completed several higher level Wildfire Branch courses and has thereby achieved various levels of knowledge, proficiencyand responsibility in wildfire fighting (sometimes referred to as “wildland firefighting”).

Contemporaneously, he has obtained severalyears of field experience working as a forest fire and wildfire fighter rising to the position of a crew boss and strike team leader. [11] As noted at the outset of these reasons, the Claimant was at all material times a qualified fire suppression instructor recognizedby the Wildfire Branch to present the S-100 Course and the companion course S10A: Annual Refresher Training (“S10A Course”). The

Claimant obtained that certification on June 29, 2010 and was able to teach through his then sponsor and employer Osprey Silviculture Operations Ltd. (“Osprey”). On November 9, 2010, the Wildfire Branch confirmed his qualifications to deliver those two courses on his own and not simply under the auspices of Osprey. The Claimant has taught these courses on some 10 to 11 occasions to some 100 students, both on an “in house” basis for various forestry companies and on his own.

Prior to complaints being made to the Wildfire Branch by the Defendant (and specifically by Lyle Jordan) he had not been made aware of any complaints about his proficiency in teaching these courses. Even after the complaints were made by the Defendant and following the Claimant’s response to those complaints, he has not been made aware of any continuing concerns on the part of the Wildfire Branch about his proficiency in teaching these courses. [ 12 ] According to the Claimant’s evidence, he was advertising online about his availability in the early spring of 2016 to present the S-100 Course.

He testified that he usually charged each student the amount of between $200 and $250. If there were going to be less than 10 people participating in the course session, the charge was $250 each.

He advertised the availability of “block courses” and “block rates”, which I understand to offer reduced rates per student for guaranteed group numbers of students, which rate he said was usually charged at $180 per student. [ 13 ] According to the S-100 Instructor Manual, a copy of which was admitted into evidence, the “Course Learning Objective” of the S-100 Course is as follows : Upon completion of this course, the participant will demonstrate a basic knowledge of the wildland fire suppression organizational structure, the wildland fire environment, suppression and safety procedures and equipment used in British Columbia to effectively and safely respond as a basic wildland fire fighter. [ 14 ] The S-100 Course apparently is the introductory course to a series of other courses known as the BC Fire Suppression Training series developed by the Wildfire Branch. [ 15 ] The Claimant had in his possession electronic copies of the Student Manual and the Instructor Manual for the S-100 Course, together with the electronic copies of that course’s power point or slide presentation, as well as other higher-level courses developed by the Wildfire Branch.

The Wildfire Branch has developed for purchase a Student Manual. Also available from the Wildfire Branch are “Red Cards” to be completed by Instructors and delivered to the students who have successfully completed the course. The Red Cards confirm and certify a student’s successful completion of the S-100 Course and further confirm the duration of the certification, which in the case of the S-100 Course is for a period of one year. Thereafter that student must take and pass the refresher S10A Course on an annual basis to maintain their certification. [ 16 ] The Instructor Manual contains an outline of 15

section headings for the topics and matters that are to be covered in each course over the two days, complete with learning objectives for each section; specific matters to be covered under each heading; a suggested time table or time allocation; tips on matters of significant importance that require emphasis; and specific references to an accompanying power point presentation with its various slides.

The Instructor Manual also contains a listing of Instructor Equipment and Supplies for Classroom Equipment on day one, broken down into “Minimum Equipment” and “Suggested Equipment.” Day two sets out “Field Equipment” with a designation of certain “required items”. The Instructor Manual also contains a copy of a 30 minute exam with 16 questions, including multiple choice questions and a

section containing 23 true and false answer questions. It is marked out of 100 with a passing score of 70%. It is apparently scheduled to be administered after day one. The Instructor Manual contains an Exam Answer Key for use by the instructor in marking the exam. [ 17 ] The documentary evidence presented by the Defendant contains a copy of the face pages of a number of the completed examinations that were administered during the First Session. They appear to be identical to the version in the Instructor’s Manual but there is an indication that the time limit is 45 minutes. The

schedule for day two deals with Field Exercises and practical field tests including a reference to a “LCES Practical Test”. The acronym LCES stands for “Lookout, Communication, Escape, Safety”. There are also three field exercises listed that involve aspects of the use and operation of a fire pump and a fourth that focuses on hand tools and fire line construction. The total time for the two days of the S-100 Course is scheduled for 16 hours, inclusive of breaks. [ 18 ] The Defendant is a family owned company.

Lyle Jordan’s parents Stanley Jordan and Karen Jordan are the only shareholders of the company, and, along with Lyle Jordan, comprise the three directors. The corporate Defendant has its registered and records office at Stanley and Karen Jordan’s Ladysmith, BC residence. That residence is also the “Delivery Address” disclosed under the BC Company

Summary prepared and made available to the public under the BC Business Corporations Act by the Registrar of Companies and which is based upon annual filings made by or on behalf of the Defendant with the Registrar. Stanley Jordan has stepped down as the chief executive officer of the corporate Defendant. Lyle Jordan’s brother, Edward Jordan and Lyle Jordan are responsible for various aspects of the operation of the Defendant. Besides holding the title of “Chief of Operations”, Lyle Jordan described himself as the “Head of Education and Training”.

He holds a Level III occupational first-aid ticket and previously held a Red Cross first aid instructor’s ticket. He previously taught first aid courses for the Worker’s Compensation Board of British Columbia. [ 19 ] The core business of the Defendant is patient transfers between various medical facilities and also providing first aid services. It operates throughout Vancouver Island and on the mainland of BC. The business has expanded into providing industrial first aid and first aid at special events, and providing first aid services at construction sites.

It also provides certified construction service officers to advise contractors regarding safety rules and WCB rules, it sells first aid and safety supplies and presents first aid training and other safety based courses. This was its first foray into providing the S-100 Course. [ 20 ] During the peak periods of its business, which I take it to be in the spring and summer months, the Defendant has 35 employees. That reduces to between five and ten employees during the winter months.

As I understand it most of those employees hold an occupational first aid level three ticket and many hold the designation as a primary care paramedic. [ 21 ] In April 2016, the Defendant was awarded a contract to provide first aid services to the Wildfire Branch. It held a similar contract in 2015. A new condition of that contract for the 2016 fire season was that the employees of the Defendant who were fulfilling those first aid services were required to have completed the S-100 Course prior to June 2016 in order that they were able to be near the

wildfire fighting lines. Lyle Jordan was responsible for obtaining that employee training and accordingly contacted the Claimant after having viewed his online advertisements. [ 22 ] It is common ground that Lyle Jordan initiated contact with the Claimant in or around the first week of May 2016 to discuss the presentation of the S-100 Course. The communication between the Claimant and Lyle Jordan was apparently initially by way of telephone discussions.

It then continued with email exchanges, which based upon the submitted documentary evidence, started in or around May 6, 2016. [ 23 ] What was said by the Claimant and Lyle Jordan regarding the negotiations and what was agreed to or not agreed to is highly contentious and is the subject of conflicting evidence by the Claimant and by Lyle Jordan.

It is summarized below. [ 24 ] What is common ground is that the Defendant wanted the Claimant to provide two separate Training Sessions, first , on the weekend of May 16 and 17 of 2016 (the “First Session”), and thereafter the weekend of May 21 and 22, 2016 (the “Second Session”). It is also common ground that during the negotiations, Lyle Jordan sought a lower price per student than was initially being proposed by the Claimant, at the Claimant’s “block rate” of $180 per student. The Claimant then offered to lower the block rate to $150 per student.

The Claimant and Lyle Jordan both confirm that ultimately a charge of $130 per student was agreed to in their telephone discussions. [ 25 ] The parties disagree on most of everything else that was settled during the negotiations, other than the dates for the Training Sessions, the agreed charge of $130 per student, and the Defendant’s responsibility to obtain the facility to be used for the Training Sessions. [ 26 ] The Claimant sent an email on May 6, 2016 to the Defendant via Lyle Jordan with a number of attachments, including a cover letter and a document entitled “S-100 Series Forest Fire Suppression Training” addressed to the Defendant.

It is identified as “Quote #141”. Various copies of that document presented in the evidence have different dates including one produced by the Claimant as part of his documentary evidence. It has a date of May 9, 2017, being a year after the Training Sessions.

According to the Claimant the different and ultimately the wrong dates appear as a result of his accounting or word processing program inserting an incorrect updated date when he re-ran the document off of his computer for various purposes including for litigation disclosure purposes. [ 27 ] This Quote #141 document (hereinafter the “Quote Document”) goes on to provide the further additional information:

a) Under the descriptor of “Services” it states: “Provide fire suppression training to new and returning firefighters at Provincial standard. WCB and MOF qualified”

b) The Quote Document goes on to provide as follows: Quantity Description Unit Price Line Total 45 S-100 Fire Suppression and Safety Course 130.00 5850 S10A, S100 A refresher course 35.00 0.00 45 S-100 Training Manuals (M of FR Student Manuals) 12.50 0.00 Subtotal Tax (GST) Total 5850.00 380.50 6230.50 [ 28 ] The following additional information then appears in the Quote Document: This quote is intended for Medix Victoria and affiliates. Deposit of 15% ($934.60) Training Date(

s) May 16-17/ May 21-22 2016 Payment Due Course Date 15% Deposit (Prior Course [sic]) Make all payments to: Jonas Laing. [ 29 ] In the attached cover letter dated May 6, 2016 directed to the Defendant, the Claimant states as follows: Lyle as per our discussion I have put this quote for group training of the S – 100 Forest fire suppression training. I have pre-booked the dates of May 16 - 17 2016 and May 21 - 22 2016, to be held in Victoria, BC. I have given Medix and affiliate’s [sic] a group rate which we discussed.

This price includes Ministry of Forests S-100 forest fire suppression training, manuals and BCFS official Red Card certificates. Please fill [sic] free to contact me with any questions you or company my [sic] have, and thank you for your time. [ 30 ] On May 6, 2016, the Claimant had also contacted the Wildfire Branch to place an order for 40 of the Student Manuals for the S- 100 Course. Thereafter he engaged in a further email exchanges with the Wildfire Branch as a follow up to his order which was delayed in being filled and shipped.

The Wildfire Branch finally shipped the 40 ordered printed Student Manuals and Red Cards via Greyhound sometime in early June of 2016, but following the presentation of the Training Sessions. When the delay of receipt of the Student

Manuals became apparent to the Claimant, prior to the First Session he produced from the electronic versions in his possession 36 USB computer memory sticks upon which he had downloaded the S-100 Course Wildfire Branch course slide presentation, the Student Manual, the Instructor Manual and other Wildfire Branch advance courses. I accept this to be the case based on the whole of the evidence and notwithstanding the evidence of Jordan Lyle to the effect that only the slide presentation was on the USB sticks.

On May 13, 2016, the Claimant also corresponded by way of email with the Forest Fire Protection Branch and provided supporting correspondence with a request to have his name added to the BC Wildfire Service’s “qualified instructors page”. I understand that this was a request to have his name added to the appropriate web page because his name was not shown. [ 31 ] It appears that there was no response from the Defendant or anybody on its behalf to the proposal set out in the Quote Document and the accompanying correspondence and documentation sent on May 6, 2016.

Accordingly there was no expressed acceptance or rejection of the proposal contained in the Quote Document. Also there was no written communication seeking any clarification of the Quote Document by the Defendant.

No payment of the Deposit or any portion of it was received by the Claimant. [ 32 ] On May 10, 2016, the Claimant emailed to the Defendant indicating that he was “following up on interest in training course.” Notwithstanding the Claimant’s evidence that this email was intended to reference a purportedly discussed possible further course for the Defendant, in Vancouver, at some time after the Second Session and not to the Training Sessions and specifically the First Session, on May 12, 2016, Lyle Jordan responded by email in part as follows: The course I would like on 16 th and 17 th is a go.

I have 10 people registered for the course and possibly more by the end of the weekend. Please confirm that you have got this email and I will give you the address of the class and the building location. [ 33 ] In a brief follow-up email exchange on May 12, 2016 at 3:34 p.m. the Claimant provided the requested confirmation and then at 3:44 p.m., by return email Lyle Jordan confirmed the start time as 10 a.m. and the location as the Langford Legion and provided the address. Mr. Jordan goes on to say: I am going to see if I could borrow a bladder from Langford fire.

In response at 4:20 p.m., the Claimant stated: That would be helpful for sure. I will send outline when I get to computer. [ 34 ] Further emails exchanges occurred that evening about arranging for the Claimant to have the opportunity to see the Langford Legion in advance of the First Session. [ 35 ] On May 15, 2016 at 10:46 p.m., the Lyle Jordan on behalf of the Defendant emailed to the Claimant, in part as follows: We have 12 confirmed for tomorrow. I will be on-site at 0900. I’ll see you in the morning. to which the Claimant responded: Roger that, 12 people for tomorrow.

I ‘ll see [sic] at 9, for: 10 am start. [ 36 ] The Claimant was driven to the Langford Legion by his mother, Jillian Harris. He apparently arrived around 9 a.m. and before Lyle Jordan who arrived sometime after 9:30 a.m.

Prior to the commencement of the course, the Claimant provided Lyle Jordan with a copy of a letter from the Wildfire Branch on the letterhead of the Coastal Fire Centre of the British Columbia Forest Service, dated November 9, 2010 confirming their recognition of the Claimant as a qualified fire suppression instructor and therefore able to deliver the S-100 Course and the S10A Course. [ 37 ] The Defendant had arranged a “contra” of services for the use of the facility at the Langford Legion in a room that could accommodate over 30 people. When Lyle Jordan showed up he collected money from the attendees.

Only nine people, including Lyle Jordan, attended the two scheduled days for the First Session. Three employees of the Defendant were apparently unable to attend at the last moment due to employment commitments for the Defendant. [ 38 ] The documentary evidence supports that the Defendant had been publicizing the First and the Second Sessions on its Facebook page as early as May 12, 2016. A description of the S-100 Course was provided as well as the dates and location. It noted that MEDIX was opening the courses to the public and volunteer organizations.

It further stated that course cost was “$180 and it covers location, equipment and text material”. It further indicated that there were 32 seats available for the First Session and 20 seats available for the Second Session. The Claimant says that he only became aware of this online advertisement on day one of the First Session when one of the student attendees showed it to him. In his testimony, Lyle Jordan suggests that the Claimant was made aware of this Facebook advertising by the Defendant.

Based on the whole of the evidence I accept the Claimant’s contrary version. [ 39 ] There is conflicting evidence on the part of the Claimant and Lyle Jordan about what was and what was not covered during the two scheduled days of the First Session, about the quality of the course delivered by the Claimant and issues about time spent on certain matters during the course. Nonetheless, it is common ground that the Claimant did conduct the First Session over the two days. The Claimant administered the prescribed written examination for the S-100 Course to the nine attendees. All passed.

The scores ranged from a low of 82% to a high of 99%. Lyle Jordan received the lowest score. Emma Richards, who was called by the Defence as a witness, obtained the highest score. [ 40 ] Due to the Wildfire BC Red Cards not arriving in time for the First Session, the Claimant issued a printed card bearing his proprietorship name and logo and signed by him as a qualified instructor, thereby certifying that the named individual had successfully completed the S-100 Course (the “Claimant’s Course Certification Card”).

As I understand it, on one portion of the Claimant’s Certification Card, being on the reverse side, the Claimant was required to insert the one year expiry date for the certification of the individual who had completed the S-100 Course presented by the Claimant.

[ 41 ] Sometime in and around May 12, 2016, the Claimant issued an invoice number 218 dated May 12, 2016 to the Defendant for the First Session. It referenced a billing for: “BCFS S-100 Forest Fire Suppression and Safety Training Course, 12 units@$130.00 per” The total was extended to be $1,560.00. A line for GST was included showing the amount owing of $101.40. The grand total was therefore $1661.40. In the body of the invoice was a note that stated: “Medix Holdings Ltd. 12ppl confirmed May 15, 2016 10:46 p.m.” This invoice is hereinafter referred to as “Invoice 218”.

The Defendant acknowledges having received Invoice 218 in or around May 12, 2016. No amount has been paid by the Defendant on Invoice 218. [ 42 ] On May 17, 2016 the Defendant posted a series of photographs of the First Session on its Facebook page. It contained in part the following message: “congrats to all the students of our first ever S 100 course”.

It also acknowledged a “huge thanks” to the Langford Branch of the Royal Canadian Legion, as well as Richlock Rentals Ltd., who had made available a fire pump at no direct cost for the First Session. [ 43 ] Prior to the commencement of the Second Session on May 21, 2016, the Claimant and Lyle Jordan exchanged further emails and in particular between May 19 and 21, 2016. [ 44 ] The Claimant emailed Lyle Jordan on May 12, 2016 at 7:13 a.m. asking him as follows: If you can confirm date and numbers for May 21-22 training date.

Lyle Jordan’s reply was sent that date at 12:27 p.m. and stated: You can plan for a course of up to 12. But I have not confirmed all of them yet. Immediately thereafter at 12:46 p.m. the Claimant emailed Mr. Jordan as follows: is last invoice through Victoria office for May 16 – 17 course? Or Ladysmith office as I can pick up cheque. trying to purchase pump for my trying [sic] rather than renting The immediate response of Lyle Jordan sent at 12:49 p.m. stated: it went through the Victoria office and our bookkeeper will be the one issuing payment on the 21 st .

She typically mails it out so I will ask he [sic] if she can pull it from mail run but I think she may have already processed it The Claimant’s immediate email response was sent at 12:51 p.m. as follows: okay that’d be awesome if it could be pulled [ 45 ] There is nothing by way of any email or written communication at that point indicating any dissatisfaction on the part of the Defendant about the Claimant’s delivery of the First Session.

Similarly there appears to be nothing that would suggest that the Defendant had raised these types of concerns directly with the Claimant or had raised any concerns about the amount of Invoice 218. [ 46 ] The Second Session proceeded as scheduled. Lyle Jordan attended to collect money. Only two students showed up to register and to attend. One of them was Mel Rogers of Alpine First Aid Ltd., whom I understand to be a competitor of the Defendant. The Second Session was taught by the Claimant over the weekend. Lyle Jordan did not remain in attendance.

I understand that both attendees completed the S-100 Course successfully and received the Claimant’s Course Certification Card. Upon receipt of the previously ordered printed copies of the Student Manuals, the Claimant forwarded a copy to each attendee along with their Red Cards.

The Claimant further testified that thereafter he taught other employees of Alpine First Aid Ltd. the S-100 Course in order that they could meet the Wildfire Branch requirements for first aid attendants and drivers for the 2016 fire season. [ 47 ] Sometime and presumably just before or after day two of the Second Session, the Claimant issued invoice number 222 dated May 21, 2016 to the Defendant for the delivery of the Second Session. It referenced a billing for: “BCFS S-100 Forest Fire Suppression and Safety Training Course, 9 units@$180.00 per”. The total was extended to be $1,620.

A line for GST was included showing the amount of $105.30. The grand total was $1,720.30. In the body of the invoice was a note that stated: “Adjusted: min 10 clients per course. Please see condition on block training provided May 6, 2017.” This invoice is hereinafter referred to as “Invoice 222”. No amount has been paid by the Defendant on Invoice 222. [ 48 ] On May 21, 2016 the Claimant sent Lyle Jordan an email at 6:05 p.m. in which he says as follows: You had mentioned that your bookkeeper needed to speak with me. Do you have contact information.

On May 24, 2016 at 12:56 p.m., the Claimant again sent a further email to the Defendant which stated as follows: I have made attempts to reach bookkeeper without success regarding outstanding payments for S-100 fire suppression training. The remaining portion of the message requested a telephone call at a number provided by the Claimant. Later that day the Claimant sent a further email to the Defendant, which was directed to Lyle Jordan. In it he says as follows: I have tried to have the matter cleared as the invoices were due at time of course. I am in Victoria this afternoon on other business.

If payment can be made day [sic] it would be appreciated. I did await a call from your bookkeeper Alice, this did not occur [ 49 ] There is no documentary evidence that shows that any email responses were forthcoming from the Defendant. It appears likely that there were telephone calls or at least attempted telephone calls by the Claimant to Lyle Jordan seeking to obtain payment on the two outstanding invoices. [ 50 ] The Claimant issued another invoice numbered 226 dated May 22, 2016 to the Defendant for the Second Session. It referenced

a billing for: “BCFS S-100 Forest Fire Suppression and Safety Training Course, 2 units@$180.00 per”. The total was extended to be $360. A line for GST was included showing the amount of $23.40. The grand total was shown incorrectly as $380.40. In the body of the invoice was a note that stated: “Please see condition on block training provided May 6, 2017.” This invoice is hereinafter referred to as “Invoice 226”. No amount has been paid by the Defendant on Invoice 226. [ 51 ] Then on May 23, 2016 the Claimant sent the Defendant an email with the message subject line of “overdue account(

s) invoice #222- #226” and appears to have attached copies of Invoice 222 and Invoice 226 to that email.

A further series of emails were sent by the Claimant on May 26, 2016 and May 31, 2016 to the Defendant, again directed to Lyle Jordan seeking payment. [ 52 ] Once more there appears to have been no response from the Defendant or from Jordan Lyle to any of these communications. [ 53 ] On June 3, 2016, the Claimant conducted a corporate search of the corporate Defendant and learned of the Registered and Records Office information together with the Ladysmith Delivery Address for the corporate Defendant as well as the addresses for three directors, namely Stanley Jordan, Lyle Jordan and Karen Jordan.

On June 4, 2016, the Claimant and his mother Jillian Harris attended at that address. Ms. Harris was present during discussions between the Claimant and the gentleman who identified himself as Stan Jordan, Chairman of the Board of the Defendant. The un-contradicted evidence of Ms. Harris is to the effect that the Claimant presented unpaid invoices to Stan Jordan and was seeking payment of them, to which Stan Jordan said that the cheques were with the bookkeeper Alice in Victoria and that they should be in the mail. On June 10, 2016 the Claimant and Ms.

Harris returned to the same Ladysmith address and once again were informed by Stan Jordan that the cheques were still at the office in Victoria. She and the Claimant then drove to Victoria but were unable to locate the Defendant’s office. [ 54 ] On June 14, 2016 the Claimant sent a further email to the Defendant, this time directed to Stan Jordan, referencing their conversation the previous week and indicating that payment of the outstanding invoices had not been received and then threatened a Small Claims action. No response was received.

Accordingly the Notice of Claim was filed on July 6, 2016. [ 55 ] It is uncertain at that point whether the Claimant had or had not been made aware by either the Defendant or by any other party that the Defendant had issues with the quality or the content of the Claimant’s presentation of the S-100 Course.

Again, so far as I can determine, there was no indication that the Defendant intended to withhold payment because of those concerns but there may have been discussions about the qualifications of the Claimant to deliver the S-100 Course that had been raised by Lyle Jordan with the Claimant. [ 56 ] The Accused did become aware from discussions with representatives of the Ministry of Forests in June or July of 2016 that the Defendant had lodged a complaint with that Ministry about his qualifications to teach the S-100 Course and about the quality of the courses provided by him to the Defendant and its employees at the First Session. [ 57 ] An investigation was undertaken by the Wildfire Branch which seemingly took about a year to conclude.

The un-contradicted evidence is that the Claimant had numerous discussions with at least four different Wildfire Branch officials in order to confirm his existing certification as an “endorsed S-100 instructor” and about the complaint made regarding the quality of the course that he had delivered to the Defendant’s employees at the First Session.

By way of correspondence received from the Wildfire Service on or about July 6, 2017 directed to the Claimant, the complaint investigation appears to have been concluded (but possibly subject to a Wildfire Branch official attending a future course presented by the Claimant) with what can be characterized as a “letter of expectations” (the “Wildfire Branch Letter of Expectations”) which in

part confirmed to the Claimant the necessity to: follow the instructor requirement outlined in the S 100 Instructor Manual, which includes 16 hours of instruction delivered over 2 days. These 2 days include 8 hours of field exercise and practical field exercise and practical field test; and 8 hours of class room training with a written exam [ 58 ] The un-contradicted evidence of the Claimant was that his teaching status as a S-100 Course instructor was not revoked at any time, nor did he receive any penalty or sanctions nor was he required to attend any remedial programming.

It is also un-contradicted that no persons who attended the Training Sessions had their certification cancelled or were not recognized by the Wildfire Branch as holding their certification.

However it appears that other than teaching some of the S-10 A refresher courses and individual courses, the Claimant made a decision on his own not to teach the S-100 Course pending the completion of the Ministry inquiry. [ 59 ] The Claimant was contacted after the First Session around August 15, 2016 by one of the students in that session regarding a lack of an expiry date appearing on the Claimant’s Course Certification Card provided to that student. The lack of the expiry date that had apparently raised a concern within the Wildfire Branch as to the validity of the Claimant’s Course Certification Card.

The Claimant spoke to an official at the Wildfire Branch and the matter was sorted out and the Claimant’s Course Certification Card was accepted as valid. The Claimant sent out an email to the Defendant and to the attendees at the First Session explaining the situation. [ 60 ] As noted above, the Student Manuals and the Red Cards were received by the Claimant in June of 2016. The Claimant completed the Red Cards for each of the students in the First Session and clipped them to an individual printed copy of the Student Manual for each student at the First Session.

At the beginning of August of 2016 he attempted to make contact with the Defendant or its representatives regarding delivery of these items and was unable to do so. He then attended at the Ladysmith residence of Stanley Jordan, being the Address for Delivery of the corporate Defendant. No one would answer the door. As I understand it the items were left outside the residence at the Address for Delivery and subsequently returned to the Claimant. His attendance on that occasion resulted in a report being made to the RCMP.

The Claimant subsequently was contacted by various students from the First Session and he provided those items directly to them. As previously noted the two students at the Second Session received both their Student Manuals and their Red Cards directly from the Claimant. Evidence in Dispute

Summary of Claimant’s Evidence The Negotiations and the Arrangements

[ 61 ] The Claimant says that in the course of his negotiations with Lyle Jordan, there was a significant amount of haggling back and forth as to the price per student for the S-100 Course on the basis of there being 45 attendees which would then enable the Claimant to provide the Defendant with the “block rate”. [ 62 ] The Claimant stated that he was only permitted to instruct 32 students at a time.

The Claimant says that Lyle Jordan stated that he wanted 45 spots and the Claimant understood that the attendees would all be the Defendant’s employees and that 30 students would be attending the First Session and 15 would be attending the Second Session. [ 63 ] The Claimant also testified that the block rate price of $130 per student was based on the Defendant being responsible for providing the instructional room, coffee and the various pieces of equipment, including the projector for the in class slide presentation as well as a fire pump, the bladder required to use the fire pump, a tent cover and an outside area to dig.

The Claimant stated that he had sent the Defendant a list of required equipment in the first email sent to the Defendant. I could not find that list in any of the documentation put into evidence. [ 64 ] The Claimant says that he understood that the proposal set out in the Quote Document had to be taken by Lyle Jordan to the Defendant’s Board of Directors for approval. He further testified that he believed that the Quote Document set out the agreed arrangements between the Claimant and the Defendant for the Training Sessions and he “took it as a contract” that there were going be 45 people in attendance.

He further testified that there were no discussions about what would occur if there were less than 45 attendees. [ 65 ] The Claimant testified that immediately prior to the commencement of the First Session, that Lyle Jordan told him that there were fewer people than had been anticipated because the three absent employees had to attend at a car accident.

The Claimant said that he was not concerned by the lack of numbers because of his arrangement with the Defendant which was a flat rate of $130 multiplied by 45 students, no matter how many people actually showed up at the Training Sessions. [ 66 ] The Claimant denied that the arrangement between himself and the Defendant was that the Defendant sought the Claimant to present a course for “up to 45 people”. [ 67 ] The Claimant testified that although he had not received the deposit amount as set out in the Quote Document before the commencement of the First Session, he proceeded with the First Session because he took Lyle Jordan “at his word” that he would be paid.

Also, he was not worried about receiving payment because on the afternoon of day two of the First Session, Lyle Jordan approached him and stated that the cheque for the full payment for the First Session (not just the deposit) was in the mail to him. That allayed his concerns for about four days at which point the Defendant’s cheque had not arrived. [ 68 ] His concerns about receiving payment continued when the time had come to start the Second Session.

But the concerns were again somewhat allayed when Lyle Jordan told the Claimant immediately before the start of class on day one of the Second Session that the Claimant could go to the Defendant’s Victoria office to pick up the cheque, notwithstanding, as noted by the Claimant, that Jordan Lyle had previously told the Claimant that the cheque for monies owed to the Claimant was in the mail. Immediately prior to the start of the Second Session no explanation was offered by Lyle Jordan for the small number of attendees.

Also, there was no discussion about any concerns the Defendant had with the Claimant’s presentation at the First Session. [ 69 ] As I understand it, the Claimant’s explanation is that he issued Invoice 226 in a significantly reduced amount for providing the Second Session in a somewhat desperate attempt to get paid by the Defendant and because he was on the eve of departing for firefighting work for the 2016 season.

The Training Sessions’ Presentations and the Subsequent Events [ 70 ] The Claimant stated that he followed the general outline of the Instructor Manual and covered off the items set out in the Instructors Manual.

Although the students did not have the hard copies of the Student Manuals, as I understand his evidence he put the necessary information from the digital manual on the screen as well as the Wildfire Branch slide show. [ 71 ] He conceded that he did not necessarily cover the required topics in the same order as in the Instructor Manual and that some of the items anticipated to be covered on day two were interwoven into his presentation on day one. He specifically mentioned the LCES topics and the LCES field test.

Because there were less than 32 attendees, which would often be present at his S-100 Course presentations, he was able to move through the course outline items more quickly. [ 72 ] The Claimant stated that he covered all of the required material over the two days of the First Session. In cross examination he detailed what was covered or may have not been covered on day two being:

a) radio use instruction was mostly presented by the Defendant because the radios used were different than the two way radios used by the Claimant in the field;

b) a discussion of LCES issues contemplated by the LCES practical test which the Claimant said he incorporated into the evaluation process; the Claimant stated that the LCES evaluation process can have three components which he described as the day one field exercise, the written multiple choice questions in the formal exam and the LCES field test. The field tests can be done in an oral question and answer format which he says he used;

c) discussion of rapid transition scenarios;

d) the written test review and the actual formal writing and the marking of the test;

e) the Claimant said that discussions took place with the students around the field exercises set out in the Instructor Manual and further said that there were hand tools on site which he said he supplied having borrowed them from a forestry company in the Cowichan Valley;

f) further as I understand it the pump obtained from Richlock Rentals by the Defendant was available only for observation and discussion purposes, which were led by the Claimant but it was not started because of the conditions of lending imposed by Richlock Rentals Ltd. There is some confusion as to whether that occurred on day one or day two but the Claimant said that it did occur as part of the First Session; and

g) the Claimant did concede that very little, if any, time was spent on the

section of the Instructors Manual dealing with “Helicopter Use and Safety”. [ 73 ] He provided further evidence about the Second Session for the two individuals who attended. He stated that the field exercises were conducted at nearby Goldstream Provincial Park and that he provided a pump that day. [ 74 ] In his cross examination by Lyle Jordan he denied the suggestion put to him by Mr.

Jordan that providing the students with the USB sticks which contained additional high level courses was a “danger” to the students who attended the presented S-100 Course, and in doing so the Claimant noted that the students were only taking the basic S-100 Course and if they were intending to be actually fighting fires then they would be required to complete their certification under the S-185 Course entitled “Fire Entrapment Avoidance”. [ 75 ] The Claimant testified that as a result of the year-long investigation precipitated by the Defendant’s complaints to the Wildfire Branch and as a result of his choice not to continue to teach the S-100 Course pending the decision of the Wildfire Branch that he was required to turn down the opportunity of teaching 119 individuals. [ 76 ] He further clarified that his actual anticipated loss would be from teaching only 50 individuals because for tax purposes he generally keeps his instruction revenue under $10,000 per year, all of which he declares for income tax purposes.

He further said that if he is teaching the S-100 Course as part of an “in house program” for his employer his rate is $600 per day. [ 77 ] As I understand the Claimant’s testimony he is neither a registrant nor is he registered with Canada Revenue Agency in connection with charging or collecting GST, because he does not earn enough revenue through his proprietorship to meet the threshold.

Accordingly, he cannot charge GST to the Defendant on the invoices. [ 78 ] Based upon his various discussions and interactions with officials of the Wildfire Branch, the Claimant formed the understanding that the Wildfire Branch recognized the S-100 Course that he had taught for the Defendant’s employees at the First Session and further that the certificates that he had issued were subsequently used by the Defendant’s employees for their recertification after the usual one year expiry period.

He stated that he further understood that the Defendant’s employees had been “pre-approved” for the 2016 fire season to work out of Williams Lake upon completion of the S-100 Course that he taught. No witnesses were called by the Claimant to confirm this information to be correct. [ 79 ] He testified that Mel Rogers, who attended the Second Session, used his certification for Wildfire Branch work and the Claimant also understood such to be the case with the other attendee at the Second Session.

Summary of the Evidence of Lyle Jordan on behalf of the Defendant The Negotiations and the Arrangements [ 80 ] Lyle Jordan testified that the Defendant was working under significant time constraints in order to locate a Wildfire Branch endorsed instructor to have the Defendant’s employees complete the S-100 Course for their 2016 contracts with the Wildfire Branch. [ 81 ] He confirmed that he, on behalf of the Defendant, and the Claimant engaged in telephone discussions and bargained about the price of presenting the S-100 Course.

He stated that the Claimant agreed to a reduced price if the Defendant would provide the instruction room, the projector and screen and the tables and chairs at the Langford Legion. [ 82 ] Lyle Jordan stated that he told the Claimant during the telephone discussions that it was the Defendant’s wish to provide its “affiliates and the general public” with the S-100 Course over two separate course sessions with “up to 45 students total” and that he further said “I will try to put through as many people as we can initially,” describing it as “a genuine offer to provide a source of income” to the Claimant. [ 83 ] Lyle Jordan testified that the Defendant directly marketed the opportunity to take the S-100 Course to its employees and to other organizations, such as voluntary fire departments, but was unsuccessful in getting any outside interest.

The Defendant also used Facebook to advertise the Training Sessions. Lyle Jordan says that he shared this information with the Claimant and he invited the Claimant to try to market the Training Sessions to others. [ 84 ] He acknowledged that he received the Quote Document and as I understand it, the accompanying documentation.

He says that the details with respect to the Training Sessions were not “firmed up” with the Claimant until around May 12 or 13, 2016, based upon a series of telephone discussions between himself and the Claimant. [ 85 ] He denies that the Defendant ever agreed to provide any equipment, such as pumps, hoses and shovels, etc., citing the significant expense of acquiring those items. [ 86 ] He further denies that the Defendant ever promised the Claimant to provide 45 students.

The Court directly presented Lyle Jordan with the hypothetical question that if only one person showed up for the Training Sessions what would be the Claimant’s entitlement for compensation? Surprisingly he stated that it was their agreement that the Claimant would put on the two day S-100 Course for a total remuneration of $130. He further stated that although that it was not disclosed to the Claimant, the Defendant anticipated that they would have 22 of their own staff people and may be more attending the Training Courses.

The Defendant was planning on hiring 45 employees for the 2016 fire season, who I understand would all require the completion of the S-100 Course. [ 87 ] While acknowledging the receipt of the Quote Document which confirmed the number of 45 attendees, Lyle Jordan went on to

say that “we didn’t think anything of it at the time”. He agreed that the Quote Document did not reference “up to and including 45 people”, and further stated that in the telephone discussions subsequent to receipt of the Quote Document that he confirmed with the Claimant that the price of $130 was only for the number of people who attended.

There was no confirming email or other document presented to this effect. [ 88 ] Lyle Jordan then went on to describe the presentation of the Training Sessions as a “joint venture” between the Claimant and the Defendant. [ 89 ] He further stated that when the Defendant received the Invoice 218 that billed them for 12 students, that they [being the Defendant’s directors] were “fine at that time” with those charges because they had told the Claimant that there would be 12 students attending.

But he says there was a concern expressed to the Claimant in the telephone discussions to the effect that the Defendant would be paying Invoice 218 in 30 days. He did concede that this term of payment was not reflected in the Quote Document. Again there was no email or other document to confirm this change.

The Training Sessions’ Presentations and the Subsequent Events [ 90 ] In earlier telephone discussions between the Claimant and Lyle Jordan, which Lyle Jordan places at around May 12 or 13, 2016, it is contended that the Claimant said he was having difficulty sourcing certain equipment for the Training Sessions.

In response Lyle Jordan stated that he said he would attempt to get a bladder from the Langford Fire Department to allow operation of the pump, hence he sent an email to the Claimant to that effect. [ 91 ] Lyle Jordan went on to say that he and the Claimant had a preliminary discussion just before the First Session got underway at which point the Claimant only then disclosed that he did not have a wildfire fighting pump because it was with his brother and he was unable to obtain it.

Lyle Jordan said that the Claimant then told him that Gene Drew, a Wildfire Branch official at the Cobble Hill Wildfire Station, had told the Claimant that it was not a problem that the pump was not present and certain “physical” aspects of the course need not occur thereby “utterly” convincing Mr. Jordan that this was allowable, because the Defendant’s employees were a medical first aid crew and not a firefighter crew.

Lyle Jordan said it was at his insistence that there be equipment and specifically a pump and therefore he made the arrangements with Richlock Rentals on an “in-kind basis” whereby the Defendant was to provide $500 of first aid medical services, to obtain a rental pump for demonstration purposes only and on the basis that it only could be observed and not utilized. [ 92 ] Lyle Jordan then went on to say that during those preliminary discussions that he also became aware that the Student Manuals were not being provided and suggested that this was concerning to the students in attendance because they could not access the information on the USB sticks without computers.

Thereafter, Lyle Jordan says that the Claimant had at the outset of instruction told the students that the course he was presenting was being “augmented” with the information contained on the USB sticks. [ 93 ] Lyle Jordan went on to say that several of the students had “looks of puzzlement on their faces” during the Claimant’s presentation. He further suggested that there was limited interaction by the Claimant with the class, which Lyle Jordan says he usually fosters this when he is presenting a first aid course. Mr.

Jordan detailed that rather than interacting with the class, the Claimant simply sat and read from the power point presentation. Mr. Jordan also was critical about a lack of appropriate breaks occurring during the course of the Claimant’s presentation. [ 94 ] Lyle Jordan stated that the Claimant got through approximately 60 to 70% of the course material on day one. He said that at the lunch break on day one of the First Session, students approached him with concerns about the way that the course was being taught.

He said that he received further phone calls that night with expressions of concern from other students. [ 95 ] Lyle Jordan contends that on the Saturday night after completion of day one of the First Session that he had accessed the USB stick and found that what was contained on the USB stick was only the S-100 Course slideshow presentation.

He testified that none of the manuals that were referenced during the evidence of the Claimant were on it and further contends that the Claimant in fact told them that the only thing on the USB stick was the slide show presentation. [ 96 ] However, the USB stick was not presented in court during the trial nor was one brought to court by the Defendant, Mr. Jordan’s excuse being that the Defendant had missed the deadline for production of evidence. I note that Mr.

Jordan did not put the proposition that the manuals were not on the USB stick to the Claimant for him to address during his extensive cross examination of the Claimant, notwithstanding that Mr. Jordan was told by the court of the necessity of doing so if there was going to be significantly contradictory evidence presented by the Defendant. It is noteworthy that a very significant amount of time was spent by Mr.

Jordan in cross examination questioning the Claimant about the lack of paper copies of the Student Manuals being provided at the First Session and the repeated answers from the Claimant about it being made available to the students on the USB sticks. It is further noteworthy that during the lengthy cross examination, Mr. Jordan did advance the proposition to the Claimant about the potential risks caused to the students by the Claimant including advanced level courses on the USB stick. This is quite curious if in fact Mr.

Jordan knew that those materials were not present on the USB stick. [ 97 ] Notwithstanding the purported complaints Lyle Jordan had received about a lack of study materials and the absence of the manuals on the USB stick, he apparently did not raise the absence of the “augmenting” electronic manuals or other materials or in fact the very limited amount of materials, being only the slide presentation, with the Claimant prior to the commencement of day two of the First Session.

However, on day two he said that he approached the Claimant and wanted to get his assurances that the way the course was being presented would result in certification under the S-100 Course. He was assured by the Claimant that it would and again referenced his previous discussions with Gene Drew. [ 98 ] Lyle Jordan says that the classroom instruction continued on day two which also included the presentation and marking of the written exam. He says that in the afternoon there was the limited opportunity for the students to view the home safety pump obtained from Richlock Rentals.

He further said that the students were only able to observe the pump (which in fact was not a Mark 3 High Pressure Fire Pump or equivalent used in firefighting) for a period of about 15 to 20 minutes under the guidance of the Claimant. Mr. Jordan says that by three o’clock the Claimant had completed his presentation and thereafter there was a two hour radio operator’s

course presentation that Lyle Jordan made for his MEDIX staff, about the radio system used by the Defendant. The Claimant remained in attendance for about 45 minutes of that presentation at the invitation of Lyle Jordan and then departed. [ 99 ] Lyle Jordan testified that the Defendant acquired the instructional rooms for the training sessions from the Langford Legion by way of an “in-kind” contra of services whereby the Defendant provided the equivalent of $1,500 of employee wages for first aid attendants at Legion events.

I note that the Counterclaim in the Reply claims $1,320 plus an extra $500 for “additional room rentals for new courses and equip rental”. [ 100 ] Lyle Jordan continued to detail how at the end of day two of the First Session he felt dissatisfied about the course presentation delivered by the Claimant. When asked by the court if he ever raised concerns with the Claimant about the quality of the course or its content, Mr. Jordan indicated that before that discussion occurred, the Claimant was asking about payment for the First Session. It is also Mr.

Jordan’s evidence that it was the Defendant’s intention to pay Invoice 218 as presented on May 12, 2016 in full but on the basis of a 30 day net payment, which payment terms he stated he believed the Claimant had accepted by proceeding with the First Session without payment of either the deposit or the amount set out in Invoice 218.

He testified that he told the Claimant that arrangements would be made to make payment of the amount on Invoice 218. [ 101 ] Upon further questioning from the court about what was done to raise concerns with the Claimant about the Defendant’s dissatisfaction about the First Session and the fact that the Second Session was allowed to proceed, Mr. Jordan stated that:

a) he had received further telephone calls on the evening of day two of the First Session from attendee MEDIX employees who expressed their dissatisfaction and a “lack of comfort” with the level of training, thus they expressed concerns about being assigned to perform medical first aid services near a forest fire;

b) he intended to look into the qualifications of the S-100 Course Instructors and in that regard apparently contacted the Wildfire Branch but received no response;

c) he admitted that he was very busy with other operational issues for the Defendant;

d) nobody else was available to teach the S-100 Course which was required by the Defendant’s other employees who were awaiting to take the S-100 Course in order to perform duties for the Wildfire Branch;

e) he had nothing with which to compare and contrast the Claimant’s performance in the delivery of the First Session and hence he was giving the Claimant the “benefit of the doubt” that a satisfactory course had been delivered;

f) there were delays in the Defendant’s “leadership team” (being his parents, himself and his brother) meeting to discuss the issue of the Claimant’s delivery of the S-100 Course at the First Session; and

g) therefore, the consensus reached by the “leadership team” was that in absence of hearing back from the Wildfire Branch there was nothing else to do but to allow the Second Session to proceed as scheduled. [ 102 ] Again, Lyle Jordan provided no evidence that any of these concerns were raised by him or any other representative of the Defendant with the Claimant prior to the Second Session taking place. The Second Session proceeded as planned.

Lyle Jordan confirmed that he was only present to collect money from the two attendees. [ 103 ] Therefore, he did not attend the actual course presentation during the Second Session on either day. He offered little in the way of explanation as to why no MEDIX employees attended, especially in light of his email to the Claimant stating that there would be 12 attendees, other than to indicate in his evidence that the Defendant was very busy and the employees had been dispatched to deal with work assignments.

There was no evidence to suggest that there was any reluctance to send the MEDIX employees to the Second Session because of concerns about the Claimant’s presentation of the First Session. Also there was no evidence about any complaints about the S-100 Course presentation from the attendees at the Second Session. [ 104 ] Following the completion of the Second Session, and within about five days, Lyle Jordan says that he did speak to an official at the Wildfire Branch to inform them about the Training Sessions and inquire whether or not the Claimant was a qualified and recognized instructor for the S-100 Course.

He was told that the Wildfire Branch would look into the matter. He was also directed to the website for the Wildfire Branch to confirm the Claimant’s status in that regard. The Claimant’s name did not appear on that website list. Accordingly, Lyle Jordan then believed that the Claimant was not authorized to teach the S-100 Course.

Within a couple weeks, he did speak to an official at the Wildfire Branch who did confirm that at the time the First Session and Second Session were presented, the Claimant was qualified to teach the S-100 Course. [ 105 ] The Claimant was still pressing for payment of the outstanding invoices. In response, Lyle Jordan says that he spoke with officials at the Wildfire Branch about the course format.

Based on those discussions he formed the opinion that the Claimant had not received any permission to vary from the course outline as to a required amount of 16 hours of instruction time over the two days, or vary the included class room course content, the equipment training and outdoor exercises, or the requirement to provide Student Manuals and Red Cards. He also apparently told the Wildfire Branch officials that all of this had not occurred.

No witnesses were called from Wildfire Branch at trial to confirm any of this information. [ 106 ] It is not clear about the depth of those discussions and the basis upon which they were conducted or what accurate conclusions Mr. Jordan could have reached.

This is so, especially in light of Lyle Jordan’s own evidence that at least his copy of the USB stick did not contain any manuals, he had not received a paper version of the Student Manual or for that matter any manuals from the Claimant, and also based upon the court file and specifically the Defendant’s application filed October 10, 2017, that indicates that the Defendant had been awaiting a requested copy of the Instructor Manual for S-100 Course and had not received it until October of 2017 by email. [ 107 ] Notwithstanding that there is no email sent from or on behalf of the Defendant confirming the reason for non-payment, namely the Defendant’s investigations about the Claimant’s certification credentials to teach the S-100 Course and whether the course had been

taught properly, Lyle Jordan testified that he provided this information in telephone discussions with the Claimant. He could not be specific as to when those discussions occurred nor was the Claimant cross examined on this point by Mr.

Jordan. [ 108 ] Based on the whole of the evidence it appears from the Claimant’s documents and specifically his email exchanges with Osprey, in or around May 26, 2016 and with Mel Rogers of Alpine First Aid Ltd., in or around June 1, 2016, which referenced the Claimant’s discussions with Lyle Jordan, any of those type of discussions between Lyle Jordan and the Claimant would have occurred sometime during that timeframe but likely not thereafter. This outside last date is based upon the Claimant’s evidence to the effect that Mr.

Jordan was not returning his telephone calls nor responding to his emails and was blocking the Claimant’s emails. There is also an absence of any emails exchanged between the parties subsequent to May 31, 2016, contained within the documentary evidence other than an email sent by the Claimant to Lyle Jordan at his known email address on August 16, 2016 regarding the expiry dating issue on the Claimant’s Certification Card and further confirming his unsuccessful attempts to deliver the Red Cards to the Defendant.

This email was returned to the Claimant as undelivered with the following error message: “550 No Such User here”. [ 109 ] After the Wildfire Branch had confirmed that the Claimant was a certified instructor for the S-100 Course, Mr. Jordan went on to say that he felt it necessary to conduct “further investigations” and inquiries on behalf of the Defendant with the Wildfire Branch to determine the sufficiency of the programs presented by the Claimant at the Training Sessions.

In the meantime, no amounts were paid to the Claimant, notwithstanding that in Lyle Jordan’s view the Claimant was getting “aggressive” about being paid. [ 110 ] Lyle Jordan testified that he contacted Mel Rogers and told him that the Wildfire Branch had confirmed that the Claimant’s Certification Card was valid but that the Wildfire Branch was looking into whether or not the course had been taught properly by the Claimant. Mr. Jordan said that he told Mel Rogers that if the S-100 Course had been taught improperly that the Defendant would “fix” that with him.

There is no evidence that Defendant ever offered to refund the course fee to Mr. Rogers or actually did so, notwithstanding that no payments were made to the Claimant. [ 111 ] From his evidence, it is clear that Lyle Jordan continued to have discussions with various officials at the Wildfire Branch. He testified that his continuing concern was about the sufficiency of the course content that had been provided by the Claimant in the Training Sessions.

Because of this, he testified that he could not “in good faith” and he was “ethically” reluctant to send out the Defendant’s employees to provide first aid services for the Wildfire Branch based upon his concerns for exposing those employees to risks for which they were not adequately trained, all of this notwithstanding that in 2015 MEDIX employees were working and fulfilling the Defendant’s contractual obligations with the Wildfire Branch without that training. He says that as a result, the Defendant turned down two “standby” opportunities for work with the Wildfire Branch.

No documentation or independent corroboration from the Wildfire Branch was provided as to the times and dates of those “standby opportunities”. [ 112 ] Lyle Jordan testified that he spoke by way of telephone to Carolyn Harvey, the representative of the Wildfire Branch who had confirmed that the Claimant was validly certified to teach the S-100 Course and asked for her recommendations as to how to proceed. As I understand, a suggestion presented by Ms.

Harvey was based upon the premise that the Defendant’s employees had successfully completed the S-100 Course and had been certified by the Claimant with the issuance of the Claimant’s Certification Card and which had at that time been accepted by the Wildfire Branch.

Carolyn Harvey suggested that the Defendant could have its employees take the S10A Annual Refresher Course before the Defendant dispatched its employees in fulfilment of the Defendant’s 2016 contract with the Wildfire Branch. [ 113 ] The S10A Course was required to be completed annually in any event following the completion of the S-100 Course, which in the usual course would have been required in the spring of 2017. I do not understand that the Wildfire Branch was requiring or insisting on following this procedure but rather it was offered as an interim suggestion by Ms.

Harvey to help allay Lyle Jordan’s expressed concern and while the Wildfire Branch considered the adequacy of the Training Sessions presented by the Claimant. According to his evidence, Ms. Harvey also indicated that the course presented by the Claimant “ultimately may be acceptable” as would the certifications he had issued. As I understand it that would become clear once the Wildfire Branch had conducted its inquiries. Caroline Harvey was not called as a witness. No corroborating documentation such as any confirming emails or correspondence was presented into evidence by the Defendant.

It is noteworthy that there is no practical component to the S10A Course because it is an online course. [ 114 ] Thereafter Lyle Jordan says that the Defendant arranged with DRAM Ventures Inc. to have the Defendant’s employees, who had attended the First Session, do the four hour online S10A course (also known as S100A Course) in June of 2016 at a cost to the Defendant of $23 per student. No documents were submitted by the Defendant in corroboration of the amounts paid and by whom and for how many.

Emma Richards for one did not take that course until 2017. [ 115 ] Following completion of the S 10A Course the employees were apparently dispatched by the Defendant to fulfil the Wildfire Branch 2016 contract. [ 116 ] Besides the Quote Document, Lyle Jordan confirmed that the Defendant received Invoice 218 and Invoice 226 by email and further that the Claimant attended at Stanley Jordan’s residence, being the Registered and Records Office and the Delivery Address for the corporate Defendant at which time Invoice 222 and Invoice 226 were presented.

According to Lyle Jordan, the Defendant took issue with the change of the rate per student from $130 to $180. It is not clear whether that concern was raised with the Claimant. [ 117 ] Lyle Jordan stated that the Defendant continued to withhold payment because the Claimant was becoming “more and more desperate” to receive payment and in particular that occurred after he was told that the Defendant was investigating his qualifications. [ 118 ] In

summary he says that the Defendant withheld payment because he says the Claimant “misled” the Defendant and failed to teach the S-100 course “in accordance with the guidelines” citing the lack of equipment training and what the Defendant says were unauthorized variations in the S-100 Course and which the Claimant had represented were authorized by the Wildfire Branch and which the Defendant contends were not. [ 119 ] I understand that the Defendant did not hear back from the Wildfire Branch or receive any formal notification about the result of their inquiries or any findings of deficiencies in the Claimant’s teaching of the Training Sessions or any decision on the part of the Wildfire Branch that the certifications that had been issued by the Claimant from the Training Sessions were being invalidated or that the

Claimant was in anyway being sanctioned or penalized by the Wildfire Branch for his presentations at the Training Sessions. [120] At the end of his evidence, Lyle Jordan stated that the cover email of the Wildfire Branch Letter of Expectation from KenTaekema of the Wildfire Branch, sent to the Claimant in or around July 6, 2017, references an “injury”. He testified that the Claimantnever made a complaint about an injury and hence he surmised that there must have been another complaint made to the Wildfire Branchabout the Claimant. There is no evidence before the court to support that suggestion.

The Defendant’s Evidence About its Counterclaim [121] Lyle Jordan testified that the Defendant’s Counterclaim is essentially based upon compensation for losses arising out what theDefendant contends were highly deficient Training Sessions presented by the Claimant, including recovery of lost wages for training andfor retraining its employees, the management time spent conducting investigations and inquiries, throw away costs for “in kind” contrafor rentals from Richlock Rentals and the “in kind” contra for rentals at the Langford Legion, and loss of business opportunities which Itake it to include the “standby opportunities” that were declined by the Defendant.

Little in the way of any supporting documentationwas tendered by the Defendant in support of the Counterclaim.

Summary of the Evidence of Emma Richards on behalf of the Defendant [122] As part of the Defendant’s case, it called Emma Richards. She holds a qualification as a doctor of Naturopathic Medicine. Shealso holds an occupational first aid certification. She was one of the nine employees of the Defendant that attended the First Session. [123] She described the training provided by the Claimant. She confirmed that there was a LACES component to the course althoughshe could not recall if there were LACES manuals on the USB.

She confirmed that she was not provided with a hard copy of the StudentManual but was provided it by the USB. She did not have computer with her on day one. [124] She confirmed that at the outset of day one of the First Session, the Claimant indicated that there would be a programmodification due to the fact that the attendees were first aid attendants and not firefighters, but she did not know what the modificationsactually were. She described the classroom instruction she received on day one as theoretical in nature. [125] She said that on day two there were more presentations of theory in the morning.

In the afternoon they went outside for a periodof time to view the pump but she did not have the opportunity to use it and she says that there was an initial delay of about 30 minutesbefore the pump presentation occurred. She testified that although she had never been in a wildfire situation where she needed to use apump, she testified she thought it could be potentially beneficial. [126] She testified that in the course of completing the S-100 Course, she had one written exam presented to her that she wrote andpassed. There were no practical exercises.

She did not recall that there were any hand tools present except for a “pulasky”, which isapparently a tool used for chopping and grubbing. Except for the pump attachments there were no hoses present. She said that she didnot receive any training in the use of hand tools. [127] To the best of her recollection, day one of the First Session went from approximately 9:30 a.m. to around 4:30 p.m. and on daytwo it went from approximately 9:30 a.m. until around 3:30 p.m. [128] She obtained her S-100 Course certification in 2016 to be able to be certified to work at a wildfire situation.

She had workedduring the 2015 wildfire season with MEDIX but the S-100 Course certification was not required that year. [129] She did not work in a wildfire situation during the 2016 wildfire season. She recertified in the spring of 2017 with the S10ACourse, taken online, and based upon having completed the S-100 Course and being certified by the Claimant at the First Session in2016. She worked as a first aid attendant for the Defendant during the 2017 wildfire season.

She never had her certifications questionedwhen checking in to work at any of the wildfire locations. [130] She confirmed that while she was near fires in an active fire zone in sight of the fire, she was not actually fighting fires. [131] She testified that after she received a USB stick from the Claimant, she read through the materials contained on it the Saturdaynight following the day one presentation. Although she could not recall precisely, she stated that she believed it contained the S-100Course manual and other presentation materials and, as I understand it, there was more than one file on the USB stick.

She stated shewas not aware what was to be taught on the S-100 Course.

She testified that she had no difficulty in passing the course with 99%, basedupon the instruction received from the Claimant and the materials provided at the First Session. [132] She could not recall if she was paid by the Defendant to attend the S-100 Course at the First Session but believed that the cost ofthe course was paid for by the Defendant who had told her to attend the course. [133] Emma Richards was not asked by the Defendant nor did she provide any additional evidence about the quality of the Claimant’sinstruction during the First Session or any criticism or concerns she may have had or conveyed about its presentation or contents to LyleJordan Applicable Legal Principles Burden of Proof [134] The burden of proof in a civil case rests with a claimant to prove their case on the standard of a balance of probabilities.

TheSupreme Court of Canada in F.H. v. McDougall, 2008 SCC 53 , [2008] 3 S.C.R. 41 at paragraph 49, states: [I]n civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge mustscrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.

[135] Therefore, the Claimant must prove the existence of the facts and other essential elements upon which he relies in order tosucceed in his claim against the Defendant. If he fails to do so, he cannot succeed. [136] Similarly the Defendant, as a claimant by way of Counterclaim, must do the same with respect to the subject matter of itscounterclaim against the Claimant. [137] What does “proof on a balance of probabilities” mean? It does not mean proof beyond a reasonable doubt. That standard ofproof applies only in criminal trials.

In civil trials, the party who has the burden of proof on an issue must convince the finder of fact(here being a judge alone) that what she or he asserts is more probable than not or to put it another way that the balance is tipped in his orher favour [see F.H. v. McDougall, supra]. [138] The degree of probability required to meet the standard and to discharge this burden of proof has been defined by Lord Denningin the following terms: … it must carry a reasonable degree of probability but not so high as is required in a criminal case.

If the evidence is such that thetribunal can say: ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal it is not. [see: Miller v. Minister of Pension, [1947] 2 All E.R. 372 at 374 (K.B.)] [139] In Smith v. Smith, (SCC), [1952] 2 S.C.R.

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