Rai v. Bal, 2021 BCPC 188

Citation: Rai v. Bal 2021 BCPC 188 Date: 20210618 File No: C-84168 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Court BETWEEN: KAMAN RAI and RAMANDEEP RAI CLAIMANTS AND: AMAN BAL DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Claimant: G.K. Randhawa Counsel for the Defendant: S. Sangha and G. Boparai, Articled Student Place of Hearing: Surrey , B.C. Dates of Hearing: January 12, 2021; April 12, 2021 Date of Judgment: June 18, 2021 INTRODUCTION

[ 1 ] This is a case of an alleged failure to preserve and produce the videos and images of a lifetime event – a wedding! [ 2 ] The Claimants, Kaman Rai and Ramandeep Rai (collectively, the “Rais”), bring this action against the Defendant, Aman Bal, for breach of contract. [ 3 ] The parties entered into a written contract, dated June 22, 2014 (the “Contract”), pursuant to which Mr.

Bal was to provide videography and photography services at the Rais’ wedding events, including several pre-wedding events, the wedding, and the reception (collectively, the “Wedding Events”) in June 2015, and produce the items comprising the Modified Platinum Package, described below (collectively, the “Products”). [ 4 ] The Rais allege that Mr.

Bal did not produce and deliver the Products in accordance with the Contract, and, furthermore, he lost certain irreplaceable childhood photographs of the Rais, and acted in a high-handed manner, causing them significant mental distress. [ 5 ] By way of relief, the Rais seek the following: (

a) Return of their childhood photographs (the “Childhood Photographs”); (

b) Return of their hard drive (the “Hard Drive”); (

c) Return of all raw video footage and photographs from the Wedding Events (collectively, the “Raw Images”); (

d) Return of their deposit of $5,000; (

e) Damages of $10,000 for mental distress; (

f) Punitive damages of $10,000; and (

g) Costs of $236, comprising their filing and service fees in this action. [ 6 ] First, Mr. Bal disputes that he personally entered into the Contract with the Rais. He says his corporation, Elite Image Productions Ltd. (“EIP Ltd.”), entered into the Contract with the Rais. Second, Mr. Bal says the Rais’ claim is barred by the effluxion of time, pursuant to s. 6(1) of the Limitation Act , [ SBC 2012] c. 13 . Third, Mr. Bal disputes the Rais’ allegations and seeks to have the Rais’ monetary claims dismissed. [ 7 ] On the first day of the trial, Mr.

Bal informed the court that he would be willing to return the Childhood Photographs, the Hard Drive, and the Raw Images, and work with the Rais to deliver the Products to their satisfaction. However, the Rais were reluctant to agree to any suggestions or offers from Mr. Bal in light of their prolonged and difficult dealings with him in the past five plus years. Yet, they agreed to view the Products. They were eager to have the Childhood Photographs and the Hard Drive returned to them, as the Childhood Photographs are irreplaceable.

Therefore, on January 12, 2021, I made certain orders, including an order to facilitate the Rais’ viewing of the Products. [ 8 ] On the second day of the trial, on April 12, 2021, the Rais reported that two of the Childhood Photographs were missing, and some pre-wedding and wedding photographs were missing from the Hard Drive. They indicated that they are not confident that Mr. Bal would deliver the Products in accordance with the Contract. They wanted the Raw Images so that they could have another photographer/videographer assemble the products they originally contracted Mr. Bal to produce.

ISSUES The issues to be determined in this case are as follows: 1 . Who is the proper defendant in this action – Mr. Bal or EIP Ltd.? 2 . Is the Rais’ claim statute-barred? 3 . Did Mr. Bal/EIP Ltd. breach the agreement between the parties? 4 . If Mr. Bal/EIP Ltd. breached the agreement between the parties, did the Rais suffer any damages from such breach? If they did, what damages are they entitled to? BACKGROUND [ 9 ] Ms. Rai has been working as a certified dental assistant for approximately 14 years. Mr. Rai has been working as a by-law officer since 2016. [ 10 ] Mr. Rai and Ms.

Rai dated for approximately eight years, and they planned to marry on June 26, 2015. [ 11 ] The Wedding Events included several pre-wedding ceremonies and events, the wedding, and the reception. [ 12 ] The Rais started planning their wedding in March 2014. [ 13 ] The Rais wanted candid and natural shots of their wedding. They searched for a videographer/photographer, and after interviewing four or five videographers and photographers, chose to hire Mr. Bal, as they liked his work. Ms. Rai said that at that time, Mr.

Bal was working with fashion shows, and that was appealing to the Rais. [ 14 ] The Rais met with Mr. Bal at his home-office on June 22, 2014, and discussed the scope of the services and products, dates of the various Wedding Events, the price, and the timing for the delivery of the Products. Mr. Bal showed the Rais his marketing brochure (the “Brochure”), which described the Platinum Package as follows:

Platinum Package (shot in 1080p) $8500 cdn This wedding package consists of 1 Fine Art (40 page) digital album (12 x12 print), acrylic imaged covers with 12 x 24 panoramic pages • 8 x 10 parent album • 300 thank you cards • Digital guest book • 4 – 11 x 14 metallic prints • 30 – 8 x 10 prints • 4 sets of blu ray disks • And a DVD of all pictures taken. [15] The Rais agreed to purchase the Platinum Package with one modification, in that they wanted one album for themselves and twoparent albums (collectively, the “Modified Platinum Package”). [16] Mr. Bal presented the Contract to the Rais to sign.

The undisputed essential terms of the Contract for the Modified PlatinumPackage were as follows: The price was $8,500;Upon execution of the Contract, the Rais were to pay a deposit of $1,500; andMr. Bal was to be the exclusive videographer and photographer at the Wedding Events. [17] I note that many of the other terms in the Contract are confusing; some are internally contradictory; and others are simplyinapplicable to the circumstances of the parties. To put it mildly, the Contract is an utterly incomprehensible document. I will say moreabout this later in my Reasons. [18] After their discussion with Mr.

Bal on June 22, 2014, the Rais signed the Contract and paid Mr. Bal $1,500 in cash towards thedeposit required under the Contract. Then on June 17, 2015, they paid Mr. Bal another $3,500 in cash, as a partial payment of theContract price. [19] Between June 2014 and June 2015, the Rais provided to Mr. Bal the Childhood Photographs, and other family and datingphotographs for a slide show at the wedding. They also provided the Hard Drive to Mr. Bal. [20] The wedding was large, and cost about $100,000.

There were about 150 guests at the pre-wedding events, 200 to 250 guests atthe wedding, and 500 guests at the reception. The Rais and their parents shared the cost. [21] Mr. Bal holds a degree in psychology from The University of British Columbia. He has been involved in photography since hischildhood. For the past four years, he has been working as a sales representative in Vancouver, British Columbia, for a paint company.He has also worked as a counsellor for youth. [22] Mr. Bal has been a professional photographer for 15 to 20 years.

He provided videography services for music videos,photography services for models and fashion shows, and videography and photography services for weddings. [23] Mr. Bal and his crew attended at the Wedding Events, and took photographs and made videos. [24] As stipulated in the Contract, the Rais did not hire anyone else for photography or videography services for the Wedding Events. THE EVIDENCE [25] Only the Rais and Mr. Bal testified. Various documents were entered into evidence.

CREDIBILITY OF WITNESSES [26] Credibility is central in this case, as there were contradictions between the testimonies of the Rais and Mr. Bal. [27] The law regarding credibility assessment is set out in Bradshaw v. Stenner, 2010 BCSC 1398 (aff’d. 2012 BCCA 296), at paras.186 and 187: [186] Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witnessand the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), (SCC), 59 S.C.R.452, 50 D.L.R. 560 (S.C.C.)).

The art of assessment involves examination of various factors such as the ability and opportunity toobserve events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct andcross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie,and the demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont.H.C.); Faryna v.

Chorny, (BCCA), [1952] 2 D.L.R. 354 (B.C.C.A.) [Farnya]; R. v. S.(R.D.), (SCC), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)).Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a wholeand shown to be in existence at the time (Farnya [Faryna] at para. 356).

[187] It has been suggested that a methodology to adopt is to first consider the testimony of a witness on a ‘stand alone’ basis, followedby an analysis of whether the witness’ story is inherently believable. Then, if the witness testimony has survived relatively intact, thetestimony should be evaluated based upon the consistency with other witnesses and with documentary evidence. The testimony of non-party, disinterested witnesses may provide a reliable yardstick for comparison.

Finally, the court should determine which version ofevents is the most consistent with the “preponderance of probabilities which a practical and informed person would readily recognize asreasonable in that place and in those conditions” (Overseas Investments

(1986) Ltd. v. Cornwall Developments Ltd. (1993), (AB QB), 12 Alta. L.R. (3d) 298 at para. 13 (Alta. Q.B.)). I have found this approach useful. [28] I will use this approach in assessing the credibility of the witnesses. [29] I found the Rais to be forthright. Their evidence was coherent, internally consistent, and externally consistent with thedocumentary evidence. I have no hesitation in accepting their evidence. [30] However, I cannot say the same of Mr. Bal.

There were numerous inconsistencies in his evidence, both internally within his ownevidence, and externally with the Rais’ evidence and the documentary evidence. Most troubling was his readiness to come up with somenarrative, without any foundation or documentary support. He was often evasive, and on a number of occasions, I had to direct him toanswer the questions put to him. The following are a few examples of Mr. Bal’s troubling testimony: (

a) Mr. Bal said he has been a videographer and photographer for many years, and he has never received any complaints. This isdirectly contradictory to the evidence that, on at least two other occasions, others have sued him regarding his videography andphotography services at weddings. The evidence also indicates that he was named a defendant in at least three further actions. Althoughhe said, “if people do not pay their bills, they will not get their videos,” he did not sue anyone for non-payment, but others have sued him. (

b) When questioned about Mr. Bal’s videography and photography business and how he was paid for his services, he was evasive.He said he hired employees to help him with filming or editing videos and taking photographs. Although he seemed to suggest that EIPLtd. was the entity through which he carried on his business, he said he paid his employees by cash, his personal cheque, or e-transfer. (

c) Mr. Bal said he is not in the photography business anymore and that he is no longer marketing himself as “Elite Images.”However, the evidence indicates that, as at January 17, 2021, there was a social media page with Mr. Bal’s photograph, above the name“Elite Images” indicating that he has more than 10,000 followers. When questioned about this, he said he does not know how to changethe name from “Elite Images” to his personal name. His response is hardly believable. He is a young, university-educated man, who hasgrown-up and worked in the age of social media. How can he not know or find out how to, or have someone else, make a profile change? (

d) When asked about the variations of the name “Elite Images” used in the Contract and why he did not sign the Contract, Mr. Balsaid he was on the understanding that EIP Ltd. was the entity that entered into the Contract with the Rais, and he does not know why hedid not sign the Contract. Then, he also said he did not sign the Contract because on the day he met with the Rais, they were in a rush,and they signed in the spot where he was supposed to sign. His explanation is hardly convincing. He appeared to be making up answersin the spur of the moment. (

e) Mr. Bal said he started EIP Ltd. in 2014. However, this is contrary to the corporate search report of EIP Ltd. in evidence, whichindicates that EIP Ltd. was incorporated on January 11, 2010. It shows Mr. Bal as the director and officer, with his address as theregistered and records offices of the corporation. This report also shows that the last annual report filed for EIP Ltd. was on January 11,2014. It is hard to believe that Mr. Bal did not know that he did not start EIP Ltd. in 2014, but that it had been in existence for a numberof years prior to 2014. (

f) Three months later, on the second day of the trial on April 12, 2021, Mr. Bal acknowledged that EIP Ltd. was incorporated onJanuary 11, 2010. He then went into a lengthy, bizarre explanation as to why the corporation was dissolved on June 28, 2016, includingthe fact that he got married and things in his life changed. The corporate records search report indicates that EIP Ltd. was dissolved forfailure to file annual reports. (

g) Mr. Bal said he was not sure whether there were other professional videographers or photographers at the Wedding Events. TheRais do not deny that Mr. Bal and/or his crew were at the Wedding Events. They also said that because of the exclusivity clause in theContract, they did not look for any other videographer or photographer. Therefore, if Mr. Bal and/or his crew were at the WeddingEvents, how could he not have known there were no other professional videographers or photographers? (

h) Mr. Bal repeatedly said that he asked the Rais for payment of the balance of the Contract price, on numerous occasions, from thedate of the wedding until January 2018. He said Ms. Rai told him that she was experiencing some financial difficulty, as she comes froma small family. However, Ms. Rai was not cross-examined on this point. Furthermore, the suggestion that Ms. Rai was under somefinancial stress is completely contradictory to Ms. Rai’s testimony, and other evidence, that the Rais planned a large wedding and spentabout $100,000 on it, and they also bought a house around the same time as their wedding.

In the context of the Rais’ ability to managethese large expenditures, to suggest that the Rais were avoiding paying the $3,500 balance outstanding on the Contract due to theirfinancial stress is hardly believable. There is documentary evidence, dated July 10, 2015, wherein Ms. Rai says that the Rais will pay thebalance as soon as they receive the outstanding Products. (

i) When asked whether Mr. Bal can, and why he has not, produced the emails and text messages he is alluding to, asking forpayment from the Rais, Mr. Bal said because the messages on the Rais’ phones are encrypted. This response is nonsensical. If he is theperson sending these messages, clearly he should be able to produce them from his devices, as the Rais have done with many of theirmessages to Mr. Bal. (

j) In terms of follow-up on the outstanding balance, Mr. Bal said he made numerous phone calls to the Rais, and asked Ms. Rai ateach of the Wedding Events, but that he “let it go after the events.” This is inconsistent with his own testimony that he followed up withthe Rais until January 2018. (

k) When cross-examined on why he is bringing up the issue of the outstanding balance on the Contract at trial for the first time, Mr.

Bal said he retained new counsel after he filed his Reply in this action, and learned that the limitation period had expired, and that is why he did not bring it up earlier. Again, this makes no sense. (

l) Mr. Bal testified that the wedding pictures were ready on the day of the wedding. However, in an email dated March 31, 2016 to Ms. Rai, Mr. Bal writes, “your order should be finished in the next couple of months.” Then, in a text message dated September 12, 2016, Mr. Bal writes, “Still editing videos and I’ll pop the pics online so you can select your favorites for the album soon.” Then, almost one and a half years later, in January 2018, Mr.

Bal in a message to the Rais writes, “Hey guys I do not work at elite images I will notify you when your order is ready I haven’t heard back yet.” This communication indicates that neither the wedding pictures nor the remaining part of the Rais’ order was ready as late as January 2018. (

m) When asked who was working on the Rais’ order in January 2018, Mr. Bal was evasive. He said employees at other companies were working on it, but would not name the companies. He said he was not sure which companies were involved. However, on the first day of the trial, he said he brought all of the photographs to court, and he was ready to hand them over to the Rais. If he did not know who was working on the Rais’ order, how did he get all the materials back? [ 31 ] Needless to say, Mr. Bal’s testimony was troubling in many respects. I found him to be a completely unreliable witness.

I reject his evidence, except to the extent it is consistent with the Rais’ or the documentary evidence. THE LAW Legislation [ 32 ] The relevant provisions of the Limitation Act are as follows: Basic limitation period 6

(1) Subject to this Act, a court proceeding in respect of a claim must not be commenced more than 2 years after the day on which the claim is discovered. General discovery rules 8 Except for those special situations referred to in sections 9 to 11, a claim is discovered by a person on the first day on which the person knew or reasonably ought to have known all of the following: (

a) that injury, loss or damage had occurred; (

b) that the injury, loss or damage was caused by or contributed to by

an act or omission; (

c) that the act or omission was that of the person against whom the claim is or may be made; (

d) that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage. Legal principles: [ 33 ] I have set out below the legal principles applicable to the circumstances in this case. They are from Halsbury’s Laws of Canada – Contracts (2021 Reissue) (Swan, Adamski). At p. 473: HCO-170 – Damages and the compensation principle Damages, or an award of money, are the basic remedy for breach of contract.

What constitutes the appropriate amount of damages to be awarded for a particular breach of contract is governed by the compensation principle. The compensation principle stipulates that the amount of damages awarded in such circumstances should be equal (so far as an amount of money can be) to what is required to compensate the innocent party for the loss it has suffered as a result of the breach. Thus, courts often say, the aim of damages is to put the innocent party in the same position it would have been had the contract been performed.

At pp. 477 to 478: HCO-171 – Extended damages “Extended damages” is not a precise term. At best, it refers to those damages awarded for losses that have not been traditionally understood to fall under the compensation principle. Two important classes of extended damages have come to be recognized: the “consumer surplus” and mental distress or lost enjoyment. Loss of enjoyment or peace of mind and mental distress While an award of damages for loss of enjoyment or mental distress flowing from a breach of contract is still exceptional, such damages have been recognized in several classes of cases.

The first class consists of cases in which the courts are prepared to hold that there was a promise that a promisee would either get enjoyment or peace of mind. At pp. 494: HCO-183 – Punitive damages

In exceptional cases, Canadian courts are prepared to award punitive damages for breach of contract. Punitive or exemplary damagesconsist of an amount of money that one party is ordered to pay to another not as compensation for the loss that party might have causedthe other but as punishment for the party’s behaviour. . . . Moreover, an award of punitive damages will require that the party seekingthem demonstrate that the other party had committed an independent actionable wrong. . . . Whiten test. [Whiten v.

Pilot Insurance Co., 2002 SCC 18]. . retribution, denunciation and deterrence are all recognized justifications forpunitive damages. . . . the award must be proportionate to the ends sought through an award of punitive damages. It must beproportionate with respect to (

i) the blameworthiness of the defendant’s conduct; (ii) the degree of vulnerability of the plaintiff; (iii) theharm or potential harm directed specifically at the plaintiff; (iv) the need for deterrence; and (

v) the advantage wrongfully gained by adefendant from the misconduct. It must also be proportionate, even after taking into account the other penalties, both civil and criminal,which have been or are likely to be inflicted on the defendant for the same misconduct. . . . [34] The Rais rely on the following cases: (

a) Klaus v. Taylhardat, 2007 BCPC 21 (“Klaus”); (

b) De Costa v. Banh, 2013 BCPC 366 (“De Costa”); (

c) Russell Vandiver Architects v. Pagebrook Group, 1983 CarswellBC 632; and (

d) Pelliccione v. John F. Hughes Contracting & Development Co., 2005 CarswellOnt. 4697 (“Pelliccione”). [35] Mr. Bal relies on one case: Gallen v. Butterley, (BC CA). DISCUSSION 1. Who is the proper defendant in this action – Mr. Bal or EIP Ltd.? [36] As I said earlier, the Contract that the Rais signed is an incomprehensible document. Mr. Bal said he obtained a template of thisdocument from The University of British Columbia, and adapted it to create the Contract.

All I will say is that he did not do a good job ofadapting a document originally drafted for a different context to suit the contractual arrangements intended between the parties in thisaction. I do not intend to discuss all that is wrong with the Contract. [37] The focus under the first issue is who are the parties to the Contract? There is no doubt that the Rais were one party. Thequestion is, with whom were they contracting? Their evidence is that they were contracting with the individual, Mr. Bal, doing businessas Elite Images. Mr.

Bal, on the other hand, says it was not him, as an individual, but his corporation, EIP Ltd., that was contracting withthe Rais. [38] Mr.

Bal’s counsel points out that EIP Ltd. was an active corporation at the time the parties entered into the Contract on June 22,2014, and that it was not dissolved until June 28, 2016. [39] The Contract contains the following references to the party providing the videography and photography services, which is thesubject matter of the Contract: On page 1, para. 1: This Contractual Agreement is made and entered into the 22 [nd] day of June, 2014 by Elite Images (hereinafter called “Author”),Between the Author and Raman Baddah and Raman Rai (hereinafter called “Client”), . . .

Throughout the rest of the Contract, pages 1 to 6: The term Author and the name “Elite Images Videography & Photography” are used interchangeably as the entity providing thevideography and photography services. On page 6, in the signature column, it states: Elite Images Videography & Photography [40] Mr. Bal argued that the Rais were aware that they were contracting with EIP Ltd. because the Brochure contains the name “EliteImage [P]roductions [L]td.” I note that this reference is at the very back fold of the Brochure.

On the front of the Brochure, right over theimage of a bride, it says “Elite Images” and contains the contact information for Elite Images. I also note that the Brochure was notattached as an appendix or

schedule to the Contract, or incorporated by reference into the Contract. The only reference in the Contract isthe term “Platinum” on page 5, under the heading “Breakdown of Fees and Payment Schedule.” There is no explanation in the Contractitself as to the meaning of the term “Platinum.” [41] In this respect, relying on Gallen, Mr.

Bal’s counsel submits that the Brochure should be incorporated into the Contract as anexception to the parol evidence rule. [42] The parol evidence rule, as the court in Gallen discussed, at paras. 33 and 36, “is not only a rule about the admissibility ofevidence . . . it reaches into questions of substantive law.” The court, at para. 34, said: The [parol] rule of evidence may be stated in this way: Subject to certain exceptions, when the parties to an agreement have apparentlyset down all its terms in a document, extrinsic evidence is not admissible to add to, subtract from, vary or contradict those terms. [43] The court goes on, at para. 35, to list the exceptions to the parol evidence rule, noting that it is not an exhaustive list.

[ 44 ] In this case, in light of my discussion below regarding the validity of the Contract, I do not find it necessary to consider the application of the exceptions to the parol evidence rule. [ 45 ] Next, I reject Mr. Bal’s contention that the Rais were aware that they were contracting with EIP Ltd. The evidence is clear that the Rais only dealt with Mr. Bal, and all marketing materials Mr.

Bal presented, including the Brochure, and any online platforms regarding the videography and photography services were in the name of “Elite Images.” In his email communications with the Rais, he represented himself as the “CEO” of Elite Images. The Contract also states “Elite Images” as the party contracting with the Rais. [ 46 ] There is no evidence that either of the names, “Elite Images” or “Elite Images Videography & Photography,” were a registered trade name or an incorporated entity’s name. [ 47 ] Furthermore, the evidence indicates that the Rais paid a total of $5,000 cash to Mr. Bal. While Mr.

Bal admits that he received this cash, he has not provided any evidence that these funds were deposited into EIP Ltd.’s account, as the rightful recipient, if EIP Ltd. was the contracting party. [ 48 ] As I mentioned earlier, Mr. Bal did not sign the Contract. I reject his explanation as to why he did not sign the Contract. He could have easily signed below where the Rais signed, but he did not. [ 49 ] As a university-educated, long-time professional, and businessperson, I find that Mr. Bal knew, or ought to have known, the importance and implications of having a valid contract. I find that Mr.

Bal deliberately used different names in his business dealings with the Rais, creating confusion and possibly a path for him to escape liability if necessary by obscuring the true identity of the contracting party. [ 50 ] Similar to Mr. Bal, the defendant in Pelliccione used various names, including corporate and non-corporate names, for his contracting work. The court, at para. 91 found that the defendant in that case, John F. Hughes, deliberately made a non-existent company a party to the contract with the plaintiffs, the Pellicciones. The court found Mr.

Hughes personally liable for the Pellicciones’ damages because Mr. Hughes had contracted in the name of a non-existent corporation. He treated that corporation as a sham, failed to carry out even the most obvious of corporate formalities, and intermingled the corporation’s affairs with his own to the point where he did not treat the corporation as a separate entity or recognize its separate existence. [ 51 ] In the case before me, there is no basis to find that EIP Ltd. was the other party to the Contract. Furthermore, as I said earlier, the Contract is flawed in so many respects, and it is not fully signed.

Fundamentally, there is confusion as to the following: (

a) the parties to the Contract, as I have discussed above; (

b) the subject matter of the Contract, being the Modified Platinum Package, is not spelled out in the Contract; (

c) the payment terms are internally contradictory, in that they say: (

i) the $1,500 payment is a non-refundable deposit, but it also says, it must be returned to the “Client” (meaning the Rais) if the “Author” (presumably meaning Elite Images), by the Author’s own default, fails to produce the “Work” (presumably meaning the Products); and (ii) the remaining balance (of $3,500) is due one month prior to the event (presumably meaning the wedding), but it also says, upon completion of the album, the Client has a maximum of 30 days to pay the remaining balance, otherwise a financing charge at 18.99% will accrue. (Incidentally, I note that the Contract says this financing charge will be charged on the full contract amount, and not just on the remaining balance, which makes no sense.) [ 52 ] For the reasons I have discussed, I find the Contract to be invalid and unenforceable. [ 53 ] However, in light of the evidence before me regarding the oral discussions between the Rais and Mr.

Bal, and their subsequent course of conduct (including partial performance of their oral agreement), I find that there was an oral agreement (the “Agreement”) between the Rais and Mr. Bal, doing business as Elite Images, with the following essential terms: (

a) Date of Agreement: June 22, 2014; (

b) Subject matter of Agreement: the Modified Platinum Package; (

c) Total price: $8,500; (

d) Estimated delivery time: within one year from the date of the wedding (that is, at the latest by June 25, 2016); and (

e) Exclusivity: Mr. Bal is to be the exclusive videographer and photographer at the Wedding Events. [ 54 ] I conclude that the proper defendant in this action is Mr. Bal, in his individual capacity, and not EIP Ltd. 2. Is the Rais’ claim statute-barred? [ 55 ] Mr. Bal submits that the Rais’ claim should be dismissed because the Rais did not bring this action within the two-year limitation period stipulated in s. 6(1) of the Limitation Act . [ 56 ] Mr.

Bal’s counsel, in his written submissions, makes the following perplexing statements: At para. 9: . . . the evidence does not suggest at all that the cause of action was confirmed by Bal. At para. 11: . . . the Rais did not confirm the cause of action.

[ 57 ] The Rais say that they discovered their claim on January 4, 2018, and, therefore, their claim is not statute-barred. [ 58 ] The parties entered into the Agreement on June 22, 2014, and the Rais filed their Notice of Claim on August 31, 2018. [ 59 ] For the sake of convenience, I repeat s. 8 of the Limitation Act, which sets out the discovery rules. General discovery rules 8 Except for those special situations referred to in sections 9 to 11, a claim is discovered by a person on the first day on which the person knew or reasonably ought to have known all of the following: (

a) that injury, loss or damage had occurred; (

b) that the injury, loss or damage was caused by or contributed to by

an act or omission; (

c) that the act or omission was that of the person against whom the claim is or may be made; (

d) that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage. [ 60 ] I find that the Rais discovered that they had a claim against Mr. Bal on or after January 4, 2018, for the following reasons: (

a) according to the terms of the Agreement, as I have found, Mr. Bal was to produce and deliver the Products at the latest by June 25, 2016; (

b) between the date of the wedding and January 4, 2018, Mr. Bal continued to promise the Rais that he would deliver the Products “shortly,” and they believed that he would; (

c) however, by January 4, 2018, the Rais started having concerns, as reflected in the following messages to Mr. Bal: (

i) Text message from Ms. Rai, dated January 2, 2018, 9:29 a.m., with confirmation that the recipient read the message at 12:15 p.m. that same day: Hi, you are not responding to our emails or messages. We need our wedding photos/video and a response back. (ii) Email from Ms. Rai, dated January 3, 2018, 1:27 p.m.: We have emailed numerous times and texted. We need response. Its been 2.5 years since our wedding and there has been no final product. You are ignoring our emails/texts. This is a horrible way to conduct business. (iii) Text message from Ms.

Rai, January 3, 2018, 1:39 p.m., with confirmation that the recipient read the message at 3:16 p.m. that same day: You are ignoring our emails/texts. This is a horrible way to conduct business. (iv) Exchange of text messages between Mr. Bal and Ms. Rai (likely on January 4, 2018): Mr. Bal, at 10:06 a.m.: Hey guys I do not work at elite images I will notify you when your order is ready I haven’t heard back yet. Ms. Rai, at 10:12 a.m.: Well who is this then? We need to talk to someone in charge. Saying you will notify us when the order is ready isn’t good enough. Ms.

Rai, at 10:15 a.m.: It has been years . . we are fed up. I need to talk to someone. We will not be sitting around waiting for a response. (

v) Exchange of text messages between Ms. Rai and Mr. Bal, (likely on January 5, 2018): Ms. Rai, at 10:03 a.m.: You haven’t given us proper answers or guidance. Fine you don’t work for elite . . are you going to be the middle man now until we receive our albums/video? You have to understand our frustration in all of this. You can’t just say hey I don’t work for elite and I’ll let you know when your stuff is ready. You had our personal irreplaceable family photos. Were those turned over to the new person in charge? When will we be getting those back? Mr. Bal, at 10:08 a.m.: Hopefully soon Raman I too am frustrated Mr. Bal, at 10:09 a.m.: And am helping do what I can

Ms. Rai, at 12:06 p.m.: When are we going to get a response back? Ms. Rai, at 12:19 p.m.: We don’t get any responses back from your website, messages, or calls. What is going on? Are we going to have to escalate and get lawyers involved? (

d) There is no other communication in evidence after the above exchange in early January 2018. (

e) Ms. Rai testified that by the first week of January 2018, the Rais knew that there was something wrong, as Mr. Bal was ignoring them and was not responsive to their enquiries about the delivery of the Products. By then, the Rais were anxious, under stress, and knew that they had to commence legal proceedings to deal with their loss. (

f) The emails in evidence indicate that the Rais retained counsel shortly thereafter and commenced these proceedings. [ 61 ] Since the Rais did not discover their claim at least until January 4, 2018, and they filed their Notice of Claim on August 31, 2018, I conclude that the Rais’ claim is not statute-barred. 3. Did Mr. Bal breach the agreement between the parties? [ 62 ] As I mentioned above, according to the terms of the Agreement, Mr. Bal was to produce and deliver the Products at the latest by June 25, 2016, but he did not, as the following communication between the parties indicates: (

a) From Ms. Rai to Mr. Bal, Mar. 22, 2016, 9:27 a.m.: Hi Aman, When will we receive our wedding albums and video? (

b) From Mr. Bal to Ms. Rai, Mar. 31, 2016, 3:28 p.m.: Hey Raman hope married life is going amazing your order should be finished in the next couple of months. (

c) From Ms. Rai to Mr. Bal, Apr. 4, 2016, 4:26 p.m.: Okay thank you. Could you please ensure “our story” gets into the video. (

d) From Mr. Rai to Mr. Bal, July 4, 2016, 10:49 a.m.: Hey Aman, it’s Kam Rai. Raman and I were wondering when our video and photography will be done. It has now been over a year. Please let us know. Thank you. (

e) From Mr. Bal to Mr. Rai, July 5, 2016, 11:09 a.m.: Hey guys it’s almost done with edits, will have them for you shortly, hope married has been amazing so far. (

f) From Mr. Rai to Mr. Bal, August 8, 2016, 1:25 p.m.: Hey Aman, it’s been over a month since I touched base with you in regards to our video and photography. Are there any updates on when they will be completed? Thanks. (

g) From Ms. Rai to Mr. Bal, September 2, 2016, 10:21 a.m.: Hi Aman We haven’t heard from you since March. Getting a little worried. How are things going? (

h) From Mr. Rai to Mr. Bal, September 12, 2016, 2:33 p.m.: Hey Aman, could you please let me know the status of our video and pictures? (

i) From Mr. Bal to Mr. Rai, September 12, 2016, 2:45 p.m.: Still editing videos and I’ll pop the pics online so you can select your favorites for the album soon. Sorry for the delay in responding I was in Europe. (

j) From Mr. Rai to Mr. Bal, September 13, 2016, 3:07 p.m.: Ok can you please let me know ASAP when the pictures are online (

k) From Ms. Rai to Mr. Bal, September 18, 2016, 10:51 a.m.: Hi Aman Kam just told me that we need to select photos soon? I thought you were close to being completed when we heard from you back in March. This is taking way too long. I know you said it will take up to a year but this is getting ridiculous if we still need to view/select our photos. [my emphasis]

(

l) From Mr. Bal to Ms. Rai, September 22, 2016, 11:04 p.m.: He Raman Ive uploaded your images please select your favorite 150 for the main album (

m) From Ms. Rai to Mr. Bal, October 16, 2016, 3:42 p.m.: Hi Aman So we went through the pictures, it wouldn’t allow me to select and save them . . . There were some pictures missing . . . How much longer are we looking at for everything to be finished? (

n) From Mr. Rai to Mr. Bal, December 9, 2016, 10:17 a.m.: Hi Aman, Kam Rai here. Been a long time since we heard back from you regarding pictures and video. Please give an update. Thanks. (

o) From Ms. Rai to Mr. Bal, December 30, 2016, 3:33 p.m.: Hi Aman How much longer are we looking at for completion? We’re getting restless now and have had no contact from you whatsoever. (

p) From Mr. Bal to Ms. Rai, January 6, 2017, 1:12 p.m.: Hey Raman sorry for the delay I was out of the country Here is your album let me know if it’s good to print Eliteimages.ca/kamramanalbum (

q) From Ms. Rai to Mr. Bal, Mar. 4, 2017, 3:59 p.m.: Hi Aman For Kam Parent album these are the pictures he has chosen: . . . For Ramans Parent album: . . . (

r) From Ms. Rai to Mr. Bal, Aug. 24, 2017, 1:27 p.m.: Hi When can we expect our wedding albums and videos? (

s) From Ms. Rai to Mr. Bal, Oct. 31, 2017, 10:46 a.m.: We have emailed numerous times and texted. We need response. Its been 2.5 years since our wedding and there has been no final product. (

t) Other messages during the first week of January 2018, as I have set out above. [ 63 ] In addition to the above communication, the Rais entered into evidence, various emails and text messages following up with Mr. Bal, on a regular basis, from March 2016 to January 2018. [ 64 ] The Rais submit that they followed up with Mr. Bal within a few weeks of the wedding and continued to do so until mid-2018. [ 65 ] Ms. Rai said, other than the few times Mr. Bal responded, the automatic response she would get to her emails to Mr.

Bal was: Thank you for your interest in Elite Images We will be responding to your request shortly Aman Bal CEO Elite Images Vancouver BC [ 66 ] Ms. Rai said occasionally, Mr. Bal would respond saying he would get back to the Rais “shortly” or some other comments indicating that he was still working on their order. Therefore, they believed that he was still working on their order. However, as time went by, they became increasingly anxious and concerned with Mr. Bal’s lack of response to their emails and text messages. [ 67 ] Ms.

Rai testified that when, on January 3, 2018, she did not receive an automatic message from Mr. Bal, as she usually does, in response to her email, she knew that “something was wrong.” Finally, on January 4, 2018, the Rais received a message from Mr. Bal stating that he longer worked at Elite Images and that someone else was working on their order. Ms. Rai said that Mr. Bal did not consult with the Rais, nor did they give consent, to transfer their order to someone else. Furthermore, in spite of the Rais’ request, Mr. Bal would not tell the Rais who would be completing their order. [ 68 ] Mr.

Rai testified that he understood Mr. Bal’s response “shortly” to mean about a year. The Rais expected their order to be completed within a year of their wedding because that is what Mr. Bal told them at the outset. He explained that even though Mr. Bal claims to have put the photographs in a virtual drop box, the Rais were not able to download the pictures. He said the first time they saw the actual pictures was when Mr. Bal’s counsel provided them to the Rais’ counsel at the Settlement Conference in this action.

[ 69 ] It is clear from the evidence that Mr. Bal did not respond to the Rais’ enquiries in a timely manner. When he did respond, he led them to believe that the completion of the Products was imminent. He even asked them to select photos for their albums, which they did more than once. However, he never produced any of the albums. Essentially, he strung the Rais along for more than three years, leading them to believe that they would get the Products imminently. [ 70 ] Mr.

Bal testified that on average, if a client has paid him in full one month in advance of a wedding event, it would take him about two to four weeks to produce the albums. Later in his testimony, he said his typical turnaround time is about six months to one year. In this case, he said he did not complete the Products, because, in spite of his repeated requests for payment of the outstanding balance of $3,500, the Rais never paid, and that their account went into bad debts. There is not a shred of evidence to support this assertion. [ 71 ] Mr.

Bal came up with a few more explanations for the delay, none of which is supported by the evidence. For example, he said once the initial takes are done, he has to wait for post-production to be done by others. At one point, he said the “employees” did not do a good job. When asked who these employees were, he was evasive. He said he does not know the names of the companies that employed the “employees” he was referring to. [ 72 ] He said the wedding pictures were available on the wedding day, he made the thank-you cards with those pictures, and they were also played at the reception.

He said by September 22 and 23, 2016, he provided access to the Rais to all the photographs he took at the Wedding Events, and they were able to download them. The Rais deny that they were able to download them. [ 73 ] Mr. Bal made an issue of the fact that he repeatedly asked the Rais to come to his home office, but that they never did. The Rais said that they did not want to go to Mr. Bal’s home because they did not want to be seen as “harassing” him. [ 74 ] In my view, none of Mr. Bal’s explanations is tenable. They can only be characterized as lame excuses.

He seemed to be literally making up these excuses in the spur of the moment on the stand. He has not produced any evidence to support any of these assertions, with the exception of the links he provided to the Rais to access the photographs, which they say they were not able to download. [ 75 ] In the end, the fact remains that Mr. Bal never completed and provided the final Products to the Rais. Mr. Bal admitted that the albums were not produced until January 2021. There were also deficiencies in Mr. Bal’s work, which I will discuss in more detail below. [ 76 ] Based on the evidence before me, I find that Mr.

Bal breached the Agreement. 4. If Mr. Bal breached the agreement between the parties, did the Rais suffer any damages arising from such breach? If they did, what damages are they entitled to? [ 77 ] The Rais submit that they suffered damages. They seek compensatory damages of $15,000 and punitive damages of $10,000. [ 78 ] Mr. Bal submits that the court should dismiss the Rais’ monetary claim, but if the court sees fit to award any damages, an appropriate amount is $2,500. [ 79 ] As I discuss below, there is no question that the Rais suffered damages, as a result of Mr. Bal’s breach of the Agreement.

Compensatory damages (

a) For items under the Agreement [ 80 ] The Rais testified that there were numerous deficiencies in Mr. Bal’s work. As early as about two weeks after the wedding, in an email to Mr. Bal, dated July 10, 2015, Ms. Rai writes: Hey Aman Finally we have settled down after the wedding week. There were a few things we were not happy about. 1) The most important was that “our story” was not played at the reception. I did not have time to view the cd when you gave it during the maiyan time. Why wasn’t it done?

We want it on our wedding video. 2) The 2 pictures we wanted blown up for the reception were the exact same picture. The ones we wanted were pics 16 and 70 from the selection you asked us to choose from. 3) The 20 pictures that we wanted for the guest book were not used nor edited further. We like your work but the lack of communication and mistakes have us very upset. We had been collecting pictures for a very long time to be played at our reception and it didn’t happen. There is a remainder of $3500 that we owe. We will pay that after we receive our albums and video.

I do not feel comfortable paying that remainder unless the work is done correctly. As mentioned in my previous email we wanted 2 parent albums which does not reflect in your contract. We need “our story” for the wedding video. Please let me know approximately how long this will take. Thank you. [ 81 ] In the ensuing five plus years, the Rais spent an inordinate amount of time and energy following up with Mr. Bal in an effort to get what they bargained for. [ 82 ] Even after the order that I made on the first day of the trial, deficiencies still exist. The Rais still have not received the Products.

Pursuant to my order, Ms. Rai, on behalf of the Rais, attended at Mr. Bal’s counsel’s office on January 15, 2021 and viewed the photographs on the Hard Drive, videos and photo albums that Mr. Bal had produced (the “Viewing”). The Viewing revealed the following deficiencies, as outlined in the Rais’ counsel’s letter dated January 18, 2021 to Mr. Bal’s counsel:

1. Mr. Rai’s parent album is missing photos of his paternal side. Photographs of members of his family from his paternal side were selected and provided to Mr. Bal previously, however, these were not included in Mr. Rai’s parent album. 2. The layout of the pictures in the main album is disappointing. Some of the pictures that have been blown up are blurry – for example, the picture on the first page of Mr. Rai and her mother is blurry and could have been replaced with another photograph. In addition, Mr. and Ms.

Rai did not select photographs where their eyes were closed, yet these have been included in the main album. 3. Some of the photographs are taken poorly – for example there are speakers in the way, the photographs are blurry, and some pictures include Mr. Bal’s staff in the photographs. 4. The Reception video is blurry when Mr. and Mrs. Rai walk in. 5. The song Mr. Bal used for Mr. and Ms. Rai’s story (slideshow of their photos) is not the song Mr. and Ms. Rai chose. 6. During Ms. Rai’s maiyan, the portion of the video filming the choora ceremony is quite dark. 7.

There is not a single video that compiles the highlights of all the events. Instead, there are four different videos. 8. The external hard drive is missing some pre-wedding pictures. For example, the picture of Mr. and Ms. Rai sitting on the bench in their casual clothes under the blossom trees and one of them leaning against the building in their casual clothes. [ 83 ] In response, Mr.

Bal’s counsel wrote to the Rais’ counsel on January 27, 2021, offering to address some of the concerns raised, and noting that the highlight video referenced in item 7 was not part of the package the parties agreed to, and that Mr. Bal is willing to provide the highlight video at an additional cost. [ 84 ] Even though Mr.

Bal says that he is willing to work with the Rais to complete the Products to the Rais’ satisfaction, the Rais, understandably, are not prepared to accept his gesture, as they have lost confidence in him in light of their negative experience with him for the past five plus years, particularly in light of his false promises. [ 85 ] The Rais have obtained an estimate of $7,000 from another videographer/photographer to edit the Wedding Events video footage, at a cost of $2,500, and to put together three photo albums (the main and two parent albums) at a cost of $1,500 each. [ 86 ] In keeping with the compensatory principle of damages, the aim of which is to put the innocent party in the same position that party would have been, had the contract been performed, I conclude that Mr.

Bal should pay the Rais $7,000 so that they can obtain those items, which Mr. Bal failed to provide under the Agreement. (

b) For mental distress [ 87 ] The Rais testified that they experienced significant mental distress due to Mr. Bal’s breach of the Agreement and his high-handed conduct. Their evidence in this respect is as follows: (

a) The Rais have known each other for many years, and they married the love of their lives. Their marriage was a one-time life event, as they do not see themselves getting married again. (

b) The Rais’ ethnicity is Indian (South Asian), and their heritage is Sikh. A wedding is a big and significant event in the Indian culture. As Ms. Rai put it, “it is a coming together of two families.” (

c) Ms. Rai was the first grandchild in her extended family, and Mr. Rai was the first son in his immediate family, to get married. Therefore, the wedding was a significant event not only in the Rais’ lives, but also in their parents’ lives. (

d) The Rais started planning their wedding more than a year in advance. They spent about $100,000 on their wedding. (

e) Even though the Rais’ wedding was a large wedding, not all family and friends the Rais would have liked to attend were able to attend due to distance or financial constraints. Therefore, the Rais were hoping to include those family and friends in the Rais’ wedding celebrations by sending them the videos and photos of the Wedding Events; however, they were not able to, due to Bal’s breach. (

f) The Rais were planning to have a “viewing party”, but they could not, as they did not receive the Products from Mr. Bal. The Rais and their parents were unable to share the videos and photographs with others. The Rais’ parents keep “harassing” the Rais for the videos and photographs. (

g) Ms. Rai’s grandmother attended some of the pre-wedding events, and had photographs taken with her children and grandchildren. The grandmother passed away in October 2018. If the photographs with the grandmother had been available, they would have been used at her funeral service, which would have helped the family in grieving the loss of the grandmother. (

h) Since the Rais’ wedding, other important events have occurred. The Rais bought a new house around the same time as the wedding. They now have two daughters aged four years and 18 months. The older child is the first grandchild on Ms. Rai’s side of the family. Ms. Rai wanted to recreate her childhood photographs with her daughters, but she was not able to, as Mr. Bal did not return the Childhood Photographs. The Rais were not able to put up their wedding photographs in their new house, or share them with their children, family or friends. (

i) The Rais’ siblings have since gotten married, and their siblings have their wedding photographs, whereas the Rais are still waiting for theirs almost six years after their wedding. (

j) The Rais were angry, frustrated, and stressed out from repeatedly following-up with Mr. Bal and yet not receiving the Products.

[88] Mr. Bal acknowledged that a wedding is a once-in-a-lifetime event, it takes considerable time to plan a wedding, and that for hisown wedding, he hired others to capture the events. However, he insisted that the main reason the Products were not completed was thatthe Rais did not pay the $3,500 outstanding balance, despite his numerous demands. He said he got the “run around” from the Rais andthat he got tired of “chasing them”. However, the Rais’ evidence was that Mr. Bal never asked them for the outstanding balance of$3,500.

They said he did ask for the second payment of $3,500, which they paid in June 2015. [89] As I have already discussed at some length, the evidence does not support Mr. Bal’s assertion in this respect. Neither is there anyreference in Mr.

Bal’s Reply to the Rais’ Notice of Claim about any non-payment. [90] The Rais’ counsel referred to paras. 6 and 7 in Klaus, wherein the court set out the law regarding compensation for mentaldistress: [6] The law regarding when a court can compensate someone for emotional stress or nervous shock as a tort is summarized by theauthor Philip Osborne in “The Law of Torts” 2000, Irwin Law Publishing, at page 75 as follows: “Nervous shock is defined as a severe emotional trauma that manifests itself in a physical disorder or in a recognized psychiatric illnesssuch as clinical depression or post-traumatic stress disorder.

It does not include emotional upset, mental distress, grief, sorrow, anxiety,worry, or other transient and more minor psychiatric injury.” [7] This description does not cover what has occurred here. However the law also permits recovery of damages for emotionaldistress resulting from the breach of a contract in limited circumstances. In Wharton v. Tom Harris Chevrolet Oldsmobile CadillacLtd. [2002] B.C.J. No. 233 (B.C.C.A.), the court set out these principles concerning when a court can award damages for mental distressresulting from the breach of a contract: (

a) A contract-breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension, or aggravationwhich the breach of contract may cause to the innocent party. (

b) The rule is not absolute. Where a major or important part of the contract is to give pleasure, relaxation or peace of mind, damageswill be awarded if the fruit of the contract is not provided or if the contrary result is instead procured. (

c) In cases not falling within the "peace of mind" category, damages are recoverable for inconvenience and discomfort caused by thebreach and the mental suffering directly related to that inconvenience and discomfort. However, the cause of the inconvenience ordiscomfort must be a sensory experience as opposed to mere disappointment that the contract has been broken.

If those effects areforeseeably suffered during a period when defects are repaired, they sound in damages even though the cost of repairs is not recoverableas such. [91] Klaus involved a breach of contract for wedding photography services and products. The defendant in that case promised todeliver the wedding photographs within six weeks, but gave the claimants the run-around for over a year, including causing the claimants“needless inconvenience in wasted trips to Vancouver” from Merritt on three separate occasions, before admitting that the photographshad been destroyed. The claimants were devastated.

They sued the defendant for return of the monies they paid to the defendant,damages for mental distress, and punitive damages totalling $25,000, plus their filing and service fees. [92] In determining the quantum of the damages, the court in Klaus reviewed a number of other similar cases at para. 11. At para. 12,the court said: [12] These cases illustrate the wide range of awards for this type of loss, spanning from nominal damages of a few hundred dollarsupwards to $10,000. I am mindful that, in Wilson v. Sooter Studios, supra, [Wilson v. Sooter Studios Ltd., [1988] B.C.J.

No. 2531 (B.C.C.A.)] and in Warrington v. Great West Life, supra, [Warrington v. Great-West Life Assurance Co., (BC CA), [1996]B.C.J. No. 1944 (B.C.

C.A.)] our Court of Appeal has set out the principle that courts should exercise caution in the awarding ofdamages for mental distress. [93] On the facts of Klaus, the court awarded a refund of the monies the claimants paid to the defendant, $7,500 for mental distress,$2,500 for punitive damages, and the claimants’ filing and service fees. [94] The Rais’ counsel also referred to De Costa. [95] De Costa involved a breach of contract for wedding videography services and products. The defendant promised to deliver thewedding video within six to nine months after the wedding, but never did.

The claimants continued to follow-up with the defendant formore than four years, without success. Then in 2012, they commenced proceedings in this court.

They sought the return of $1,320 theypaid to the defendant, $23,680 in damages for mental distress, their filing and service fees, and court-ordered interest. [96] On the facts of De Costa, the court awarded a refund of $1,320 the claimants paid to the defendant, $10,000 for mental distress,$2,500 for punitive damages, the claimants’ filing and service fees, and court-ordered interest from the date of the filing of the claim onSeptember 10, 2012. [97] In determining the quantum of damages, the court in De Costa reviewed a number of other cases, including Klaus, and at para.42 said: [42] The damage awards in such cases, as was noted by Judge Skilnick in Klaus, range from nominal to about $10,000.

In thecircumstances, I have taken into account: (

a) the efforts Ms. De Genova made, (

b) the fact she was basically led down the garden pathby Mr. Banh with all of his promises of “yes, I’ll get it to you,” “I’ll do this and that,” and (

c) the fact that Mr. Banh himself specificallyasked that no other people take videos or take photographs because it would affect the quality of the video he was taking. These are all,in my view, aggravating circumstances which I have considered in reaching my decision.

[ 98 ] The facts in De Costa are similar in many respects, to those in the case before me. [ 99 ] Mr. Bal’s counsel argued that De Costa and Klaus are distinguishable , in that the claimants in those cases did not receive any product, whereas, in Mr. Bal’s case, he completed the Products, as required by the “Contract,” on January 6, 2021, and the Rais were offered an opportunity to review the Products, but that they refused. He submits Mr.

Bal is still willing to deliver the Products to the Rais. [ 100 ] While I agree that the claimants in De Costa and Klaus did not receive any product, I disagree that in this case Mr. Bal completed the Products as agreed to between the parties. How could he have, if he only completed the Products on January 6, 2021, four and a half years later than when he should have?

Furthermore, as I have already discussed, the Products are still deficient. [ 101 ] Whatever photographs the Rais were able to view in September 2016 had watermarks on them, with the notation “Elite Images,” and the Rais were not able to download them. [ 102 ] The following excerpts from the Rais’ communication with Mr. Bal indicate the progression in the anger, frustration, and emotional stress the Rais were experiencing as a result of Mr. Bal’s conduct: Sept. 2, 2016 – We haven’t heard from you since March. Getting a little worried.

Sept. 18, 2016 – I know you said it will take up to a year but this is getting ridiculous . . . Dec. 30, 2016 – How much longer are we looking at for completion? We’re getting restless now and have had no contact from you whatsoever. Jan. 3, 2018 – You are ignoring our emails/texts. This is a horrible way to conduct business. Jan. 4, 2018 – Saying you will notify us when the order is ready isn’t good enough. Jan. 4, 2018 – It has been years . . we are fed up. Jan. 4, 2018 – You have to understand our frustration in all of this.

You can’t just say hey I don’t work for elite and I’ll let you know when your stuff is ready. [ 103 ] Mr. Bal argued that the Rais did not produce any medical evidence, such as clinical or counselling records, indicating that they suffered any “emotional toll.” There is no such requirement that I can discern from the cases submitted for my consideration.

In the context of this case, I do not find it necessary to require any medical evidence to substantiate the mental distress the Rais suffered. [ 104 ] On the strength of the Rais’ evidence, I am satisfied that the Rais have established, on a balance of probabilities, that they suffered mental distress due to Mr. Bal’s breach of the Agreement. They invested significant time and effort following-up with Mr. Bal. He was not only tardy in responding to the Rais’ queries and concerns, he was uncaring, insensitive and showed disregard for the frustrations the Rais were outwardly expressing to him in writing.

The Rais did not get what they bargained for. The Rais may be able to recreate videos and albums from the Raw Images. However, the length of delay (close to six years); the missed opportunity to share happy memories with their children, family and friends; the lack of peace of mind; and the agony they have had to endure is unconscionable, let alone the unwarranted expense they have been put to, to litigate this matter. [ 105 ] I find that the mental distress the Rais have suffered over the past six years is inescapable, and is a reasonably foreseeable consequence of Mr. Bal’s breach.

They diligently followed-up with Mr. Bal. They had no other reasonable way to mitigate their losses, since Mr. Bal was the exclusive videographer and photographer at the once-in-a-lifetime Wedding Events. [ 106 ] In awarding damages for mental distress, I keep in mind the British Columbia Court of Appeal’s direction in Wilson and Warrington to exercise caution. I also keep in mind the effect of inflation, as noted in para. 11(

a) of Klaus and as the Rais’ counsel pointed out that Klaus (2007) and De Costa (2013) are seven to 13 years old. [ 107 ] I n the circumstances of this case, I conclude that $10,000 is an appropriate measure of damages for the mental distress the Rais have suffered. Punitive damages [ 108 ] As I noted above, punitive damages are ordered, not as compensation for the loss that one party might have caused another party, but as punishment for the first party’s behaviour. The party seeking punitive damages has the onus of establishing that the other party has committed an independent actionable wrong. The damages awarded must be proportionate with respect to (

i) the blameworthiness of the defendant’s conduct; (ii) the degree of vulnerability of the plaintiff; (iii) the harm or potential harm directed specifically at the plaintiff; (iv) the need for deterrence; and (

v) the advantage wrongfully gained by a defendant from the misconduct. [ 109 ] The court in Klaus also sets out the law regarding punitive damages, at para. 8. [ 110 ] I am satisfied that the Rais have established, through their oral testimony and documentary evidence, that Mr. Bal’s behaviour was reprehensible, and that it is an independent actionable wrong, separate from the loss they have suffered as a result of Mr. Bal’s breach of the Agreement. [ 111 ] I will briefly discuss the factors I have taken into consideration in determining the quantum of the punitive damages in this case. Blameworthiness of Mr.

Bal’s conduct [ 112 ] Mr. Bal’s counsel argued that Klaus is distinguishable from this case, in that the moral culpability of the defendant in Klaus was

high, as he led the claimants in Klaus to believe the wedding photos existed, when in fact they did not, and caused the claimants to make three wasted trips from Merritt to Vancouver. He says no such aggravating factors exist in Mr. Bal’s case. I disagree that there are no aggravating factors in Mr. Bal’s case. [ 113 ] There are a number of aggravating factors respecting Mr. Bal’s conduct. Mr. Bal continued to mislead the Rais, for a number of years, into believing that he was actively working on their order, and that it would be completed imminently.

Two and a half years later, he told the Rais that he no longer worked for Elite Images. That in itself was untrue, as it was Mr. Bal who was operating, and marketing himself, as “Elite Images.” There is no evidence that he transferred his videography and photography business to anyone else. In spite of the Rais’ request, he did not provide any names of who took over the Rais’ order. He was also evasive in this respect during his testimony. All of a sudden in 2021, he claims to have all of the materials back and to have completed the Rais’ order.

Repeatedly, he was deceitful and insensitive to the concerns the Rais expressed to him. He had no regard for the safety of the Rais’ property, with the result that two of the Childhood Photographs have gone astray while in his possession. No amount of money can compensate the Rais for these lost original photographs. [ 114 ] I find Mr. Bal’s conduct towards the Rais highly blameworthy. [ 115 ] The evidence also raises concerns about Mr.

Bal’s questionable business practices – such as, his use of multiple corporate and non-corporate names, causing confusion in the minds of his clients; improper marketing; paying employees in cash; co-mingling his personal and business affairs; and not maintaining proper business records. The degree of vulnerability of the Rais [ 116 ] The wedding was an once-in-a-lifetime event for the Rais. It was very special not only to the Rais, but also to their parents and extended family. Mr. Bal imposed a condition that he be the exclusive photographer and videographer for the Wedding Events.

He also had the Rais’ original, irreplaceable Childhood Photographs. Therefore, the Rais were solely reliant on Mr. Bal to capture the memories of the Wedding Events so that they could share them with their children, parents, other family, and friends for years to come. I find that the Rais were highly vulnerable in the circumstances. The harm or potential harm directed at the Rais [ 117 ] The various communication between the parties that I have set out above clearly indicates that Mr. Bal was aware that the Rais were angry, frustrated and stressed out by Mr. Bal’s conduct, and yet Mr.

Bal did nothing to alleviate the Rais’ concerns. He continued to mislead them with his lame excuses, and escalated their anger, frustration and stress. [ 118 ] I find that Mr. Bal did harm the Rais. Advantage wrongfully gained by Mr. Bal from his misconduct [ 119 ] Mr. Bal had the benefit of the Rais’ funds, while the Rais were deprived of the enjoyment of the Products. The need for deterrence [ 120 ] In my view, in Mr. Bal’s case, the need for denunciation and deterrence, is a compelling factor for the following reasons. [ 121 ] The Rais are not the only people who have brought legal action against Mr.

Bal in this court. [ 122 ] Mr. Bal admitted to at least five other actions, between 2011 and 2019, in which he was named a defendant. Two of these cases, commenced in 2019, related to Mr. Bal’s videography and photography services (collectively, the “2019 Actions”). [ 123 ] The Rais’ counsel pointed out that Mr. Bal filed the same or similar Reply in this action, as he did in the 2019 Actions, without particularizing the facts in each case. She submitted that Mr.

Bal does not take this litigation seriously, as he has filed a “boilerplate” Reply, and has only produced two documents to support his version of events. [ 124 ] In response, Mr. Bal’s counsel submitted that Mr. Bal does take this litigation seriously, and that he worked with the claimants in the 2019 Actions to resolve those claims. [ 125 ] Mr. Bal proudly testified that the 2019 Actions were settled, one on the day of the trial and the other before a trial.

On the first and second day of this trial, he indicated that he would be willing to settle with the Rais, but the Rais refused, as I mentioned earlier. [ 126 ] All of the evidence in this case, including Mr. Bal’s slippery testimony, leads me to the inescapable inference that Mr. Bal’s behaviour is almost a modus operandi for Mr. Bal’s business – a pattern of deceitful behaviour that frustrates innocent people to the extreme that they just give up and walk away with whatever they can get back from Mr. Bal. I have no doubt Mr.

Bal was hoping that the Rais would also cave and walk away with whatever he offered them. Obviously, that did not happen. [ 127 ] The court must denounce such behaviour, and deter Mr. Bal from further victimizing others from his unsavoury business practices. [ 128 ] As the court in Voss v. Crooks , 2002 BCPC 3 (referenced at para. 8 in Klaus ) said: (

c) nominal damages would be an invitation to violate property rights and amount to a license fee, and as such, a substantial amount for punitive damages should be considered. [ 129 ] I am of the view that a nominal amount of punitive damages in this case is not sufficient. I conclude that $5,000 is an appropriate award.

CONCLUSION [ 130 ] A

summary of my conclusions is as follows: (

a) Mr. Bal, in his personal capacity, is the proper Defendant in this action. (

b) The Rais’ claim is not statute-barred. (

c) Mr. Bal breached the Agreement. (

d) The Rais suffered damages arising from Mr. Bal’s breach of the Agreement. (

e) The Rais are entitled to the following damages: i. Compensatory damages in the amount of $17,000, comprising: a. $7,000 to replace the items Mr. Bal failed to deliver under the Agreement; and b. $10,000 for mental distress; and ii. Punitive damages in the amount of $5,000. ORDERS [ 131 ] I order as follows: (

a) Mr. Bal must deliver to the Rais, by June 30, 2021, the following: i. all Childhood Photographs not already delivered to the Rais, including digital copies of such photographs; ii. the Hard Drive, including all photographs of the Wedding Events; and iii. the Raw Images. (

b) Mr. Bal must deliver to the Rais, by July 30, 2021, a certified cheque or bank draft, made payable to the Rais, in the amount of $22,236, comprising the following: i. $7,000 to replace the items Mr. Bal failed to deliver under the Agreement; ii. $10,000 for mental distress; iii. $5,000 for punitive damages; and iv. costs of $236 for filing and service fees, pursuant to Rule 20(2) of the Small Claims Rules , B.C. Reg. 261/93 . By the Court, _____________________________ The Honourable Judge V. Chettiar Provincial Court of British Columbia