Alpine Valley Disposal v. Harrison Bay Dairy Farm Date:, 2012 BCPC 489

Citation: Alpine Valley Disposal v. Harrison Bay Dairy Farm Date: 20120830 2012 BCPC 0489 File No: C7642 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ALPINE VALLEY DISPOSAL LTD. CLAIMANT AND: HARRISON BAY DAIRY FARM LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MacKAY Counsel for the Claimant: R.K. Benham-Parker Appearing for the Defendant: E. Van Dyke Place of Hearing: Chilliwack , B.C. Date of Hearing: August 30, 2012 Date of Judgment: August 30, 2012 [ 1 ] THE COURT: The claimant in this case is suing the defendant for damages under a contract that was entered into between the

[ 1 ] THE COURT: The claimant in this case is suing the defendant for damages under a contract that was entered into between the parties for service. The defendant resists the claim on the basis that this was not a contract, or, if it was a contract, that there was insufficient attention drawn to the fact that it was a binding contract between the parties. [ 2 ] In so many words, although Mr Van Dyke did not use these terms in his submissions or his evidence, Mr.

Van Dyke is really suggesting that this was an unconscionable contract that ought not to be enforced because of some inequality in bargaining power. [ 3 ] The law indeed does provide for relief from contracts where one party to the contract is at a distinct disadvantage and/or where the other party to the contract has been guilty of some deception, deceit or other underhanded conduct. [ 4 ] Mr. Van Dyke is the alter ego of the defendant Harrison Bay Dairy Farm Ltd.

He has been in business in the dairy industry according to the evidence for some 30 years. [ 5 ] It came out in the evidence as well, that he is involved in another business -- I think a robot milking business -- something to do with the dairy industry I take it.

He did explain that with respect to that second industry, he was really involved in the service end of it and the field work end of it, but most of the management function is done by others, and with respect to the dairy industry that the corporate defendant itself is involved in, that much of the management work or most of the management work for that company is done by his wife. Nevertheless, he was the one who had dealings with Alpine. [ 6 ] The evidence is that initially there was a contract that started out in 2007. That written contract was entered into between the parties – I do not have a copy of it here.

In my view, it is not particularly material to the issues before me. [ 7 ] I pause here to note that I am using the term contract. Mr. Van Dyke seeks to draw a distinction between a service agreement and a contract, and the service agreement indeed he points to, is the document that has been entered into evidence here between the two parties that was entered into on the 27th of May 2010, which is called "Container Service Agreement". The upshot of that is that Mr.

Van Dyke did not consider this to be a binding contract. [ 8 ] However that may be, and however his subjective views are, it is the law that whether or not a contract is referred to as a contract in the written documentation, a contract exists where there is an offer and acceptance for consideration. All of those things are in place here. [ 9 ] This Container Service Agreement is a contract; I am fully satisfied of that. I am also fully satisfied that the terms of it were clear, were sent out, and were available for Mr. Van Dyke to read.

I accept on the evidence that he had some opportunity, a matter of a day or two, to go through it, and I cannot find that there was any action on the part of the representatives of Alpine Valley, that would cause me to conclude that this is an unconscionable contract. [ 10 ] Mr. Van Dyke’s problem, it seems to me, is that he chose for perhaps good reason -- perhaps he was busy with other things -- not to review the terms of the contract. This is not a contract that goes on for pages and pages containing multiple instances of fine print.

The print is not all that large but it is a one page contract, a simple contract that can be absorbed and read by anybody with moderate literacy skills within a matter of perhaps fifteen or so minutes. [ 11 ] Again, Mr. Van Dyke did not choose to do that. He signed the contract. There was no pressure, there was no trickery, there was no sneaking in of any terms into this contract. The term that he particularly complains of, the 60 month term, is clearly in the contract and on the evidence was in the contract at the time he signed it.

I am not without some sympathy for him, but I do not accept his position that he should be relieved from the terms of this contract. [ 12 ] I find that the claimant has proven that there was a fundamental breach by the defendant Harrison Bay Dairy Farm Ltd., by refusing to pay approximately one year after the contract was entered into and by ultimately putting the claimant in a position where it cannot perform its agreed to services under the contract, which is specifically by returning the bin to the claimant’s premises. [ 13 ] So damages for breach are in order.

I had some questions for counsel about the measure of damages. Given the evidence as I understand it the margins are very low in this business, given that the amount sued for is not in and of itself exorbitant. I am satisfied that it is proper to award damages as sought – you ought to remind me of the amount please counsel because – Mr. Benham-Parker did you – you indicated at the outset that you were abandoning three months I think I recall from the claim. [ 14 ] MR. BENHAM-PARKER: In my closing submissions I recalculated the damages.

The damages remaining on the contract are $5,672.70. [ 15 ] THE COURT: Yes, although again I should comment the calculation of the damages is somewhat rough in this case, I am satisfied that the amount does not amount to what would be considered a penalty at law, that in all the circumstances and on all the evidence before me, it is a reasonable measure of what position the claimant would have been in had the contract been honoured by the defendant. [ 16 ] There will be judgment in the amount that was indicated by Mr. Benham-Parker, together with the normal filing fees and service fees. [ 17 ] All right?

Thank you. ____________________ R.C. MacKay J