Wiens Electrical Services v., 2017 BCPC 4

Citation: Wiens Electrical Services v. 273134 BC Ltd. et al 2017 BCPC 4 Date: 20170117 File Nos: 22636, 22637 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (SMALL CLAIMS COURT) BETWEEN: WIENS ELECTRICAL SERVICES LTD. CLAIMANT AND: 273134 B.C. LTD. (Defendant in both actions) COASTAL PACIFIC AVIATION LTD. and COPAC AIRCRAFT MAINTENANCE LTD. (Defendants in file 22637 only) DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK

Appearing for the Claimant: E. Wiens and J. Wiens Counsel for the Defendants: D. L. Cayley Place of Hearing: Abbotsford , B.C. Date of Hearing: January 5, 10, 2017 Date of Judgment: January 17, 2017 Introduction [ 1 ] The Claimant Wiens Electrical Services Ltd. has commenced two claims against the Defendant 273134 B.C. Ltd. for money owing for electrical work that the Claimant says that it performed for this Defendant. (For brevity I will refer to this Defendant simply as 273134 from this point on).

The claim in court file 22636 concerns electrical work done at the Baron Restaurant located on property within the grounds of the Abbotsford Airport. The amount owing on that claim is $425.46 plus interest. [ 2 ] The more substantial of the Claimant’s two claims is the subject of court file 22637. In that claim, the Claimant alleges that 273134 owes the Claimant $27,668.51 for work performed on a 49 unit bunkhouse trailer that this Defendant purchased to convert into dormitories for its flight school.

That claim was subsequently amended to add Coastal Pacific Aviation Ltd. and Copac Aircraft Maintenance Ltd. as Defendants. All of the Defendants are inter-related with the common denominator being that their principal shareholder is Jiang Ning (referred to by all of the witnesses as Mr. Jiang). These three companies, along with others, are referred to as the “Canada Champion Aviation Group.” [ 3 ] The Claimant has abandoned a claim to any amount in excess of $25,000 on file 22637.

It claims interest at a rate of 2% per month on any outstanding amounts in respect of both claims. [ 4 ] The Defendants admit that the Claimant is owed something for its work, but it is not clear what that amount is or who should pay it. In its Reply, 273134 says that it “did not hire, request or contract for the electrical or any services of the Claimant as described in the Notice of Claim or at all and denies that any amount is owing.” It goes on to state that “No electrical or other services of the Claimant were authorized by” 273134.

In the alternative, 273134 says that it was never invoiced for the work, that the amount charged for the work is excessive and not supported by proper documentation. It also disputes the Claimant’s entitlement to interest. In the Reply filed in each action, 27134 had alleged that any amounts owing to the Claimant were the responsibility of the general contractor on these projects, but at trial this defence was abandoned. [ 5 ] As far as the other Defendants are concerned, their position is that these claims have nothing to do with them.

The Claimant added these Defendants based on the fact that it had previously done work that it had invoiced to 273134, and that work was paid for by these Defendants. [ 6 ] At the trial of this matter, a total of five witnesses testified: four for the Claimant and one for the Defendants. Witnesses called by the Claimant were its two principals - Ernest Wiens and Jody Wiens, as well as Harry Froese and Wayne Cave. Mr.

Froese was the general contractor for the renovations for the dormitories that are the subject of file 22637, but according to his evidence, the electrical work was not one of the sub-trades that he was responsible for. Wayne Cave was an officer and director of some of the companies that were part of the Canada Champion Aviation Group, though he was neither for 273134. His relationship with Canada Champion Aviation Group ended in August of 2015 and he has since commenced litigation against some part of that group, as has Mr. Froese. Mr.

Cave is also the father of Jody Wiens and the father-in-law of Ernest Wiens. [ 7 ] Jiang Ning, the principal shareholder of the Canada Champion Aviation Group, did not testify at trial and was not present for any part of the trial. On behalf of the Defendants, Brian Kong gave evidence. Mr. Kong is the Director of Flight Operations for the Defendant Coastal Pacific Aviation Ltd. and represented himself to the court as having the authority to instruct counsel on behalf of all Defendants. [ 8 ] Following is a

summary of the evidence heard at trial, a

summary of the law applicable to these claims, and the reasons for making the order which follows.

Summary of Evidence [ 9 ] According to the evidence of Wayne Cave, the Canada Champion Aviation Group comprises a number of companies that operate aviation related businesses. This group includes 273134, a company that operates a restaurant located on the property that the Abbotsford Airport is located on. The restaurant is called Baron Restaurant. 273134 also leases property at the airport on which it has placed a number of bunkhouse style trailers. These trailers have been converted into dormitories.

These claims involve electrical work performed at the restaurant and in the dormitories. [ 10 ] Other entities under the umbrella of the Canadian Champion Aviation Group include the Defendants Coastal Pacific Aviation Ltd. and Copac Aircraft Maintenance Ltd., as well as Coastal Pacific Flight Centre, CP Advanced Flight and COPAC Fuel Services. According to an organization chart marked as exhibit 1, the last named entity is non-operative. The individual with a controlling interest in these entities is Jiang Ning.

Prior to August of 2015, Wayne Cave was president and a director of five of these companies (the Defendants Coastal Pacific Aviation Ltd. and COPAC Aircraft Maintenance Ltd., as well as Coastal Pacific Flight Centre Ltd., CP Advanced Flight and COPAC Fuel Services). He testified that he was neither an officer nor a director of 273134, but that from time to time, Mr. Jiang would assign him tasks pertaining to 273134. This would include entering into contracts on behalf of 273134. Quite often these were oral agreements, without any formal written document.

[ 11 ] Mr. Cave testified that on a number of occasions, he would hire the Claimant for electrical work on behalf of 273134. This was done either with the knowledge of Mr. Jiang or under authority granted to him by Mr. Jiang. In tab 7 of a binder marked as exhibit 4 at trial, there are a number of invoices for work previously performed by the Claimant for 273134. Invoices for various jobs were presented. The table below sets out the invoice numbers, the date of the invoice, the amount of the invoice and the entity that paid the invoice. In all cases, the invoices are marked as “sold to 273134 B.C.

Ltd.” Invoice # Amount Date Paid By 4099 $7,605.47 October 16, 2014 Coastal Pacific Aviation Ltd. 4178 $8,115.14 December 8, 2014 Coastal Pacific Aviation Ltd. 4189 $5,976.23 December 15, 2014 Coastal Pacific Aviation Ltd. 4230 $2,467.64 January 14, 2015 COPAC Aircraft Maintenance Ltd. 4231 $8,598.73 January 14, 2015 Coastal Pacific Aviation Ltd. 4276 $1,241.75 February 18, 2015 Coastal Pacific Aviation Ltd. [ 12 ] Mr. Cave testified that it was not his practice to enter into written contracts for electrical work.

He said that this was because it was hard to define precisely what work needed to be done, though he knew what the end objective was. He testified that he enlisted Harry Froese and his company to perform the construction and retained the Claimant to look after the electrical work. He did not recall there being any signed contracts on the previous projects. He said “sometimes I would ask for a couple of quotations from different companies and then give the go ahead to a company, maybe by email or verbally.” [ 13 ] In the case of the work on the dormitories, Mr.

Cave recalled that a contract had been entered into with only one of the sub- trades, the company that provided compressed air into the hangers. Mr. Cave testified that it was hard to specifically define the work needed to convert the bunkhouse trailers into useable dormitories. On behalf of 273134, he engaged the services of Mr. Froese’s company to look after the construction aspects and the Claimant to look after the necessary electrical work. He was also responsible for finding painters, as well as other work necessary for compliance with a fire safety plan.

He recalled that those sub-trades submitted quotations and he told those companies to go ahead either by email or verbally. [ 14 ] Mr. Cave testified that the reason that the electrical work was not contracted under a defined scope of work was because the trailers were purchased without full knowledge of the condition of the trailers and how they would fit the intended design. He also testified that Mr. Jiang wanted the work to be done quickly in order that they could be ready for something called “summer camps”.

He said “in my mind, we could have made some attempt at defining the work,” but he believed that would necessitate a large amount of “extras” or changes to the defined work. He also said “we had worked with Wiens Electric and Harry Froese for quite a number of years and in my opinion they provided good service at reasonable prices, and so I enlisted both of them to just do what had to be done to set these things up in this u-shape and make them ready for occupancy, we needed an occupancy certificate.” He went on to state that this was based on a discussion he had with Mr.

Jiang on how the trailers would be set up. Although he could not specifically recall the conversation he had with Mr. Jiang about retaining the Claimant to do the work, he testified that he was “more than certain” that such a conversation occurred. [ 15 ] Mr. Cave testified that he was satisfied both with the quality of the work and the cost. [ 16 ] Harry Froese testified that he served as general contractor on the dormitories project, but that he neither retained nor supervised the electrical work.

That was not his responsibility and to his knowledge, all discussions about electrical work on this project took place between Mr. Cave and Mr. Wiens. He testified that the Claimant was the only company that performed electrical work on the project. [ 17 ] Mr. Froese testified that he has done work for Coastal Pacific for thirty-eight years, almost always without any sort of written contract. He said that he did not experience any problems in this regard until this project, and that in the summer of 2015, he was told that he would not be getting paid on this project.

He said that he has not been paid for his work on the project and has commenced litigation in the Supreme Court of British Columbia against 273134. [ 18 ] Both Mr. Cave and Mr. Froese testified about a meeting held at Baron Restaurant in January of 2015. Also present were Mr. Jiang and Mr. Kong. It was at that meeting that Mr. Jiang told Mr. Froese that Mr. Cave would be the manager on the dormitories project and that he should take his instructions concerning the project from Mr.

Cave. [ 19 ] On behalf of the Claimant, Ernest Wiens testified that based on his prior good working relationship with 273134, he did not enter into a scope of work contract concerning the necessary work on the dormitory project. He testified that as work progressed, he received instructions verbally from Mr. Cave and from Jack Gauthier, another employee of 273134. These two men gave the Claimant its instructions on all three phases of the project. Mr.

Wiens testified that on July 17, 2015, he rendered his invoice number 4502 for the work on the dormitories project for $27,668.51. [ 20 ] In October of 2015, the Claimant’s invoices were still unpaid. Mr. Wiens testified that at that time he spoke with Mr. Kong, and was told that his outstanding invoices were in the Defendant’s accounting department being processed for payment. Mr. Wiens testified that he contacted Mr. Gauthier as well as Anthony Zhou, a lawyer acting for 273134. He was assured that there was no problem with his invoices and that they would soon be paid. Mr.

Wiens followed up on this several times in October and November, but did not get a response. When he still did not get any response in December of 2015, these actions were commenced. [ 21 ] On behalf of the 273134, Brian Kong testified. He is that company’s Director of Flight Operations, and he frequently acts as a translator for Mr. Jiang. Mr. Kong testified that both of the projects that the Claimant worked on (the Baron Restaurant and the dormitories) were on properties leased to 273134. He said that the other Defendants have no ownership in either of these properties. Mr.

Kong testified that he was the one that was supposed to manage the dormitories project. He obtained quotes for the work and estimated the costs of the project to be in the range of $230,000.

[ 22 ] Mr. Kong testified that Mr. Cave volunteered to manage the dormitories project. This discussion took place at a meeting where Mr. Cave was present. Mr. Kong describes this as a “very short, informal” meeting that took place in late 2014. At the meeting Mr. Cave suggested that he manage the project because he had a good working relationship with Mr. Froese’s company. Mr. Kong later testified that he couldn’t recall what Mr. Jiang’s specific response to this suggestion by Mr. Cave was. He remembers that he himself did not register any objection to Mr. Cave’s suggestion. Mr.

Kong testified that he was to be responsible for managing the flooring and carpeting sub-trades. He personally did not have any involvement with the electrical work. When asked about whether the meeting described by other witnesses in which Mr. Cave was presented as the instructing party for the project, Mr. Kong testified “I don’t recall it.” [ 23 ] Mr. Kong testified that the first time he saw any of the invoices from the Claimant was at the Small Claims settlement conference.

This is in conflict with the evidence of Ernest Wiens and Jody Wiens, who maintain that the Defendant was regularly invoiced and reminded about the indebtedness. Both accounts may be true, in the sense that it is very likely that as a small business, the Claimant would make regular demands for payment of its invoices, but as the Director of Flight Operations, these may not have come to Mr. Kong’s notice. [ 24 ] Mr. Kong was asked why 273134 was refusing to pay anything for the electrical work, given that it had received the benefit of the work and was not expressing any complaints about the quality of the work.

He was asked these questions from the bench and gave these answers: Judge: We now know after the fact that it was Mr. Wiens’ company that ultimately did the [electrical] work, so I’m just missing why it is that you say that the electrician who got this project from zero to working shouldn’t be paid. I’m not following that. What then is the real reason that you, as spokesman for the Defendant, are saying today that Wiens Electrical Services shouldn’t be paid for the electrical work, or should be paid nothing? Mr. Kong: It’s kind of complicated because this ties to other legal cases that we are facing right now.

Judge: Okay, and I appreciate that your lawyer will be able to make submissions as to why he feels that’s the case, but I’m just wondering, in terms of, you’re the one giving evidence, so I just want to be clear, are you able to articulate why you say they shouldn’t be paid for the work they’ve done? Mr. Kong: I’m not objecting to the work that’s been done, the work has been done. Judge: Right, okay. Mr. Kong: I’m not objecting to anything. Judge: But you feel that the Claimant [sic] shouldn’t have to pay the Defendant [sic] for it? Mr.

Kong: It’s more complicated because it’s tied to other legal proceedings, so, that’s the reason. [ 25 ] Mr. Kong did not elaborate on how the other legal proceedings entitled 273134 to refuse to pay the Claimant’s bill. He was also asked about a paragraph in the pleadings that alleged that the Claimant’s costs were the responsibility of Mr. Froese’s company, but his counsel advised that 273134 was no longer advancing that position, quoting (with remarkable accuracy) what Chief Justice McLachlin of the Supreme Court of Canada said in R. v.

Imperial Tobacco Canada Ltd. 2011 SCC 42 , at paragraph [22] namely: The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must. [ 26 ] Jody Wiens, also an officer of the Claimant, reviewed the Claimant’s invoices as well as the Claimant’s internal supporting documentation. In some cases, the employees’ hours were recorded on individual work orders and in other cases, they were not. Mrs. Wiens testified that the hours worked are recorded on employees’ time slips, and these were kept for this project.

This documentation is not usually provided to the Claimant’s customers and is kept for internal accounting purposes. It was the evidence of Ernest Wiens that the employees who are named in the document showing a breakdown of this project did in fact work on the project, and in fact 273134 was not billed for five and a half hours of Mr. Wiens’ time. The Defendant has argued that since 120.5 hours of the employee’s work is not shown on any work orders, it should not be responsible for these hours. I accept the evidence of Mr.

Wiens that these hours were worked on this project and I reject the Defendants’ submission that this work should be provided for free because of this anomaly in the Claimant’s internal billing records. [ 27 ] Mrs. Wiens testified that her husband’s hours are not recorded on time slips because he is not paid directly by the company. His work is paid to a holding company. The Defendant has submitted that it is the holding company that should have sued for these hours, but I cannot agree with this submission.

This is analogous to saying that each of the individual employees should have sued for payment on this job instead of the Claimant. In this case, the holding company is in the same position as the individual employees, and it is proper for the claim to have been brought by the entity that performed the work, namely the Claimant. [ 28 ] This matter was first set for trial in August of 2016. At that time the Defendants sought and obtained an adjournment of the trial. This was frustrating for the Claimant as well as for its witnesses. According to the evidence of Harry Froese, he had a sign prepared which read “Mr.

Jiang of Coastal Pacific Aviation & 273134 BC Ltd. Please PAY YOUR BILL”. At the bottom of the sign were the names Wiens Electrical Services Ltd. and Harry Froese Inc. The sign was placed on a small trailer and left in a place across from the business premises that 273134 operated out of on the grounds of the Abbotsford Airport. It was placed in a location where it would be visible to persons having business on the airport property. [ 29 ] Mr. Wiens testified that he had prior knowledge that Mr. Froese would be placing the sign where he did. Mr. Wiens said that he neither approved nor disapproved of Mr.

Froese’s actions, but that this was entirely something done by Mr. Froese. Mr. Froese agreed that this was the case. The Defendants’ counsel asks that this be taken into account in considering the credibility of the

Claimant’s witnesses. Analysis (

a) Authority of Mr. Cave to Bind 273134 [ 30 ] The Defendants submit that no contract for electrical work was ever entered into between the Claimant and 273134 because Wayne Cave lacked the authority to bind that Defendant. Counsel for the Defendant submits that Mr. Cave held no position with 273134 and he did not have any authority to enter into a contract with the Claimant on behalf of 273134. [ 31 ] The difficulty with this argument is that it is at odds with the evidence presented. Mr. Cave testified that he was given such authority and both he and Mr.

Froese have testified that this was confirmed at a meeting at the Baron Restaurant by Mr. Jiang. Counsel for the Defendants says that the credibility of both Mr. Cave and Mr. Froese is suspect because both of them are suing some of the Defendants and they are adverse in interest. He also adds that as the father and the father-in-law of the principals of the Claimant, Mr. Cave has a bias against the Defendants. [ 32 ] The problem with this argument is that the Defendants have not tendered any evidence which disputes that Mr. Cave had the authority to bind 273134. While this is not confirmed by Mr.

Kong, nor it disputed by him. His evidence is that when Mr. Cave offered to manage the dormitories project, he does not recall what Mr. Jiang’s response was. He recalls that he personally did not voice any opposition, nor did he involve himself in the management of the electrical work, even though he believed this to be his project. He does not dispute the meeting at which Mr. Cave and Mr. Froese say that Mr. Jiang confirmed Mr. Cave’s authority to contract with the Claimant on behalf of 273134, he simply says “to the best of my knowledge, I do not recall having that meeting.” Mr.

Jiang has not testified to contradict Mr. Cave’s authority. For Mr. Cave to hire the Claimant to perform electrical work on behalf of the 273134 is also consistent with that Defendant’s past practice. Nothing in the evidence suggests that at any time when the Claimant was performing the electrical work, it was ever questioned by Mr. Jiang, Mr. Kong, or anyone about what authority the Claimant had to do the work it was doing.

The totality of the evidence on this point satisfies me that Wayne Cave had the authority of 273134 to enter into a contract with the Claimant to perform the work that the Claimant now sues for payment. [ 33 ] If this conclusion is in error, I find that Mr. Cave had what is known as “ostensible authority” to contract with the Claimant on behalf of 273134 for performance of the electrical work.

At common law, under the doctrine of ostensible authority (sometimes called “apparent authority”), when a corporation holds another person out as acting on behalf of the corporation, such that persons dealing with the corporation might reasonably assume that the person has the authority to enter into contracts on behalf of the corporation, it is no defence for the corporation to say that the person did not have such authority, unless the corporation can prove that the other party to the contract knew that the person lacked such authority. [ 34 ] This principle is stated in Bowstead & Reynolds on Agency (17th ed. 2001) at page 307 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. [ 35 ] This principle has been codified in section 146 (1)(

c) of the British Columbia Business Corporations Act which provides that “a company may not assert against a person dealing with the company, or dealing with any person who has acquired rights from the company, that… a person held out by the company as a director, officer or agent: (

i) is not, in fact, a director, officer or agent of the company, as the case may be, or (ii) has no authority to exercise the powers and perform the duties that are customary in the business of the company or usual for such director, officer or agent. [ 36 ] Accordingly, even if Mr. Cave lacked express authority to enter into a contract on behalf of 273134 with the Claimant for electrical services (a conclusion I have rejected for reasons previously stated), I find that he had the ostensible authority to do so. [ 37 ] There may be some break in the chain of evidence as to whether or not Mr. Cave or Mr.

Gauthier had the authority to retain the Claimant to do the work it was asked to do at the Baron Restaurant (the claim in file 22636). Even if this is the case, there is evidence to support the conclusion that both Mr. Cave and Mr. Gauthier had the ostensible authority to hire the Claimant to perform the work that it did in that case as well. I would also note that the evidence does not disclose any complaint from 273134 about the Claimant doing this work or about the quality of the work, prior to commencement of this litigation. (

b) Existence of a Contract [ 38 ] I find that the elements of a contract between the Claimant and 273134 are found to exist in this case. A valid offer and acceptance can be found, not only on the evidence of Mr. Wiens and Mr. Cave, but also from the conduct of the parties. The Claimant performed the work and 273134 accepted it without complaint prior to the commencement of legal proceedings. Consideration existed on both sides, and while the terms may not have been itemized in minute detail, there is no ambiguity as to what was expected of the Claimant.

In the case of the work at the Baron Restaurant, it was to fix a particular problem, and in the case of the dormitories it was to get them ready to pass the necessary inspection required for their lawful occupancy. In both cases, the Claimant was given the authority to use its best judgement and expertise to complete the work. The rate was the same as 237134 was charged on three previous jobs ($65 per hour plus a mark-up) and that rate was used for these jobs.

I find that there is ample evidence of the existence of all of the elements of a contract between the Claimant and 273134 in each case. [ 39 ] The Defendants object to the amount charged for the work. I am satisfied that the objections that are raised were addressed in the evidence of the Claimant’s witnesses. Specifically, the Defendants assert that 237134 should not be responsible for 120.5 hours of labour because the time is not reflected on the Claimant’s work orders or in some cases the entries do not match. I find this not to be a

valid objection because it is really a complaint about the Claimant’s internal accounting practices, not a complaint with the work’s value or quality. I accept the evidence of Ernest Wiens that these hours were actually worked and were required to complete the job, and that in fact 237134 was not charged for all of the labour that was required to complete the contract. [ 40 ] For reasons previously stated, I have rejected the Defendants’ submission that the labour performed by Mr. Wiens ought to have formed the basis of a claim by a different Claimant.

It was between the Claimant and its electricians who the Claimant paid to perform the work. There was never a separate contract between Mr. Wiens’ holding company and any of the Defendants. (

c) Claim for Interest [ 41 ] The Claimant asks, in addition to the amount of its claims, that 273134 pay interest on the amount of its judgement at the rate of 2% per month from and after the date of the invoices. It bases this claim on a statement which appears at the bottom of its invoices, which reads “Balance due in 30 days. Interest of 2% per month will be added to all overdue accounts.” [ 42 ] Counsel for the Defendants argues that a party cannot base a claim for interest on a unilateral assertion. I believe counsel to be correct in this position. In N.B.C. Mechanical v. A. H.

Lundberg Equipment Ltd. 1999 BCCA 775 , a decision of the British Columbia Court of Appeal, the court held that “a right to charge interest cannot be based simply on a unilateral assertion in an invoice.” For interest to be charged at such a rate, there must be an agreement on the part of both parties to such a term. This is often the case when, for example, some businesses extend credit to their customers by having them sign an agreement in which the customer agrees to pay interest at the set rate on amounts that are owing past a set length of time (usually 30 days).

No such agreement exists here, and there is no evidence that the 273134 ever agreed to pay interest on overdue accounts at any rate higher than that set by statute. [ 43 ] This is not to say that the Claimant is not entitled to any interest on any amount that may be found owing. The Claimant complains that for 273134 not to be charged interest would mean that the sub-trades would become financiers for the project. Such a policy would encourage persons who hire sub-trades not to pay them until the last minute possible.

To alleviate this, the Court Order Interest Act states, in section 1(1), that, subject to certain exceptions, “a court must add to a pecuniary judgment an amount of interest calculated on the amount ordered to be paid at a rate the court considers appropriate in the circumstances from the date on which the cause of action arose to the date of the order.” Unlike post-judgement interest, which is set at a rate fixed under

section 7 of the Act , the rate of pre-judgement interest appears at first to be left to the discretion of the court. [ 44 ] The Claim in file 22637 is for an amount that exceeds $25,000, and the Claimant has abandoned its claim for any sum in excess of the current limit for claims under the Small Claims Act, presently set at $25,000. However this limit on the court’s jurisdiction does not render the issue of interest moot. Under section 3(1) of the Small Claims Act, this Court has jurisdiction for claims up to the prescribed limit, excludes interest and costs, and therefore interest may be awarded on top of a judgement for $25,000. The language used in that

section does not include interest or costs within the amount prescribed by the Regulations which fixes the maximum amount of the Claim. [ 45 ] In fixing the rate of pre-judgement interest, the courts of this province have interpreted section 1(1) as fixing the rate of pre- judgment interest to be paid at a rate set at two percent below the prime lending rate. (The recent BC Supreme Court of Henry v.

British Columbia 2016 BCSC 2082 sets this out at paragraph 23, and I believe I am bound to follow this decision.) From July 1, 2015 to the end of that year, the prescribed rate for pre-judgement interest was set at 0.85% per annum. Since January 1, 2016, the prescribed rate for pre-judgement interest has been set at 0.70%. This rate seems quite low, and unlikely to discourage the practice that the awarding of pre- judgement interest is meant to prevent. However if I award the Claimant a greater rate, it is likely that such an award may not survive appellate review.

The rate of post-judgement interest is somewhat more generous at 2.7%.

Summary and Costs [ 46 ] In conclusion, I find that the Claimant and the Defendant were parties to a contract for the Claimant to perform all of the electrical work that it has claimed for. I find that the Claimant did perform the work in a satisfactory manner and that amounts invoiced were proper.

I also find that the Claimant is entitled to pre-judgement interest at the statutorily prescribed rate from the dates of the invoices. [ 47 ] In each Claim, the Claimant is entitled to its filing fees and to the service fees it has claimed. [ 48 ] Rule 20(5) of the Small Claims Rules also allows a judge to order a party to pay a penalty of up to 10% of the amount claimed if the offending party files a reply and proceeds through trial “with no reasonable basis for success.” This rule is often applied where there is some offensive aspect to the conduct of the offending party, falling outside the bounds of what is reasonable or understandable under the circumstances. [ 49 ] In this case, the notion that 273134 should have obtained the benefit of all of the Claimant’s labour and materials, in order to meet a deadline, without paying any part of the claim is particularly offensive.

The explanation provided by the Defendants’ witness as to why none of the claim was being paid, namely that “It’s kind of complicated because this ties to other legal cases that we are facing right now”, does not make the Defendants’ actions any less offensive, especially since the Defendants are “not objecting to the work that’s been done.” The notion that 273134 should get free electrical work from the Claimant because it is suing two other parties defies common sense and does not say much for the reputation that the numbered company wishes to create for itself in the community.

The Claimant suspects that 273134 would like to get the sub-trades to finance its project. Based on what the Defendants have presented in evidence, it is hard to come up with other motives for 273134’s non-payment. [ 50 ] The practice by those who conduct construction projects of not paying their sub-trades in the hope that the small businessmen will go away, settle for a lesser amount or have payment delayed until they sue, is one which must be discouraged. Whatever the motive 273134 had for refusing to pay its electrician on this project, I find that this case falls within the intent of rule 20(5).

On each of the claims, the Claimant will be awarded an additional penalty of 10% of the amount of its Claim. [ 51 ] The claims against Coastal Pacific Aviation Ltd. and Copac Aircraft Maintenance Ltd. are dismissed. The Claimant had no

contract with either of these entities and the fact that they may have paid invoices for work done for 273134 in the past does not make them liable for this claim. No costs will be awarded to either of these companies. The practice of Canada Champion Aviation Group of having some companies pay invoices owing by others may have corporate advantages to it, but it only serves to confuse its creditors and to obfuscate matters. It should not benefit from this practice to the detriment of its creditors. Order (

a) File 22636 [ 52 ] On file 22636, the Claimant Wiens Electrical Services Ltd. will have judgement against the Defendant 273134 B.C. Ltd. in the sum of $425.46, along with pre-judgement interest (calculated from July 24, 2015 to the date of judgement as the sum of $4.70). The Claimant shall also have costs paid to it by the said Defendant in the amount of $162.54 (composed of filing fees of $100, service fees of $20 and costs under Rule 20(5) of $42.54). (

b) File 226437 [ 53 ] On file 22637, the Claimant Wiens Electrical Services Ltd. will have judgement against the Defendant 273134 B.C. Ltd. in the sum of $25,000, along with pre-judgement interest (calculated from July 17, 2015 to the date of judgement as the sum of $280.38). The Claimant shall also have costs paid to it by the said Defendant in the amount of $2,676.00 (composed of filing fees of $156, service fees of $20 and costs under Rule 20(5) of $2,500). Dated at the City of Abbotsford, in the Province of British Columbia, this 17 th day of January, 2017. The Honourable Judge K. D. Skilnick Provincial Court of British Columbia