Ross v. Parihar, 2021 BCPC 96

Citation: Ross v. Parihar 2021 BCPC 96 Date: 20210308 File No: C-85025 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Court BETWEEN: JONATHON DAVID ROSS CLAIMANT/RESPONDENT AND: GURMINDER SINGH PARIHAR DEFENDANT/APPLICANT RULING ON APPLICATION OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Claimant: Heather Mathison Counsel for the Defendant: Michael Boulet Place of Hearing: Surrey , B.C. Dates of Hearing: January 17, 2020 and February 8, 2021 Date of Ruling: March 8, 2021

INTRODUCTION [ 1 ] This is an application to dismiss Mr. Ross’s claim, with costs, on the basis that it is statute-barred. [ 2 ] On May 3, 2019, Mr. Ross filed a claim against Mr. Parihar and the BC Liberal Party (the “BCLP”) for fees owed to him for certain services he provided to Mr. Parihar in 2017 (the “Debt”). [ 3 ] After some failed efforts to collect payment of the Debt, Mr. Ross sent an email to Mr. Parihar on April 17, 2017 demanding payment of the Debt by close of business on April 19, 2017. Mr. Parihar did not pay the Debt. [ 4 ] On December 24, 2019, both Mr. Parihar and the BCLP filed separate applications to dismiss Mr. Ross’s claim on the following basis: (

a) pursuant to s. 14 of the Limitation Act , SBC 2012, c. 13 (the “ Act ”), Mr. Ross’s claim for the Debt was discovered on April 19, 2017, because Mr. Parihar did not pay the Debt by April 19, 2017, as demanded by Mr. Ross on April 17, 2017; and (

b) contrary to s. 6(1) of the Act , Mr. Ross commenced this action on May 3, 2019, which is more than two years after April 19, 2017, when his claim was discovered. [ 5 ] Mr. Ross does not dispute that he demanded payment of the Debt on April 17, 2017. However, he says that he continued to demand payment, and was led to believe, in his ongoing communication with Mr. Parihar and a few other persons associated with the BCLP (the “Campaign Workers”), between April 17, 2017 and May 3, 2017, that payment of the Debt was forthcoming. [ 6 ] Mr.

Ross submits that this ongoing communication, including promises of payment and Mr. Parihar’s repeated assurances to Mr. Ross that the payment was coming from the BCLP, are all a part of a chain of communication up to and including May 3, 2017 that acknowledges liability for the Debt. [ 7 ] Accordingly, Mr.

Ross submits that s. 24 of the Act applies to his circumstances to extend the expiry of the two-year limitation period from April 19, 2019 to May 3, 2019, and that he filed his claim within the limitation period on May 3, 2019. [ 8 ] On January 17, 2020, the hearing of the applications commenced before me, but it did not conclude that day. The continuation was scheduled for February 8, 2021. [ 9 ] However, on October 23, 2020, Mr. Ross filed a Notice of Withdrawal of his claim against the BCLP. [ 10 ] Therefore, only Mr. Parihar’s application remains to be determined, and my discussion below will only address Mr.

Parihar’s application. EVIDENCE AND RELEVANT FACTS [ 11 ] The parties filed, and rely, on the following Affidavits: (

a) Affidavit #1 of Mr. Ross, sworn January 10, 2021 and filed January 11, 2021; (

b) Affidavit #1 of Mr. Parihar, sworn and filed December 24, 2019; (

c) Affidavit #1 of Kevin Tang, sworn December 21, 2019 and filed December 24, 2019; (

d) Affidavit #1 of Azadeh Homami, sworn January 1, 2020 and filed January 3, 2020; and (

e) Affidavit #1 of Paramvir Singh Bains, sworn January 2, 2020 and filed January 3, 2020. [ 12 ] I note that Mr. Parihar did not respond to Mr. Ross’s Affidavit of January 10, 2021. Since Mr. Parihar’s counsel also did not raise any issues at the hearing, I take it that Mr. Parihar is not refuting anything contained in Mr. Ross’s Affidavit. [ 13 ] From the filed Affidavits, I have set out below, for context, some undisputed facts relevant to this application: (

a) Mr. Ross is a political consultant with 20 years’ experience providing various services to candidates running for municipal, provincial, and federal office, during their nomination and election phases. (

b) In May 2016, Mr. Parihar told Mr. Ross that he intended to run as a BCLP candidate in the 2017 British Columbia provincial election. (

c) In 2016 and early 2017, Mr. Ross provided some services, including social media services and policy briefings, to Mr. Parihar in preparation for his nomination and the election. Mr. Ross also provided some services to Mr. Parihar’s private business. Mr. Parihar paid Mr. Ross for these services. (

d) In February 2017, Mr. Parihar and Mr. Ross entered into a verbal agreement, the essential terms of which are as follows: (

i) Mr. Ross would provide political communication services, policy briefings, strategizing, promotional materials, social media services, graphic design, video production services, media training, and other related services (collectively, the “Services”) to Mr. Parihar, leading up to and including his nomination as a candidate for the BCLP and, if nominated, continuing through to the election; (ii) In consideration for the Services, Mr. Parihar would pay to Mr. Ross $16,000 plus GST, totaling $16,800. This was comprised of the

following: i. a monthly fee of $3,000 plus GST for Mr. Ross’s work from January 1, 2017 through to the writ call and the election; and ii. the balance to cover subcontractors’ costs, such as updating social media, film videos, and graphic design. (iii) The bulk of Mr. Ross’s Services was to be provided after Mr. Parihar won the BC Liberal nomination. (iv) Mr. Ross was to render only one invoice for the total amount of the Services on the date of the writ call, as Mr. Parihar could not raise funds for his campaign until he was an official candidate, and once nominated, the BCLP would pay his invoice from campaign funds. (

v) If Mr. Parihar did not win the BC Liberal nomination, the parties’ contract would end, and Mr. Parihar would pay Mr. Ross’s invoice for the Services provided to the date of the nomination from Mr. Parihar’s own funds. (

e) On March 4, 2017, Mr. Parihar won the BC Liberal nomination for Surrey-Newton. (

f) Mr. Ross provided the bulk of the Services after Mr. Parihar’s nomination. (

g) On March 28, 2017, Mr. Ross sent a basic invoice for $10,500 to Mr. Parihar for the Services he provided to Mr. Parihar. (

h) On April 8, 2017, Mr. Ross sent to Mr. Parihar a detailed invoice for $10,500 for the Services he provided to Mr. Parihar from January 1, 2017 to April 8, 2017 (the “Invoice”). (

i) On April 11, 2017, the writ was dropped, and on May 9, 2017, the election was held. (

j) From April 11, 2017 onwards, Mr. Ross regularly communicated with Mr. Parihar by text message, phone and email regarding payment of the Invoice. (

k) After some tense communication, Mr. Ross, on April 14, 2017, sent Mr. Parihar the candidate’s video that Mr. Ross produced, adding a watermark, and again requesting payment of the Invoice. (

l) On April 15, 2017, Mr. Parihar responded by email, “Check is coming from the party as money is with them.” (

m) However, neither Mr. Parihar nor the BCLP paid the Invoice. (

n) On April 17, 2017, Mr. Ross emailed Mr. Parihar stating that he could not continue to provide Services to Mr. Parihar, and once again requested payment of the Invoice by close of business on April 19, 2017. (

o) On April 17, 2017, Mr. Ross sent a lengthy text message to Mr. Parihar offering to sit down, be reasonable, and settle the matter, to which Mr. Parihar responded the same day, “I never said once that you will not be paid.” (

p) On April 29, 2017, Mr. Parihar sent a text message to Mr. Ross stating, “Call Monday re your pending work and invoice. I texted you on April 17 but you haven’t responded, I guess you don’t want to settle the matter.” [ 14 ] Between April 30, 2017 and May 3, 2017, there was further communication among Mr. Ross, Mr. Parihar, and other BCLP Campaign Workers regarding payment of the Invoice. I will refer to this communication in more detail in my discussion. ISSUES [ 15 ] The issues to be determined in this application are as follows: (

a) Was there an acknowledgement of liability by, or on behalf of, Mr. Parihar, pursuant to s. 24 of the Act , thereby extending the expiry of the limitation period from April 19, 2019 to May 3, 2019? In this analysis, the following questions must also be answered: (

i) Was the acknowledgement in writing? (ii) Was the acknowledgement signed by electronic signature within the meaning of the Electronic Transactions Act , SBC 2001, c. 10 (the “ ETA ”)? (iii) Was the acknowledgement made by Mr. Parihar or his agent? and (iv) Was the acknowledgement made to Mr. Ross? (

b) Did Mr. Ross file his action within the limitation period? THE LAW Legislation Limitation Act [ 16 ] The following provisions of the Act are relevant to this application.

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. Discovery rule for claims for demand obligations 14 A claim for a demand obligation is discovered on the first day that there is a failure to perform the obligation after a demand for the performance has been made. Limitation periods extended if liability acknowledged 24

(1) If, before the expiry of either of the limitation periods that, under this Act , apply to a claim, a person acknowledges liability in respect of the claim, (

a) the claim must not be considered to have been discovered on any day earlier than the day on which the acknowledgement is made, and (

b) the act or omission on which the claim is based is deemed to have taken place on the day on which the acknowledgement is made. . . . (6) Subsection (1) does not apply to an acknowledgement, other than an acknowledgement referred to in subsection (7), (8) or (9), unless the acknowledgement is (

a) in writing, (

b) signed, by hand or by electronic signature within the meaning of the Electronic Transactions Act , (

c) made by the person making the acknowledgement or the person's agent, and (

d) made to the person with the claim, the person's agent or an official receiver or trustee acting under the Bankruptcy and Indebtedness Act (Canada). . . .

(10) This

section applies to an acknowledgement of liability in respect of a claim for payment of a liquidated sum even though the person making the acknowledgement refuses or does not promise to pay the sum or the balance of the sum still owing. Electronic Transactions Act , SBC 2001, c. 10

Definitions 1 In this Act : "electronic" means created, recorded, transmitted or stored in digital or other intangible form by electronic, magnetic or optical means or by any other similar means; "electronic agent" means a computer program, or other electronic means, used to initiate an activity or to respond to electronic information, records or activities in whole or in part without review by an individual at the time of the response or activity; "electronic signature" means information in electronic form that a person has created or adopted in order to sign a record and that is in, attached to or associated with the record.

Legal recognition 3 Information or a record to which this Act applies must not be denied legal effect or enforceability solely by reason that it is in electronic form. Requirement for a record to be in writing 5 A requirement under law that a record be in writing is satisfied if the record is

(

a) in electronic form, and (

b) accessible in a manner usable for subsequent reference. Requirement to provide information or a record to be in writing 6 A requirement under law that a person provide information or a record in writing to another person is satisfied if the personprovides the information or record in electronic form and the information or record is (

a) accessible by the other person in a manner usable for subsequent reference, and (

b) capable of being retained by the other person in a manner usable for subsequent reference. Signatures 11

(1) If there is a requirement under law for the signature of a person, that requirement is satisfied by an electronic signature. Caselaw [17] Mr. Ross relies on the following cases: • Johal v. Nordio, 2017 BCSC 1129 (“Johal”); • I.D.H. Diamonds NV v. Embee Diamond Technologies Inc., 2017 SKQB 79 (“I.D.H. Diamonds”); • Podovinikoff v. Montgomery, (BC CA) (“Podovinikoff”); • Trombley v. Pannu, 2016 BCCA 324 (“Trombley”); • Ryan v. Moore, 2005 SCC 38 (“Ryan”); • Price Security Holdings Inc. v. Klompas & Rothwell, 2018 BCSC 129 (“Price Security”); • Keddie v.

Canada Life Assurance Co., 1999 BCCA 541 (“Keddie”); • Rafieyan v. Coquitlam et al., 2013 BCPC 185; • Wood and Lauder et al. v. Siwak et al., 2000 BCSC 397; and • Edgar v. The British Columbia Institute of Technology, 2015 BCSC 710. [18] Mr. Parihar relies on the following cases: • Trombley v. Pannu, 2016 BCCA 324; and • Bellamy v. Ward, 2011 BCSC 551. [19] I have reviewed all of these cases. However, I will only refer to a few that are pertinent to my discussion. DISCUSSION Acknowledgement of liability [20] Sections 24(1)(

a) and (

b) of the Act state that if, before the expiry of either of the limitation periods that, under the Act, apply to aclaim, a person acknowledges liability in respect of the claim, the claim is deemed to have been discovered, and the act or omission onwhich the claim is based is deemed to have taken place, on the day of the acknowledgement. [21] Mr. Ross relies on the following chain of communication in support of his submission that Mr. Parihar acknowledged someliability to him for the Debt by promising payment, and repeatedly directing him to the BCLP for payment: (

a) April 13, 2017 – text message exchange between Mr. Ross and Mr. Parihar: (

i) Mr. Parihar asks Mr. Ross to deliver the candidate video that Mr. Ross produced, and Mr. Ross asks, “Where is my cheque?” Mr.Parihar responds, “Cheque is gold after video” – suggesting that Mr. Parihar would pay Mr. Ross if Mr. Ross sent him the candidatevideo Mr. Ross produced. (ii) Mr. Ross requests Mr. Parihar to submit the Invoice to the BCLP for payment, and to show him a copy of Mr. Parihar’s email tothe BCLP. Mr. Parihar responds, “No email till I see the product.” (iii) Mr. Ross agrees to send the candidate video with a watermark on it, and says if Mr.

Parihar is satisfied, he will remove thewatermark, and the Invoice be submitted to the BCLP for payment. Mr. Parihar responds, “When I have not paid you.” (

b) April 14 and 15, 2017 – email exchange between Mr. Ross and Mr. Parihar: (

i) April 14, 2017 – after sending the candidate video, Mr. Ross writes:

Actually I just found out that you can just cut a cheque from the campaign account because it no longer has to go through the party. So let me know when we can settle up. (ii) April 15, 2017 – Mr. Parihar responds: Cheque is coming from the party as money is with them. (

c) April 16 and 17, 2017 – text message exchange between Mr. Parihar and Mr. Ross: (

i) April 16, 2017 – Mr. Parihar says, “Call me today if you want to settle.” (ii) April 17, 2017, 10:22 am – Mr. Ross, in part, says, “I am willing to have a sit down with you either today or tomorrow to settle all of this.” (iii) April 17, 2017 – Mr. Parihar, in part, responds, “I never said once that you will not be paid.” (

d) April 17, 2017, 11:44 a.m. – Mr. Ross sends a lengthy email to Mr. Parihar, including the following passage: Please be advised that if I do not receive the outstanding amounts by close of business (5 pm) on April 19, 2017 I will shut down the Facebook page, Twitter account, and all registered internet domains that we created and currently manage on your behalf. Please be advised that I will also file a legal action in the Small Claims Court of British Columbia for the outstanding amounts. (

e) April 17, 2017, 11:06 p.m. – Mr. Parihar texts Mr. Ross, “Call me in the morning.” (

f) April 29, 2017, 9:13 p.m. – Mr. Parihar texts Mr. Ross: Call Monday re your pending work and invoice. I texted you on April 17 but you haven’t responded, I guess you don’t want to settle the matter. (

g) May 1, 2017 – after attempting to reach Mr. Parihar on April 30, 2017, Mr. Ross texts Mr. Parihar: I called as asked and no answer. I will have to tell my lawyer to proceed with filing in Small Claims as I mentioned previously. If you would like to further communicate beforehand, you can do so [b]y emailing me at . . . to which Mr. Parihar responds: I was in meetings this morning. Call you when done. I need meeting. (

h) May 1, 2017 – further text message exchange between Mr. Ross and Mr. Parihar ensues with Mr. Parihar saying: Where is the product you are charging me for? You have to give me when we meet. (

i) May 1, 2017, 4:36 p.m. – Mr. Ross emails Mr. Parihar outlining the proposal for how the products he created be exchanged for payment of the Invoice. The subject line of this email reads, “To confirm our phone conversation that just happened.” (

j) May 1 and 2, 2017 – Mr. Parihar and Mr. Ross exchange text messages trying to connect with each other. Mr. Ross, in his text message on May 2, 2017, at 7:08 a.m., says, in part: Interac money transfer via email will work. You can do it when I am sitting in front of party people. (

k) May 3, 2017, 10:12 a.m. – text message exchange between Mr. Ross and Mr. Parihar: Mr. Ross: Guess I will now have to call the party directly. Mr. Parihar: The party is contacting you today. (

l) May 3, 2017, 10:30 a.m. – Mr. Ross first reaches out to Mr. Emile Scheffel of the BCLP, as Mr. Ross has had prior communication with Mr. Scheffel on other matters relating to the campaign. Mr. Scheffel directs Mr. Ross to contact Mr. Kevin Tang, the BCLP’s Controller. (

m) May 3, 2017, 12:44 p.m. – Mr. Ross emails Mr. Tang, copying Mr. Parihar on this email. Mr. Ross writes: Kevin, I have been advised by Gurminder Parihar (who I am copying on this email) that the party is going to be handing over a cheque to me today as well as downloading a bunch of materials I have for the campaign including a video and a bunch of graphics. Can you please let [me] know when this [is] happening? . . . (

n) May 3, 2017, 12:58 p.m. – since Mr. Ross had not heard from the BCLP as Mr. Parihar indicated earlier that morning, Mr. Ross texts Mr. Parihar, “Nothing.”

(

o) May 3, 2017, 12:44 p.m. to 1:45 p.m. – email exchanges between Mr. Tang and Mr. Bains, who was Mr. Parihar’s campaign manager, with copies to two other Campaign Workers, Mani Fallon and Mark Robertson, wherein Mr. Bains says: Mr. Ross needs to submit a detailed invoice to you in order to review it. Once he does that, we can discuss it further. (

p) May 3, 2017, 1:48 p.m. – Mr. Tang emails Mr. Ross: Hi Jonathan, I spoke with the campaign manager and we’ll need a detailed invoice before we can issue payment. (

q) May 3, 2017, 2:30 p.m. – Mr. Ross sends the detailed Invoice to Mr. Tang. (

r) May 3, 2017, 2:46 p.m. – Mr. Tang emails Mr. Bains, with a copy to Mani Fallon and Mr. Ross, and says: Parm and Mani, Please find attached invoice from Mr. Ross. He is hoping to pick up payment today, so please let me know as soon as possible if this is good to go. Jonathan, once I receive the go ahead, we’ll process the cheque for your pick up. (

s) May 3, 2017, 6:17 p.m. – Presumably not having heard from Mr. Parihar or the BCLP, Mr. Ross texts Mr. Parihar: You are not a man of honour. . . . I’m going to file in court. [ 22 ] Mr. Parihar submits that none of the communication between April 19, 2017 and May 3, 2017, among himself, Mr. Ross and the Campaign Workers amounts to an acknowledgement of any liability on his part to Mr. Ross for the Debt. [ 23 ] He says there was an ongoing dispute between him and Mr. Ross as to the extent of the Services provided and what amount, if any, was owed to Mr. Ross for such Services. [ 24 ] He says by Mr.

Tang’s emails on May 3, 2017, Mr. Ross was aware that Mr. Tang was the person to process the payment, but not to authorize it. That is why Mr. Tang was seeking approval from Mr. Bains, and Mr. Bains instructed Mr. Tang to get a detailed invoice so that they can discuss it further. [ 25 ] As I will discuss below, I am of the view that the evidence does not entirely support Mr.

Parihar’s arguments. [ 26 ] The parties agree that the legal test for determining whether a written communication contains an acknowledgement of liability sufficient to extend a limitation period is, whether, objectively construed, the party who made the communication intended to admit some liability: Price Security , para. 114 , referring to Trombley , para. 28 . [ 27 ] In Trombley , the BC Court of Appeal, concluded that the trial judge correctly applied the seminal decision of Ryan , and the objective test of whether a reasonable person in the context in which a letter was written would interpret the words and actions of the parties as an acknowledgement of some liability (paras. 18 and 30).

The court said, “Ryan sets out the central question in each case is whether, objectively construed, the party who made the communication intended to admit some liability” (para. 28). [ 28 ] Whether or not there is acknowledgement of some liability in any particular case depends on the factual circumstances of that particular case. [ 29 ] Here, the context includes Mr. Parihar making repeated verbal and written assurances to Mr. Ross that Mr. Parihar will pay Mr. Ross for the Services, and the BCLP will issue payment on his behalf. [ 30 ] The following words of Mr. Parihar appear to be a clear indication of Mr.

Parihar’s intention to pay Mr. Ross for the Services: • Cheque is gold after video • When I have not paid you • Cheque is coming from the party as money is with them • Call me today if you want to settle • I never said once that you will not be paid • Call Monday re your pending work and invoice • The party is contacting you today [ 31 ] At no point in Mr. Parihar’s communications with Mr. Ross did Mr. Parihar raise any objection to Mr. Ross’s Invoice. In fact, he said to Mr. Ross, “I never said once that you will not be paid.” This clearly suggests that Mr. Parihar received some Services from Mr.

Ross and that he will pay Mr. Ross for those Services. [ 32 ] As late as May 3, 2017, Mr. Parihar writes to Mr. Ross, “the party is contacting you today.” He made this statement in the context of his various communications with Mr. Ross in the preceding few days about wanting a meeting with Mr. Ross to receive the

“product” and “settle the matter”, and how that delivery and payment would take place. [ 33 ] On May 3, 2017, when Mr. Ross emailed Mr. Tang, “Kevin, I have been advised by Gurminder Parihar (who I am copying on this email) that the party is going to be handing over a cheque to me today,” Mr. Parihar did not raise any objection to the payment of the Invoice. He remained silent, and allowed the BCLP payment process to take place, consistent with his repeated verbal and written assurances to Mr.

Ross that the BCLP would pay the Invoice. [ 34 ] The evidence indicates that the BCLP was responsible for receiving, holding, paying expenses on behalf of each candidate, including Mr. Parihar, and accounting for the funds in each candidate riding association bank account. In other words, the BCLP controlled the campaign funds. [ 35 ] Mr.

Tang states in his Affidavit that his “role involves issuing payments to various parties when they render their invoices.” He also states, after being satisfied of the propriety of the invoices he receives, he would issue cheques from the riding association’s bank account. [ 36 ] The communication on May 3, 2017 between Mr. Ross and the Campaign Workers indicates the steps Mr. Tang took in processing payment of the Invoice, on behalf of Mr. Parihar. [ 37 ] Mr. Tang’s May 3, 2017 emails indicate that Mr. Tang, as Controller of the BCLP: (

a) had authority, on behalf of Mr. Parihar, to deal with the payment of the Invoice, including communicating with Mr. Ross (if he did not have such authority, he would not have written to Mr. Ross, “we’ll need a detailed invoice before we can issue payment”); (

b) acknowledged that Mr. Parihar owed some liability to Mr. Ross for the Services outlined in the Invoice (as there is no evidence that Mr. Parihar denied or disputed any liability to Mr. Ross for the Services); and (

c) would process the cheque for Mr. Ross’s pick-up once he receives confirmation from the campaign manager. [ 38 ] Applying the Ryan objective test to the circumstances in this case, there can be no doubt that a reasonable person, in the context in which Mr. Parihar’s May 3, 2017 text message and Mr. Tang’s May 3, 2017 emails were written, would interpret the words and actions of the parties as an acknowledgement of some liability. [ 39 ] Objectively construed, I find that Mr. Parihar intended to admit some liability to Mr. Ross for the Debt, and Mr. Tang, as Controller of the BCLP who was Mr.

Parihar’s agent (I will discuss the agency issue in more detail below), confirmed that admission to Mr. Ross by taking the steps he did to process the payment of the Invoice. [ 40 ] If Mr. Parihar did not intend to admit any liability, a reasonable person would expect him to have said so, and stopped the payment process. However, the evidence is clear that he did not do that. I infer that Mr. Parihar authorized the BCLP to pay the Invoice on his behalf, and expected that the BCLP would issue a cheque to Mr. Ross in the normal course. [ 41 ] As I said earlier, Mr.

Parihar argued that there was an ongoing dispute between him and Mr. Ross regarding the Services, Mr. Bains had not approved the Invoice for payment, and Mr. Tang did not promise payment, but said that he needed to check with the campaign manager before issuing payment. [ 42 ] On the issue of payment, Mr. Ross points to s. 24(10) of the Act . This

section states that it applies to an acknowledgement of liability in respect of a claim for payment of a liquidated sum, even though the person making the acknowledgement refuses or does not promise to pay the sum or the balance of the sum still owing. [ 43 ] I agree with Mr. Ross that the fact that Mr. Tang did not promise payment or reference an amount as owing, is fatal to a finding of acknowledgement of some liability in the circumstances of his case. [ 44 ] Even though there may still be a dispute between the parties with respect to the actual payment of the Invoice, it does not alter the fact that Mr.

Parihar, and the BCLP, through Mr. Tang, acknowledged some liability on behalf of Mr. Parihar. [ 45 ] Also in support of my finding is the communication between Mr. Parihar and Mr. Ross regarding their expressed desire to “settle the matter”. Mr. Ross points out that none of the communication to him was written “without prejudice”. [ 46 ] I am cognizant that not all settlement discussions constitute an acknowledgement of liability. In Trombley , the BC Court of Appeal, at paras. 32 and 33, said: [32] . . .

While an invitation to engage in settlement discussions may be an acknowledgment of the claimant’s cause of action, it does not follow in every case that it is impliedly an acknowledgment of some liability. [33] I do not agree that Podovinikoff stands for the general proposition that all inquiries into settlement demands constitute an admission of some liability for the purpose of confirming a cause of action, absent an express reservation or disclaimer. . . . [ 47 ] However, in Mr. Ross’s case, I agree with Mr. Ross’s submission that, objectively construed, a reasonable person, given the context in which Mr.

Parihar insisted on a meeting with Mr. Ross to receive the product and settle the matter, would view Mr. Parihar’s request to settle as an acknowledgement of some liability to Mr. Ross. Acknowledgement in writing [ 48 ] Mr. Parihar’s May 3, 2017 text message and Mr. Tang’s May 3, 2017 emails were in writing. Acknowledgement signed pursuant to the ETA

[ 49 ] Mr. Ross’s counsel informed the court that she was unable to find any British Columbia case law suggesting that text messages are signed electronically pursuant to the ETA . [ 50 ] I note that as a society, our mode of communication has significantly progressed to multiple electronic platforms. Next to the traditional telephone, text messaging and emailing have now become commonplace in our daily lives. [ 51 ] As is commonly known, text messaging is the act of sending short, alphanumeric communications between hand-held devices, as implemented by a wireless carrier.

It is a popular mode of communication due in part to the simplicity and ease of use, global availability, and cultural pervasiveness. [ 52 ] While it is possible to add an “electronic signature” in a text message, similar to the ability to do so in an email, senders of text messages may choose to identify themselves by different means, including by their initials, first name, photo, or phone number. [ 53 ] In Mr. Ross’s case, he identifies himself in his text messages as “JR Jonathan”. [ 54 ] It is not clear how Mr. Parihar identified himself.

I note that his messages are contained in the dark-colored boxes in the text messages exhibited to his Affidavit. [ 55 ] The issue in every case is one of fact concerning authenticity. [ 56 ] As the court in Johal noted at paras. 38 to 41 , referring to I.D.H. Diamonds (and that court’s discussion of the Electronic Information and Documents Act , 2000, SS 2000, c.

E-7.22 , the Saskatchewan equivalent of the ETA ): [38] Layh J. begins his analysis by pointing out that, even before the existence of such statutes as the ETA and EIDA, “ courts have considered an electronic signature as a valid signature simply under longstanding principles of common law.” He notes that this common law development was based on analogous non-electronic deviations from ordinary handwritten signatures, such as crosses, initials, pseudonyms, and rubber stamps, which have all been accepted as valid signatures in the past (at para. 43). [39] He goes on to state that the intent of statutes such as EIDA is to ensure that electronic signatures sufficiently meet the requirements usually imposed on a written and signed document. . . . [41] At para. 57, he lists four requirements . . .: • the presence of some type of information on the emails; • such information may be in electronic form; • the information must have been “created or adopted [by the person] in order to sign a document”; and • the information must be “attached to or associated with the document”. [ 57 ] Here, there is no question that Mr.

Parihar created the content found in the dark-coloured boxes in the text messages, including his May 3, 2017 text message to Mr. Ross. He does not dispute the content, accuracy, or reliability of his text messages in evidence, or that he sent them to Mr. Ross and received Mr. Ross’s text messages, as he has attached a copy of those text messages to his sworn Affidavit, which contains his signature. [ 58 ] The parties agree that Mr.

Tang’s May 3, 2017 emails meet the requirements of the ETA as electronically signed documents. [ 59 ] Therefore, I will not go into detail in this respect, except to note the court’s comments in Johal , at para. 33 : [33] The legislation does not require a digital signature, and a plain language

interpretation of the ETA ’s definition of “electronic signature” weighs against such an

interpretation. Instead, the statute’s language seems to focus on whether the email’s sender intended to create a signature to identify him/herself as its composer and sender. [ 60 ] Here, Mr. Tang, clearly indicates his name, professional designation, employer’s name, and contact information in his emails in evidence. He does not dispute the content, accuracy or reliability of those emails, or that he sent them. He has attached a copy to his Affidavit. [ 61 ] I am satisfied that Mr. Parihar’s May 3, 2017 text message to Mr. Ross and Mr. Tang’s May 3, 2017 emails meet the requirements of bearing an electronic signature for the purpose of satisfying s. 24(6) (

b) of the Act . Acknowledgement made by Mr. Parihar or his agent [ 62 ] As I have discussed above, Mr. Parihar’s May 3, 2017 text message to Mr. Ross, in the context in which it was written, constitutes an acknowledgement by Mr. Parihar of some liability to Mr. Ross for the Debt. [ 63 ] Also, Mr. Tang’s May 3, 2017 emails, in the context in which they were written, constitute an acknowledgement by the BCLP (through Mr. Tang), as agent for Mr. Parihar, of some liability to Mr. Ross for the Debt. [ 64 ] I will now address the agency issue. [ 65 ] The court in Johal , at para. 46 , described agency as:

. . . a relationship existing between two persons in which one, the agent, is legally considered to represent the other, the principal, in a way which affect the principal’s legal position in relation to third parties (G.H.I. Fridman, The Law of Agency , 5 th ed. (London: Butterworths, 1983), at 9). [ 66 ] There is a more detailed discussion of the law of agency in Keddie , at paras. 21 to 24 : [21] G.H.L.

Fridman, in The Law of Agency , 7 th ed. (London: Butterworths, 1996), at p. 315, describes the conditions under which a principal is to be held liable for the conduct of its agent: A principal is jointly and severally liable with his agent for any tort committed by the agent while acting within the scope of his authority and the authority exercised by the agent may be either actual or apparent, ie it may be express, implied, usual, or ostensible. [22] F.M.B. Reynolds, in Bowstead on Agency , 15 th ed. (London: Sweet & Maxwell, 1985), at p. 92, describes the types of authority: The authority of an agent may be (

a) actual (express or implied) where it results from a manifestation of consent that he should represent or act for the principal expressly or impliedly made by the principal to the agent himself; or (

b) apparent, where it results from such a manifestation made by the principal to third parties. [23] Bowstead on Agency , supra , at p. 92, further describes and differentiates "actual authority" in the following terms: Actual authority is the authority which the principal has given the agent wholly or in part by means of words or writing (called here express authority) or is regarded by the law as having given him because of the

interpretation put by the law on the relationship and dealings of the two parties (called here implied authority). "An ‘actual’ authority is a legal relationship between principal and agent created by a consensual agreement to which they alone are parties. Its scope is to be ascertained by applying ordinary principles of construction of contracts, including any proper implications from the express words used, the usages of the trade, or the course of business between the parties...." [ Freeman & Lockyer v.

Buckhurst Park Properties (Mangal) Ltd. [1964] 2 Q.B. 480 , 502, per Diplock L.J.] [Emphasis added in original.] [24] Actual authority turns on the relationship between the principal and agent.

Apparent or ostensible authority is concerned primarily with representations and manifestations made by the principal to third parties… [ 67 ] The court in Keddie goes on to discuss the law of apparent authority, at paras. 28 to 30, as follows: [28] A finding of apparent authority depends on some representation through words or conduct on the part of the principal that leads a third party to believe that the agent has the authority in question.

Apparent authority is a product of the principal's outward conduct with respect to third parties, not of the principal's internal agreements or arrangements with its agent. [29] Bowstead on Agency , supra , at p. 284, defines the nature of apparent authority as follows: Where a person, by words or conduct, represents or permits it to be represented that another person has authority to act on his behalf, he is bound by the acts of such other person with respect to anyone dealing with him as an agent on the faith of any such representation, to the same extent as if such other person had the authority that he was represented to have, even though he had no actual authority. [30] Fridman, supra , at p. 122, distinguishes apparent authority from the various types of actual authority this way: Unlike the kinds of authority which have been discussed in the preceding

chapter [types of actual authority], the agent's authority in agency by estoppel is not an actual or real authority at all. That is to say it does not result from consent on the part of the principal, whether express, or implied, according to the rules already discussed, that the agent should have any authority at all, or the kind of authority which he has purported to exercise. The agent's authority here is the product of the principal's conduct, his representation that the agent is authorised to act on his behalf. It is an authority which ‘apparently’ exists, having regard to the conduct of the parties.

In fact it does not exist. But as a matter of law, arising out of the factual position, the agent is said to have authority. [ 68 ] Mr. Ross submits that Mr. Parihar and the BCLP, including the Campaign Workers, had an actual agency relationship, express or implied, with respect to the payment of his campaign expenses, including the Invoice. [ 69 ] Mr. Ross refers to Mr. Tang’s Affidavit, wherein Mr.

Tang states that individual candidate’s campaigns did not establish their own bank accounts; donations would be deposited into the riding association’s bank account; and upon receiving invoices for campaign expenses and being satisfied of their propriety, Mr. Tang would issue cheques from that riding association’s bank account. [ 70 ] As I said earlier, the BCLP was responsible for receiving, holding, paying expenses on behalf of each candidate, including Mr. Parihar, and accounting for the funds in each candidate riding association bank account. Mr.

Parihar expressly, or impliedly, consented to the BCLP handling his campaign expenses. He also repeatedly told Mr. Ross, verbally and in writing, that the BCLP would pay the Invoice. [ 71 ] I find that there was an actual agency relationship, either express or implied, between Mr. Parihar and the BCLP, acting through the Campaign Workers, such as Mr. Tang, Mr. Bains and Mani Fallon, with respect to the payment of Mr. Parihar’s campaign expenses, including the Invoice. [ 72 ] In line with this agency relationship, Mr. Tang proceeded to process the Invoice for payment, as evidenced by his May 3, 2017

emails. The other Campaign Workers, Mr. Bains and Mani Fallon, did not refuse payment of the Invoice, as they knew that Mr. Parihar was a BCLP candidate, and the BCLP had an obligation to pay Mr. Parihar’s campaign expenses, after confirming their propriety. [ 73 ] The evidence also supports a finding of apparent authority or agency in light of Mr. Parihar’s repeated representations to Mr. Ross, from as early as January 2017 that the BCLP would pay the Invoice. [ 74 ] Regardless of the type of agency relationship that existed, Mr. Parihar, as principal, is bound by Mr. Tang’s assurance to Mr.

Ross that he would be paid upon receipt of a detailed invoice and approval from the campaign manager. Acknowledgement made to Mr. Ross [ 75 ] Mr. Parihar’s May 3, 2017 text message and Mr. Tang’s May 3, 2017 emails, which I have concluded constitute an acknowledgement of some liability by Mr. Parihar, were sent to Mr. Ross directly. [ 76 ] In the end, I am satisfied that there was an acknowledgement of some liability to Mr. Ross for the Debt: (

a) by Mr. Parihar, and (

b) by the BCLP, through Mr. Tang, on behalf of Mr. Parihar, resulting in an extension of the expiry of the limitation period from April 19, 2019 to May 3, 2019, pursuant to s. 24 of the Act . Mr. Ross’s action filed within the limitation period [ 77 ] Mr. Ross filed his action within the limitation period. CONCLUSION [ 78 ] A

summary of my conclusions is as follows: (

a) there was an acknowledgement of some liability for the Debt on May 3, 2017; (

b) the acknowledgement was in writing; (

c) the acknowledgement was electronically signed pursuant to the ETA ; (

d) the acknowledgement was made by Mr. Parihar, and by the BCLP, through Mr. Tang, on behalf of Mr. Parihar; (

e) the acknowledgement was made to Mr. Ross; (

f) pursuant to s. 24(1) (

a) of the Act , Mr. Ross’s claim was discovered on May 3, 2017; (

g) pursuant to s. 24(1) (

b) of the Act , the act or omission on which Mr. Ross’s claim is based is deemed to have taken place on May 3, 2017; (

h) pursuant to s. 24 of the Act , the expiry of the limitation period was extended from April 19, 2019 to May 3, 2019; and (

i) since Mr. Ross filed his claim on May 3, 2019, his claim was filed in time, and is not statute-barred. ORDERS [ 79 ] Mr. Parihar’s application is dismissed. [ 80 ] Pursuant to Rule 20(2) of the Small Claims Rules , B.C. Reg. 261/93 , Mr. Parihar shall pay to Mr. Ross, the expenses relating to this application, as follows: (

a) any fees Mr. Ross paid for filing any documents; (

b) reasonable amounts Mr. Ross paid for serving any documents; and (

c) any other reasonable charges or expenses that directly relate to the conduct of this application; (collectively, the “Application Expenses”). [ 81 ] If the parties are unable to agree on the amount of the Application Expenses by March 29, 2021, I direct the Registrar, pursuant to Rule 20(3) of the Small Claims Rules , to determine the amount of the Application Expenses. [ 82 ] Mr. Parihar shall pay the Application Expenses to Mr. Ross within 30 days of the determination of the amount, whether by the parties or by the Registrar. [ 83 ] This matter is adjourned to the Judicial Case Managers to

schedule a one-day trial to determine Mr. Ross’s substantive claim. If the parties anticipate that one day may not be sufficient for the trial, they are at liberty to canvass additional time with the Judicial Case Managers. By the Court

_____________________________ The Honourable Judge V. Chettiar Provincial Court of British Columbia