Perez v. Westside Drainage Services Ltd. Date:, 2011 BCPC 17

Citation: Perez v. Westside Drainage Services Ltd. Date: 20110107 2011 BCPC 0017 File No: C13950 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: CYNTHIA PEREZ CLAIMANT AND: WESTSIDE DRAINAGE SERVICES LTD. DEFENDANT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DYER Counsel for the Claimant: No appearance Counsel for the Defendant: No appearance Place of Hearing: Port Coquitlam , B.C. Date of Hearing: January 7, 2011 Date of Judgment: January 7, 2011 [ 1 ] THE COURT: This case involves a dispute about a drainage contractor's: (

a) ability to retain a security deposit on a drainage contract which it entered into with the claimant homeowner on September 20th, 2007; and (

b) its ability to recover the balance of a 15 percent cancellation fee said to relate to the same contract in the event that it can keep the security deposit. [ 2 ] In the summer of 2007, the defendant contractor's principal, Mr. Carlo Bandiera, attended at the claimant's home on Sherbrooke Street in New Westminster. This company had apparently been contacted by a restoration company. [ 3 ] Mr.

Bandiera says that in the claimant's presence at this time he inspected the interior and exterior of her home and prepared an estimate in the amount of $23,000 to totally replace her exterior drainage system, install a new sump, and be responsible for all required inspections. [ 4 ] This estimate must have been in writing and I expect left with the claimant. No copy of same was ever filed at the trial. [ 5 ] Mr.

Bandiera says the claimant called him and said she could not afford a complete replacement of her system and said she wanted to do an outside sump which he said he discouraged; saying to her it would not work. One month later, in or about August 2007, she called him back and told him it did not work and that she was suing the contractor. She invited him out a second time to give her a new estimate. [ 6 ] He says he attended in August 2007 and he again reviewed her home inside and out, spending approximately two hours on site and ultimately gave her a quote for $19,800 plus GST which she agreed to.

[ 7 ] In cross-examination, the claimant could not recall the month she first met Mr. Bandiera, the amount of the first quotation, nor could she recall calling him back to re-estimate the job. She recalled speaking to Mr. Bandiera in September 2007 and meeting with him in her living room and signing the contract in issue in this case (marked as Exhibit 1) on September 20th, 2007. [ 8 ] Both parties agree that after discussion, it was agreed that the defendant would start the claimant's drainage job in November of 2007.

The claimant said this date was a possibility; it was not up to her to set the start date and she agreed she had to take into account other work the defendant was then doing with respect to a likely start date. No specific start date was set, nor is there any reference to this start date in the contract (Exhibit 1). [ 9 ] Mr. Bandiera said he never put a specific start date in his written contracts as weather was always a factor; not so much rain which could be diverted away, but snow could complicate excavation work. [ 10 ] Mr.

Bandiera said he told the claimant her job would take two to three weeks to do and she was okay with this. No initial deposit of any sort was taken or even requested. The contract does not provide for the taking of such a deposit for any purpose in any event. [ 11 ] The claimant said she was having some roof work done on her home in the fall of 2007. A tarp was apparently left off (or leaked) during a particularly rainy time and rainwater entered a hole in her roof and came into her bathroom.

She said she then became concerned that it would not be a good idea to do drainage work in the fall or winter months with rain then ongoing and said she called Mr. Bandiera on or about October 26th, 2007 and asked if it would be okay to delay the start of her job.

He agreed, but she said he then asked her for a cash deposit of $3,000. [ 12 ] She also testified she had sent him an email dated October 24th, 2007 which after outlining the issue relating to the leak in the roof of her home apparently caused by the roofers, said this: After calling the owner of roofing company, I had major clean-up to do as well as anger to manage because I took the time to look for a good company to do this job and yet this is happening to the house and to us again and again.

The owner of the roofing company said to me that most of the issues and concerns I voiced were due to the fact that the work was being performed at this time of the year as opposed to summertime. I was not too happy with his response but I accepted it, but it did raise many red flags and this is why I am telling you this story.

Carlo, I know that you are professional and that you take pride in the work that you do but if you know, think and feel that performing the drainage work at our house at this time, November, is not the best time, please tell me so now and we should reschedule the work to commence in the spring. I'd rather wait than create more problems for me but the call is all yours. I don't want to hear of problems because it is raining or that the work will take way longer because of the weather, etc. I am not asking you to perform a miracle, but I do appreciate your honesty and understanding.

I am stressed out completely and I am not really impressed with the trades. Thanks for your time and patience with me. Cynthia [ 13 ] This email makes no reference to her earlier having spoken to him. I think she is mistaken when she testified she called him first before sending the email. Mr. Bandiera said he called her three to four days after receiving her email. [ 14 ] In any event, she said in this telephone call she said she told him she had no cash and asked if she could pay $2,000 only as the requested deposit.

She said in her direct evidence he agreed she could pay him $2,000 if she did so as soon as possible and that this was to be a security deposit in her understanding to reaffirm the contract and to be applied to the agreed upon contract price of $19,800. This price was of course only due to the defendant in the event it did the contracted work or was otherwise pursuant to its contract or the law entitled to it.

It is not suggested in this case that the extension of the date to the spring of 2008 cost the claimant $2,000. [ 15 ] In cross-examination, the claimant did not agree that the $3,000 requested was to cover the cancellation fee in the contract and recalled Mr. Bandiera said he required a security deposit in order for him to postpone the start of her work. [ 16 ] Mr. Bandiera testified in direct evidence that he told the claimant in the telephone call in late October 2007 to secure the project he needed or requested a deposit of $2,900 based on the 15 percent of the agreed on contract price.

This figure I note in fact would be $2,970. Ms. Perez was not cross-examined on this latter point. [ 17 ] Both parties are agreed that Mr. Bandiera went to her home on or about October 31st, 2007 and she then paid him cash of $2,000.

He says she did so on November 4th, 2007 and received a receipt called an invoice dated October 31st, 2007, marked as Exhibit 2 at trial, in the amount of $2,000 which states as follows: As discussed the contract work for 359 Sherbrooke Street in New Westminster will commence in the springtime around March/April when the weather is best suited for the drain tile work as per contract dated and signed September 25, 2007, Contract No. 359. Deposit due for securing job until start date amount due $2,000. [ 18 ] Mr.

Bandiera said he told her October 31st, 2007 that he would call her a week prior to the new start date agreed to be sometime in March or April 2008 to set a firm start date and said she was okay with this. He spent the fall of 2007 at least in part doing other jobs and said even though he had purchased some materials for her job he was able to use them on other jobs that he was doing and was not out-of-pocket for these costs or even labour costs as a result of the claimant's request to postpone the work from November 2007 into either March or April 2008. [ 19 ] In her direct evidence, Ms.

Perez said after she paid the defendant $2,000 in cash she had no reason to call Mr. Bandiera as they had agreed her work would start in the spring of 2008. Nonetheless, she did so a number of times contrary to this evidence in February 2008 and got no response. She said she followed up each call with an email but had no copies of them to file as exhibits at trial. I note the defendant said as well he had no copies of same.

[ 20 ] The message left by her was essentially "When will we get started?" Unbeknownst to the claimant, the Bandieras were away on holiday including for the last two weeks of February 2008 returning home February 28th, 2008. On their return home, Mr. Bandiera said they found about four telephone messages from the claimant on both their company landline and cell number. [ 21 ] Mr.

Bandiera said the claimant seemed pretty irate in these calls and the sense of the messages was "What type of company do you run, not telling your customers where you are going and we need to get my job done!" [ 22 ] As well, part of the messages according to the Bandieras, was an assertion that Ms. Perez had a court date apparently relating to a claim against the first drainage contractor who had done faulty work at her home and that she had lost it as Mr.

Bandiera had not written up an inspection report which she needed for court relating to this allegedly defective work and which report he had agreed to do in their contract (Exhibit 1). [ 23 ] Mr. Bandiera said this report was not late and could only be started once he started work on her job and then expose the perimeter drainage work done by this contractor so he could inspect it. [ 24 ] Ms. Perez in cross-examination denied that she said she had missed a court date but said she said to Mr. Bandiera that she had one coming up and had hoped to get his report related to this other drainage company.

She said she later won this court case. [ 25 ] I have no evidence as to the particulars of this action, only that it was an allegation by her that the prior drainage company's work done at her home was somehow defective. [ 26 ] Mr. Bandiera said by the end of the various telephone messages, the tone of Ms. Perez's voice had escalated and she sounded pretty irate.

He sat down with his wife and they reviewed her file and decided to call her on March 3rd, 2008 to find out her problem. [ 27 ] He placed the call on the company telephone but it was on a speaker and his wife, Andrea, the secretary-treasurer of the defendant company, listened in on the telephone call unbeknownst to Ms. Perez. [ 28 ] The parties disagreed as to what was then said. I will set out the defendant's version first and then the claimant's version. [ 29 ] Mr. Bandiera said Ms.

Perez got irate in this call and yelled at him asserting she had lost her court case because he had not provided a timely inspection report. He explained this was not due until he had exposed the old work so as to be able to see it and comment on its state. He recalled she brought up all her past problems. Soon they both got angry and the conversation went out of control. He said to her it sounded like she did not want to go ahead with the work and she said words to the effect, "I don't want to go ahead with the drainage work at my house." He said she asked about the deposit and he agreed to look into it.

There was then some discussion about how Mr. Bandiera had spent $600.00 in time attending at her house, time taken away from his other potential clients, and his wanting to be paid for it. He brought this up. He said the call lasted about 20 minutes until she hung up. [ 30 ] Mr. Bandiera testified that he and his wife had prepared a letter dated March 3rd, 2008 and sent to the claimant the next day. It was intended in this letter to cover the important things discussed in the March 3rd telephone call. I will deal with this letter shortly.

It made no reference to the $600.00 figure discussed as the defendant wanted what was outstanding paid to them, the so-called cancellation fee, and according to Mr. Bandiera's evidence, believing she had cancelled the contractor. [ 31 ] In cross-examination, Mr. Bandiera denied that in the March 3rd, 2008 telephone call he had offered cancelling the contract as he was upset with her and disagreed he had said to her that he had already spent $600.00 of time and that it was not worth going ahead with her.

He agreed before this call they had a mutual understanding that the defendant would start her job in the spring of 2008 but said part of their understanding was not that she was to contact him to set a start date, rather he was to call her. In answer to a question from the Court, he said he was to call her in March or April to set a start date for her drainage work. [ 32 ] Mr.

Bandiera said at the end of this call, he understood she had cancelled the contract and said the defendant did not want to go ahead with the work after she had done this but that before this telephone call, the defendant was prepared to do her job starting in the spring of 2008. Mr. Bandiera testified that the contract form the defendant used with the claimant was its standard form contract in use since February 2006 when they started their business. [ 33 ] Mrs. Bandiera also testified.

On arrival home from their holiday late on March 2nd, 2008, they found numerous voice mail messages on both their home and office phones from Ms. Perez, as well as a number of emails, none of which were produced at trial by the defendant. She sounded irate and was concerned that she could not reach the defendant. I do not find this concern to be totally unreasonable. [ 34 ] There is a dispute in the evidence in this case as to who was to call whom to set a firm spring 2008 start date.

There was nothing in writing on point, for example, a single line in the October 31st, 2007 invoice such as, "We will call you between March 4-10, 2008 to set an actual start date for your job". The defendant had the claimant's $2,000 and she did not know where they were in late February and early March 2008. [ 35 ] I agree with the defendant that where he and his family were on their holiday was none of Ms. Perez's business; she was only a customer.

However, that said, a short email to her to the above effect would have perhaps avoided the need to have the March 3rd, 2008 telephone call at all and possibly this court case. [ 36 ] Mrs. Bandiera said she overheard Ms. Perez in the telephone call on the speaker phone. She essentially corroborated her husband's evidence as to what Ms. Perez said about the inspection report. Mrs. Bandiera recalled that at some point Ms. Perez said she did not want Westside to do the drainage work for her. She recalled her husband asking her "What do you mean?" and Ms.

Perez repeating that she did not want Westside to do the work and asking for her $2,000 back as well. She was adamant on this request. [ 37 ] Mrs. Bandiera recalled her husband Carlo saying words to the effect that he would have to pull her contract and look into things and stating there was work over and above the contract work that he felt he should be compensated for giving as examples time for

preparing contracts and going back and forth to the claimant's home. [ 38 ] I observe that these are usual costs any contractor trying to get business would incur and should form part of the overall contract price. If there is to be a separate charge for same in addition to the contract price, the contract in my view should say so. This one marked as Exhibit 1, did not. [ 39 ] Ms. Perez recalled that she understood that she might owe $600.00 and was expecting $1,400 back. This is in accordance with Mrs. Bandiera's evidence given at trial.

She said the March 3rd call was left on the basis that her husband Carlo would pull her file and she would get back to the claimant concerning the return of her deposit. [ 40 ] After this telephone call, they discussed matters as husband and wife, and Mrs. Bandiera prepared a letter dated March 3rd, 2008 to Ms. Perez and sent the next day. They had no communication with her until they received her written response to this letter dated March 17th, 2008. [ 41 ] I should add that Mrs. Bandiera also testified that prior to the March 3rd, 2008 telephone call with Ms. Perez, Ms.

Perez in either a voice mail or email message had stated she needed documentation or a deficiency report so she could take it to court and was irate it had not been done. She also later testified that in the telephone call Ms. Perez had advised that she had lost her case against this previous drainage company as Westside had not done their deficiency report. [ 42 ] Mrs. Bandiera said that Ms. Perez said in the telephone call it was because of this failure by Westside to provide this report that she was cancelling the contract and Westside to do her drainage work. This evidence is somewhat at odds with Mr.

Bandiera's recollection of the content of the telephone call of March 3rd, 2008. [ 43 ] I turn now to the claimant's evidence with respect to the important March 3rd, 2008 telephone call. [ 44 ] She said Mr. Bandiera called her this day about noon. She did not know and was not told that the call was on a speaker phone and that Mrs. Bandiera was listening in. She only learned of this fact on March 18th, 2008. She said in her direct examination that had she known of this, she probably would have continued with the call but might have chosen her words more carefully. I found this response somewhat odd.

Why she would say this was not really made clear by her in her testimony at trial. [ 45 ] In any event, in this telephone call Ms. Perez recalled that Mr. Bandiera was very aggravated and upset that she had been calling him and leaving all her messages suggesting or accusing that she was harassing them filling up their email. She said he was quite verbal, screaming at her and using an inappropriate tone of voice and also using the word "fuck" one or two times. Ms. Perez recalled Mr.

Bandiera said in this telephone call that he did not want to do anything with her, that it was not worth his time to work with her, and said he did not want to continue his business relationship with her. She responded with words to the effect, "That's fine." [ 46 ] Ms. Perez testified in-chief that this telephone call ended without them discussing the $2,000 security deposit. She recalled apologizing to Mr. Bandiera if she had -- as a result of her earlier voice and email messages -- come across as harassing.

When later the content of her March 17th, 2008 letter was drawn to her attention at trial, she agreed the above testimony as to the discussion on the $2,000 was in error and that this was discussed but she said he did not tell her when the money would be returned. She agreed when the messages were left and I think too on March 3rd, she was both concerned and worried about her money and as well, about getting no feedback or response to her five to six telephone messages and emails. The answering machine on which she left messages did not answer with the name of Westside.

She felt in her messages she was not rude but rather firm in requiring a response. She also testified that in the March 3rd call, she was seeking a start date for her drainage job and not to end the contract. She needed to have this work done. She agreed this call was upsetting for her nonetheless. [ 47 ] Ms. Perez said in the March 3rd call, Mr. Bandiera had said to her that he had spent a lot of time with her, for example, visiting her house three times and doing estimates and that by March 3rd he had already incurred $600.00 worth of time. [ 48 ] In cross-examination, Ms.

Perez was asked had she not in this telephone call told Carlo that she had lost a court date due to her failure to supply the deficiency report? She denied she either said this or missed a court date but rather said she told him she had a court date coming up and that she had told Carlo she had hoped to get his inspection report for it. She said she ultimately won this case. [ 49 ] She was asked by Mrs. Bandiera in cross-examination "Had she not said three times in the call that she no longer wanted to go forward with the work with Westside?" She denied that she had done so. I note that neither Mr. or Mrs.

Bandiera testified that Ms. Perez had in fact said this three times, notwithstanding Mrs. Bandiera's first cross-examining the claimant on this point. [ 50 ] Mrs. Bandiera said after the defendant's letter of March 3rd was prepared it was mailed the next day. This letter states as follows: On Monday, March 3d, 2008, while having a conversation with Carlo you requested to cancel the work as per your signed Contract No. 359 dated September 25, 2007.

As noted on the bottom of your signed contract we charge a 15 percent cancellation fee of the contract price. [I note that the contract does not expressly state this.] The price of your signed contract dated September 25, 2007 was $19,800. 15 percent cancellation fee of the contract price is $2,970. We collected a $2,000 deposit from you November 4th, 2007 to secure your job start in March/April. This leaves a balance of$970.00 outstanding for the cancellation fee. Please send out payment to us by certified cheque or money order payable upon receipt of this letter.

Sorry to hear of your change of mind regarding the service work you contracted with us. [ 51 ] It is therefore clear from this letter that certainly on March 3rd, 2008, the defendant took the view that the $2,000 that it had received for purposes of extending the start date of the contract could be applied to the cancellation fee that it felt it was contractually able to collect from the homeowner in the event that she in fact cancelled the contract. [ 52 ] Ms. Perez responded with a letter of March 17th, 2008. She said she was away for two weeks before March 17th and first saw

the above defendant's letter closer to March 17th. She was surprised to receive it from Mrs. Bandiera alleging she had cancelled the contract when she had not done so. She said in March it was to her benefit to go ahead with the contract; she needed the work done. [ 53 ] She testified that the cancellation fee was not discussed at all in the March 3rd telephone call and said that no reference was made in it to her owing another $970.00 as a balance on the cancellation fee said to be $2,970. Mr. Bandiera did not say this topic was discussed in this telephone call, nor did Mrs. Bandiera. [ 54 ] Ms.

Perez sent them a letter dated March 17th and the content of her letter is as follows: In response to your letter dated March 3rd, 2008 it is obvious that you received erroneous information regarding the phone conversation that took place between Mr. Bandiera and me, Cynthia Perez. It was in fact Mr. Bandiera who offered to return the deposit he received from me on October 31st, 2007 in the amount of $2,000. I simply accepted Mr. Bandiera's offer. It is clear that I never cancelled the contract. Therefore I am not bound to any cancellation fee that may be applicable. Please advise Mr.

Bandiera that he has five business days from the postal date to exercise one of the following options. In the spirit of fairness, I, Cynthia Perez, agree to grant Mr. Bandiera a total of $600.00 to compensate him for the time that he said he had already spent preparing the contract and visits to the property in question. That was the exact amount Mr. Bandiera said on the phone that he had invested immediately after he had offered to return the deposit. I expect the rest of the deposit, $1,300, to be mailed to my home address within the allotted time, payment by certified cheque or money order.

Schedule an exact date for work to commence not later than the end of April 2008 and work to be performed as original contracted. Please notify me of the start date within the allotted time in writing. Moving forward, any communication between Westside Drainage, Mr.

Bandiera, or yourself and me, Cynthia Perez should be strictly done in writing. [ 55 ] Westside responded to this letter the next day, on March 18th, in part as follows: The phone conversation that took place between you and he on March 3rd, 2008, took place on our company cell phone in the morning of March 3rd, 2008, while both Carlo and I were in our office having the phone on speaker phone.

I was present for and able to hear both sides of the whole conversation in which you clearly stated to Carlo, "You no longer want to go forward with this work." "There is nothing here to misinterpret." "No longer wanting to go forward with the work," deems cancelling your signed contract with us. Yes, we obtained a security deposit of $2,000 from you to guarantee a start date. That deposit unfortunately cannot be credited back to you in partial or full payment due to fact the amount of your contract with us is $19,800 and 15 percent of that total contract is over the amount of your $2,000 deposit.

If you fail to send the balance owing by March 19th, 2008 we will take this matter to collections and move forward with legal actions. [ 56 ] The final communication to Westside from the claimant dated March 29th, 2008 states as follows: We disagree with all items in this and your previous letter. I repeat: I did not cancel the contract entered with Westside Drainage Services Ltd. on September 20th, 2007. I demand that the work Westside Drainage was contracted for is scheduled to start in the month of April 2008. I expect this work to be scheduled immediately. Advise of start date in writing.

Any other and other action on the part of Westside Drainage Services Ltd. will automatically constitute a breach of contract and a full return of my deposit is expected. Payment to be made as previously stated. You have until April 3rd, 2008 to act. If you require a court decision to reach the same conclusion I would be pleased to attend. In the alternative, kindly cease further contact with me. [ 57 ] Both Mr. and Mrs. Bandiera testified that on and after March 3rd, 2008, they decided after Ms.

Perez cancelled the contract, he felt for a second time (the first being as a result of her October 24th, 2007 email above) that Westside did not want to go forward with Ms. Perez as a customer. Before her last March 3rd cancellation, they did. [ 58 ] I find that the first alleged cancellation is not really a cancellation at all but rather a postponement of the work start date originally scheduled for November 2007. [ 59 ] In any event, Mr. Bandiera said after the March 3rd cancellation by Ms. Perez and her behaviour in the messages and March 3rd telephone call, they no longer trusted her.

For this reason he said they did not respond to the second option if you will in her March 17th letter. Ms. Bandiera says that they had not responded to this second option due to her prior erratic and rude behaviour and said they were worried if they proceeded with the contract in the spring of 2008 there would be a further problem with her. They felt her letter of March 17th was contrary to what she had said on the telephone on March 3rd and was further evidence of her erratic behaviour. Mrs.

Bandiera said "We couldn't as a small company run the risk of dealing with her after March 3rd." [ 60 ] In answer to a question from the Court, Mr. Bandiera advised that Westside typically did about 20 jobs a year. People had to be scheduled for jobs and re-scheduled when a customer, as occurred with Ms. Perez, wanted to change the job start date. He did agree that on the lack of trust issue with Ms.

Perez and having regard to the fact that Westside had $2,000 of her money, he could have demanded approximately $8,000 (being 40 percent of the contract price) before it started her job had it elected to do so and to proceed with the work, that the company was financially protected at least to some extent from any future erratic behaviour on her part and then offered that "not all customers pay". [ 61 ] Finally, Mrs. Bandiera said that as a result of Ms.

Perez's earlier cancellation in October 2007, that Westside had lost profit or income which she estimated to be 30 percent of the contract price as they had a void in their fall 2007

schedule and did not have a contract to do to fill this space of 21 days in November 2007. All they were able to do was service calls. However, no claim is formally advanced for loss of profit by reason of this November 2007 delayed start date. Mr. Bandiera did not state he had to pay any wages to workers including an independent excavator he had booked for the November 2007 job with the claimant nor did the defendant company give any particulars in evidence with respect to the revenues produced or time spent on the various service calls which at least in part filled in the time that would otherwise have been used for the Perez job. Position of the Parties

[ 62 ] The claimant's position can be simply stated: She says she never cancelled the contract and hence the 15 percent cancellation fee does not apply, and her money should be returned. I should either find the defendant's representatives to be untruthful or mistaken when they say she cancelled the contract. She asserts she had every intention on March 3rd, 2008 of having the defendant Westside do the work on her home. [ 63 ] The defendant says that the claimant did cancel the contract and when it sent Ms. Perez the March 3rd, 2008 letter, this led to her lawsuit filed on April 8th, 2008. Mrs.

Bandiera said she and her husband were not in the business of turning away business. They tried to service her needs, especially in her times of stress in the fall of 2007 to the best of their ability and failed in doing so. Discussion [ 64 ] The first point I wish to deal with is whether or not the defendant could properly demand in October 2007 that the claimant pay it a deposit in any amount in order to change the start date of the drainage contract from November 2007 into the spring of 2008.

Certainly, there is nothing in the contract (Exhibit 1) that permits it to do so. [ 65 ] Generally, in our system of civil law in order for a contract to be enforceable there must be not only certainty of terms, there must be consideration, often in the form of mutual promises made between the parties.

There must be an exchange of values between the parties (see, for example, Wadham's: The Law of Contracts , 4th ed., para. 118). [ 66 ] Certain decided cases have held that there is no consideration or exchange of value between contracting parties where, for example, one party who has entered into a contract with another second party to deliver certain goods to the second party demands that the second party pay additional money, for example, a higher price for the goods, which the second party pays as it needs the goods.

Such a bargain as to the higher price at least would generally be held to be unenforceable as the vendor of the goods had sought more money to perform an agreement it had already made with the second party (see Wadham's , paras. 135 and 138). [ 67 ] I have considered whether or not this is what occurred in October 2007 between the parties in the case at bar. Did the defendant demand that the claimant homeowner post money, ultimately agreed to be $2,000, as consideration for it to do something it had already agreed to do, namely, repair the drainage system at the claimant's home?

But for the change in start date, I might have found that this was so. However, I think that here the defendant was entitled to seek a deposit to ensure this later start date when it had earlier orally agreed to do the claimant's job in November 2007 and booked a two to three week time slot in his

schedule somewhere to do this job I would guess and then was asked by the claimant to reschedule into the spring of 2008. [ 68 ] I think the defendant's case might have been far stronger if the contract had permitted it to do so, for example, if it contained an express clause that said in the English language that if the homeowner seeks to alter the agreed upon start date, the defendant contractor has a right to request a deposit in a particular amount (or to be calculated in a particular way) to secure the later start date.

However, I am not prepared to find in this case that without such an express clause what the defendant had requested and the claimant agreed to was unenforceable or unlawful. [ 69 ] Ms. Perez said she understood the agreed upon sum was a security deposit to reaffirm the drainage contract she felt to be applied to the contract price or as she said in cross-examination, a security deposit for Westside to postpone the work. She did not agree that it was to cover the cancellation fee referred to in the contract at the bottom. [ 70 ] Mr. Bandiera said when the money was requested in October 2007, he told Ms.

Perez that this requested amount (he said $2,900) was based on 15 percent of the contract price, however, Ms. Perez was not cross-examined on this point at trial. [ 71 ] In the result, there is a lack of agreement between the parties as to what this sum of money was for and I think too how it was to be used, if at all, and in what event. The matter is not really clarified when the October 31st, 2007 invoice (Exhibit 2) prepared by Westside is reviewed.

It shows the $2,000 to be "total amount owing" and describes it as "deposit due for securing job until start date" which is further described to be "in the springtime around March/April." This invoice is really a receipt as I have said. [ 72 ] Is this deposit of the sort the law recognizes as liable to be forfeit in the event the depositor breaches the contract and whether or not the contractor and holder of same suffers no actual loss?

Was it an amount paid in advance to secure later performance of the contract or is it rather a mere front payment which must be accounted for by the holder in the event the homeowner breaches the contract and subject to the contractor proving an actual loss as a result of the breach? There is nothing in the contract (Exhibit 1) on point and I think Exhibit 2 as I have said is also unhelpful. [ 73 ] One case on point dealing with a real estate transaction is Williamson Pacific Developments Inc. v. Johns & Co. , [1997] B.C.J. No. 1109 a judgment of our Court of Appeal.

The issue here was whether or not Williamson, the vendor of certain real property located at Qualicum Beach, B.C. could retain a $45,000 deposit initially paid by a purchaser which subsequently defaulted on the property purchase. The Court of Appeal upheld the trial judge who found it could. The contract expressly referred to the sum of $45,000 as non- refundable, being a deposit on account of the proposed purchase of the property and further said: [10] The contract referred to the sum of $45,000 as "non-refundable", "being deposit on account of the proposed purchase of [the property]". Clause 2(

c) provided that: ... unless the balance of the cash payment is paid and such formal agreement to pay the balance as may be necessary is entered into on or before the Completion Date, the Vendor may at the Vendor's option terminate this Contract and in such event the amount paid by the Purchaser will be absolutely forfeited to the Vendor on account of damages, without prejudice to the Vendor's other remedies. [ 74 ] I appreciate that there is a difference between the facts in Williamson , supra , and in the case at bar.

Nonetheless, the contract (Exhibit 1) was written by the defendant, not the claimant and the defendant could, had it wished, made it clear with a term that if a deposit was sought and paid and the claimant homeowner failed to perform the agreement, for example, by cancelling the contract, that the deposit would be forfeit and would be applied against the cancellation fee, being 15 percent of the contract price. This it did not do. In the result, there was no consensus or agreement between the two parties at the trial before me as to how these funds are to be used and

nothing in the contract to help out. [75] The defendant's position is that they are to be applied towards the cancellation fee and it asserts there was a cancellation by theclaimant. [76] Did the claimant cancel the contract on March 3rd, 2008? [77] I note with interest her position is not merely that she did not cancel it, rather she goes further and says the defendant cancelledthe agreement and she said "That's fine." She says on March 3rd she accepted that the defendant did not want anything more to do withher. The defendant of course denies this. [78] My impression of Ms.

Perez was that she was a very business-like woman and aware of her rights as a homeowner in dealingwith contractors. I confess I found her apparent failure to do an immediate email or letter to the defendant (when she says they cancelledthe agreement and where they held her money, namely, the $2,000, confirming their repudiation, and demanding her money back) ofsome concern. [79] She said she was in early March 2008 concerned about her money yet she said erroneously in her evidence that the return of the$2,000 or really anything about it was not discussed in the March 3rd, 2008 telephone call with Mr. Bandiera.

This would make no senseon the facts of this case. She later agreed in answer to a question from the Court that it was discussed. Surely when they quit on her onMarch 3rd, she would -- if this had been true -- gone after the defendant forthwith for the return of her money or at least forthwithconfirmed her version of events in writing. She had Mrs.

Bandiera's email address and such a communication would have taken littletime to compose and transmit. [80] As well, I am concerned that notwithstanding her evidence, he was very rude with her even using the "F" word in the March 3rdcall several times and that he quit on her. In her letter of March 17th to the defendant she gave him an option of going forward with thejob.

This does not make sense either. [81] As well, very importantly, her first letter to the defendant, March 17th, does not state that it was the defendant, not her, whocancelled the drainage contract. [82] The defendant's two representatives both basically stated that Ms. Perez said during the rather heated exchange by telephone onMarch 3rd, 2008 that she did not want Westside to go ahead with the drainage work at her home. They confirmed this by letter of March4th which refers to this termination or cancellation of the contract by Ms.

Perez. [83] With some hesitation, I prefer the defendant's evidence as to what occurred to that given by the claimant in this important March3rd telephone call with respect to the issue of cancellation. [84] The well known case of Faryna v. Chorney (1952), (BC CA), 2 D.L.R. 354 deals with credibility in civilcases. This case from our B.C.

Court of Appeal encourages trial judges not to rely too strongly on the demeanour of a witness or the factthat his or her evidence remains uncontradicted, but rather we should be concerned with whether the evidence of the witness is consistentwith the probabilities affecting the case as a whole. The test if you will is repeated at p. 4 of the Quicklaw Report of the reasons of theCourt as follows: [11] The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whetherthe personal demeanour of the particular witness carried conviction of the truth.

The test must reasonably subject his story to anexamination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth ofthe story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informedperson would readily recognize as reasonable in that place and in those conditions.

Only thus can a Court satisfactorily appraise thetestimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long andsuccessful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what hesincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to betelling the truth", is to come to a conclusion on consideration of only half the problem.

In truth it may easily be self-direction of adangerous kind. [12] The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance ofprobabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe thetrial Judge with a divine insight into the hearts and minds of the witnesses.

And a Court of Appeal must be satisfied that the trial Judge'sfinding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can hetested in the particular case. [85] In my view, Ms. Perez's version of the March 3rd, 2008 telephone call is not in accordance with the preponderance ofprobabilities in the case and I reject it. In addition, there was a material inconsistency in my view between Ms.

Perez's direct evidencethat the return of the $2,000 was not discussed in the March 3rd telephone call as compared to the content of her March 17th letter statingit was. [86] I am satisfied that the defendant has shown on the balance of probabilities that Ms.

Perez ended the contract on March 3rd in thetelephone call and that but for this call, the defendant was then intending to do the required work starting sometime in April or May 2008and as at March 3rd, no formal start date had yet been agreed to. [87] There still remains the issues of: 1. whether or not the defendant is entitled to a 15 percent cancellation fee "as a result of what the claimant did"; and 2. is entitled to keep the $2,000 paid in cash by Ms. Perez in late October or early November 2007 and related;

3. whether it can properly claim an additional $970.00 from the claimant as it has done in its counterclaim. [ 88 ] Just as the claimant to be successful against the defendant must prove her case against the defendant on a balance of probabilities, so too must the defendant prove its counterclaim against the claimant on the balance of probabilities. [ 89 ] Had the claimant, Ms.

Perez, asserted in her Notice of Claim both that she was entitled to a return of her $2,000 deposit and 15 percent of the contract price of $19,800 or $2,950 in addition payable by the defendant contractor to her as the homeowner because she alleged that the defendant contractor had cancelled her contract, I have no doubt whatsoever that the defendant would have said that, even if I had found that it had cancelled the contract, the contract does not provide that in such event it was to pay this amount to the claimant homeowner.

It certainly is not so stated expressly in the contract in the English language as a term that this is so. [ 90 ] I find that the contract is frankly ambiguous on point. All it says is "15 percent cancellation fee applies to all contracts." It does not say if this sum is payable whether the cancellation is done by the homeowner or the contractor or both. It does not state 15 percent of what. The defendant in correspondence has at least twice stated it is 15 percent of the contract price, excluding GST.

The correspondence in question does not form part of the contract, nor do I find there is an oral term of the contract on point. The contract is unclear on this point as well. The defendant drew the contract. It could easily have said, "a cancellation fee of 15 percent of the contract price net of GST is payable only in the event the homeowner cancels the contract at any time before the work thereunder commences" or something of similar effect. [ 91 ] I find that the clause sought to be relied on by the defendant is so unclear as to be unenforceable.

It does not provide a legal basis upon which the defendant can seek to have Ms. Perez pay money to it or a basis upon which it can keep the $2,000 it took from her in early November 2007. Had the defendant wanted a right to keep such a deposit, it could, as in Williamson , supra , have expressly spelled it out in its contract that it had such a right. This it did not do. [ 92 ] Again, it drew the contract. It is not for the Court to make a contract for the parties who come before it.

If one is in business and to do business with others, enters into contracts, the terms should be clear up front before the customer is ever invited to sign the contract. The customer should know when the start date of the work is or how it will be set and when. The customer should know if the first start date is to be moved can the contractor in order to do so then demand a security deposit and, if paid, how will this deposit be applied in the event the contract work is performed or in the event that the work does not, as here, proceed.

If there is a cancellation fee the homeowner is entitled to know who pays it, how it is calculated and when it is to be paid. This contract contained none of this information. [ 93 ] The reason a contract should be precise and set out clearly all the important terms of the business arrangement is multi-fold. For starters, if on reviewing a proposed contract, a homeowner customer feels the proposed agreement is onerous or one-sided, he or she can decline to sign it and decline to do business at all with the contractor.

Secondly, if the contract is clear and unambiguous, it helps the parties avoid disputes and the prospect of time-consuming litigation in court as occurred in the case at bar. [ 94 ] There is no contractual basis in my view for the defendant as well to recover the $970.00 claimed in the counterclaim. The defendant has not asserted it suffered any particular damages as a result of Ms.

Perez's cancellation on March 3rd, 2008 beyond a general allegation in its counterclaim that her irrational conduct wasted their time "delaying our prescheduled jobs causing us monetary loss." I do not consider the claimant's conduct wasted a material amount of the defendant's time. This is unproven insofar as it led to delay in, for example, other prescheduled work. This allegation is unproven as is the further allegation that the defendant suffered monetary loss as a result of the claimant's conduct. This loss has not been proven on the evidence offered in this case on the balance of probabilities.

There is no basis upon which the Court could therefore even seek to set off the $2,000 held by the defendant against such damages as the same are simply unproven by the defendant.

Conclusion [ 95 ] The defendant will forthwith refund the $2,000 to the claimant, not because it cancelled her contract, but because it has not established any legal basis to keep it and most especially, has no contractual provision as in Williamson , supra , which would allow it to do so. [ 96 ] In addition, there will be pre-judgment interest that will be payable on this sum of money from March 3rd, 2008 to today's date, namely, January 7th, 2011. [ 97 ] I do not allow the claimant's claim as pleaded in her notice of claim.

The defendant's counterclaim is dismissed. [ 98 ] In my view, neither party is entitled to its costs in these proceedings.