Northwest Waste v. Andreas Restaurant Ltd. Date:, 2016 BCPC 395

Citation: Northwest Waste v. Andreas Restaurant Ltd. Date: 20161031 2016 BCPC 395 File No: S71271 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Division BETWEEN: NORTHWEST WASTE SOLUTIONS INC. CLAIMANT AND: ANDREAS RESTAURANTS LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Claimant: A. Delmonico Counsel for the Defendant: J. Kitsul Place of Hearing: Surrey , B.C. Date of Hearing: July 15, 2016 Date of Judgment: October 31, 2016 INTRODUCTION

INTRODUCTION [1] The Claimant, Northwest Waste Solutions Inc. (“Northwest”), brings this action for damages against the Defendant, AndreasRestaurant Ltd. (“Andreas”), for breach of contract. [2] Northwest says it entered into a Customer Service Agreement with Andreas (the “Agreement”), effective March 1, 2011,whereby Northwest was to provide waste disposal services for a two-year term at the base rate of $264.00 per month. The services wereto commence May 1, 2011, with the first two months at no charge.

However, when Northwest attempted to deliver the waste binsAndreas refused to accept them claiming that it cancelled the Agreement within two or three days of making it. Northwest disputes thatAndreas cancelled the Agreement. It says Andreas breached its exclusive agreement with Northwest by renewing its then currentagreement (the “2006 SS Contract”) with Super Save Disposal Inc. (“Super Save”) and not paying the amounts due under theAgreement.

Therefore, pursuant to the terms of the Agreement, Northwest seeks damages in the amount of $5,808 (calculated at $264per month for 22 months), being the amount it would have received from Andreas if the Agreement had been fully performed. It alsoseeks the allowable court costs. [3] Andreas, on the other hand, disputes Northwest’s claim for damages and says the Agreement is not enforceable for tworeasons: (

a) a condition precedent that Mr. Andreas Arsoniadis (“Mr. Arsoniadis, Sr.”) had to approve the Agreement before it couldbecome binding on Andreas was not fulfilled and that Mr. Dimitrios Arsoniadis (“Dimitrios”) alone did not have the signing authority tobind Andreas; and (

b) Mr. Don McEwan, the Northwest sales representative, made a fraudulent misrepresentation regarding the timingof the availability of the better pricing to induce Andreas to enter into the Agreement. [4] Andreas’ counsel informed the court that Andreas would not be pursuing the other defences outlined in its Reply. ISSUES [5] The issues to be determined in this case are as follows: I. is the Agreement enforceable? II. if the Agreement is enforceable, did Andreas breach it? III. if Andreas breached the Agreement, what is the appropriate quantum of damages?

BACKGROUND [6] Northwest is a service provider in the competitive commercial waste disposal industry. [7] Andreas is a family-run restaurant business, operating out of two locations: North Vancouver and Langley, British Columbia. The Northwest services were to be provided at the Langley location. [8] Mr. Arsoniadis, Sr. and his wife are the directors of Andreas and the corporate entity that owns the lands and premises wherethe Langley restaurant is located. [9] Dimitrios is the son of Mr. and Mrs. Arsoniadis, Sr. Dimitrios is employed by Andreas as a manager of the Langley restaurant.

He has been managing the Langley restaurant for about 12 years. Through his high school years, he worked at the restaurant as a cook. [10] Mr. McEwan was employed by Northwest from about January, 2010 to late April, 2011. He negotiated the Agreement withDimitrios. Mr. McEwan was terminated from Northwest’s employ due to lack of sufficient sales. ANALYSIS AND DECISION [11] Mr. McEwan testified on behalf of Northwest and Dimitrios provided affidavit evidence and also testified at the trial on behalfof Andreas.

Credibility Assessment: [12] Andreas’ counsel submits that this case turns on the credibility of the parties’ two witnesses. Before turning to the issues athand, I will briefly address the concern regarding the witnesses’ credibility. [13] While the parties’ counsel did not refer me to any case law, I note the starting point for guidance on assessing credibility is thecase of Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), wherein, the court, at para. 11, said: . . .

In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of theprobabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. . . . [14] Then in Bradshaw v. Stenner, 2010 BCSC 1398 (affirmed 2012 BCCA 296), the court expanded and clarified the Faryna test asfollows:

186 Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witnessand the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), (SCC), 59 S.C.R.452, . . .

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

Chorny, (BC CA), [1952] 2 D.L.R.354 (B.C.C.A.) [Farnya]; R. v. S. (R.D.), (SCC), [1997] 3 S.C.R. 484 at para. 128 (S.C.C.)). Ultimately, the validity ofthe evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be inexistence at the time (Farnya at para.356). 187 It has been suggested that a methodology to adopt is to first consider the testimony of a witness on a ‘standalone’ basis, followedby an analysis of whether the witness’s story is inherently believable.

Then, if the witness testimony has survived relatively intact, thetestimony should be evaluated based upon the consistency with other witnesses and with documentary evidence. The testimony of non-party, disinterested witnesses may provide a reliable yardstick for comparison. Finally, the court should determine which version ofevents is the most consistent with the “preponderance of probabilities which a practical and informed person would readily recognize asreasonable in that place and in those conditions” (Overseas Investments

(1986) Ltd. v. Cornwall Developments Ltd. (1993), (AB KB), 12 Alta. L.R. (3d) 298 at para. 13 (Alta. Q.B.)). I have found this approach useful. [15] I will apply this approach to the case before me. In this case, I found Mr. McEwan’s evidence reliable. He testified to theextent of his memory as the events occurred more than five years ago and he openly admitted when he could not remember some of thedetails. He has nothing to gain from testifying on behalf of Northwest as he left their employ more than five years ago. I cannot say thesame of Dimitrios’ evidence.

His testimony at trial, some five years after the events in question, contained far more specific details thanthose in his affidavit sworn October 10, 2012, which was slightly more than one and a half years after the events in question. I found hisevidence at times internally inconsistent with his own evidence and externally inconsistent with some of the documentary evidence. Iwill point out these inconsistencies as I discuss the issues below. I. Is the Agreement enforceable? [16] The parties do not dispute that Mr.

McEwan met with Dimitrios at the Langley restaurant and Dimitrios signed the Agreementon March 1, 2011. [17] However, Andreas now raises two defences to the enforceability of the Agreement. I will address them in turn. (

a) Condition precedent: [18] Andreas alleges that there was an oral condition precedent that Mr. Arsoniadis, Sr. had to approve the Agreement before itcould become binding on Andreas. [19] Dimitrios’ evidence is that he told Mr. McEwan that he had no signing authority and that his father had to approve theAgreement before he could sign it. He said he was not able to reach his father at that time, but he signed the Agreement at Mr.McEwan’s insistence. However, Mr. McEwan testified that he has no recollection of Dimitrios stating to him that his father had toapprove the Agreement.

He said Dimitrios negotiated the terms of the Agreement and the terms discussed were written into theAgreement; if Dimitrios had indicated that Mr. Arsoniadis, Sr.’s approval was an important condition, he would have written that into theAgreement, as he did with other important terms such as those included in the Special Instructions

section of the Agreement. [20] I do not accept Dimitrios’ evidence in this respect and I find no such oral condition precedent existed for the following reasons: (

i) The evidence indicates that Dimitrios has been working in the Andreas family business ever since he was a youth. He is now40 years old. He has been managing the day-to-day operations of the Langley restaurant for about 12 years. Therefore, it is notunreasonable to conclude that he was intimately familiar with the operations of the Andreas restaurants, and in particular how the wastedisposal contracts worked as he had in the past signed agreements with Super Save on two occasions. If he was not familiar with thesetypes of contracts, he would not have engaged in negotiating the terms of the Agreement with Mr.

McEwan. (ii) Mr. McEwan testified that he interacted with Dimitrios two or three times before the Agreement was signed on March 1, 2011. He said Dimitrios was interested in Northwest’s services as he indicated to Mr. McEwan that the 2006 SS Contract was about to expireand that there were some aspects of Northwest’s services that Super Save was not providing; and Dimitrios instructed him to prepare aproposal. (iii) Once the proposal was prepared, Mr. McEwan and Dimitrios discussed the terms of the Agreement, including the details of theequipment, services and rates, and specific instructions.

Even though Northwest’s standard service term is five years, Dimitrios onlywanted a two-year term, which was specified in the Special Instructions section. Other important details such as the fuel surcharges andthe commencement date of the Agreement were also specified in this section.

(iv) If Mr. Arsoniadis, Sr.’s approval was a condition precedent to the Agreement coming into effect, I find that Dimitrios knew, or ought to have known, that that condition ought to have been written into the Agreement. But Dimitrios did not ask that condition to be written into the Agreement. (

v) He acknowledged at trial that he understood what a “subject condition” or “condition precedent” means in the context of a real estate transaction as he has been personally involved in such a transaction. (vi) He went ahead and signed not only the Agreement, but all of the related paperwork including letters to Super Save cancelling the 2006 SS Contract and notifying them that Andreas was switching service providers. (vii) Dimitrios testified that his father, whom he referred to as the “big guy” or “big cheese”, always negotiates all contracts for the two restaurants and that Dimitrios does not negotiate any business contracts and he only signs if his father tells him to do so.

He also said he did not know and did not read what was in the Agreement. All of this is inconsistent with the evidence of the events that transpired surrounding the signing of the Agreement. Dimitrios did negotiate with Mr. McEwan and he did sign the Agreement and other related documents before discussing with or getting his father’s approval. He could have told Mr. McEwan he did not want to sign anything until he has had a chance to discuss the terms with his father or he could have asked to include the condition that Andreas is now alleging. I do not accept that Dimitrios signed the Agreement because of Mr.

McEwan’s alleged representation that the offered pricing would not be available at a later date. I will say more about this under the fraudulent misrepresentation

section below. (viii) Mr. McEwan testified that he does not recall discussing Dimitrios’ father at all with Dimitrios and that Dimitrios did not express any reservations or concerns before signing the Agreement. (ix) I also do not accept Dimitrios’ evidence that his father was not available to discuss the Agreement. He only contacted his father after he signed the Agreement and not before. He could have contacted his father as soon as his first discussion with Mr. McEwan. Mr. McEwan said he spoke with Dimitrios two or three times, whereas Dimitrios said he interacted with Mr.

McEwan only once at the Langley restaurant for about an hour. But later in his testimony, he contradicted himself and said he also spoke with Mr. McEwan on the phone. (

x) Furthermore, the clause in the Agreement, immediately above Dimitrios’ signature, reads as follows: This is a legal binding agreement subject to the General Conditions specified on the reverse side. By signing this Agreement, Customer acknowledges that he or she or its authorized signatory has read, understood and agreed to this Agreement and these terms and conditions. And the “Binding Effect” clause on the back of the Agreement reads in part as follows: This Agreement is a legally binding contract on the part of both Northwest and Customer and their respective heirs, successors and permitted assigns.

The person signing the Agreement on behalf of Customer hereby acknowledge[s] that he or she has read and understood all of the terms and conditions of this Agreement and confirms to Northwest that he or she is duly authorized to enter into this Agreement for and on behalf of Customer and to bind Customer hereto. . . . (xi) It is not plausible that a person in the managerial position of Dimitrios, running the day-to-day operations of a restaurant, would not know anything about any of the contracts that affect his operations or would be so naive as to sign anything that is put in front of him.

He is an experienced businessman, and there is no evidence that he has any deficiencies in the English language. If he chooses not to read and understand a document and proceeds to sign it, that is a risk he knowingly takes, and he and his principal must bear the consequences of such action. He cannot later complain that he did not read or understand its contents. (xii) Northwest’s counsel also urged me to draw an adverse inference against Andreas for not calling Mr.

Arsoniadis, Sr. as a witness in this case, as he could have provided evidence as to the alleged condition precedent. (xiii) In discussing the circumstances when an adverse inference may be drawn against a party, the court in Robinson v. Bud’s Bar Inc., 2015 BCSC 1767 , at para. 113 , cited the following passage by Sopinka et al in The Law of Evidence in Canada , 3 rd ed. (Markham: LexisNexis, 2009) at 377:

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away.

Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it. (xiv) Andreas’ counsel indicated to the court that Mr. Arsoniadis, Sr. was out of the country due to a death in the family and, therefore, was unable to attend court to provide evidence.

That may be so, but I note that the court record in this matter indicates that even as far back as July 28, 2015 when an application by Andreas, consented to by Northwest, was made to a judge to postpone the originally-scheduled trial date of September 4, 2015, the application stated that Dimitrios will be the only witness for the Defendant in this matter. This leads me to conclude that Andreas never had any intention of producing Mr. Arsoniadis, Sr. as a witness in this matter. In light of all of this, I have no hesitation in drawing an adverse inference against Andreas.

Dimitrios’ authority to sign: [ 21 ] I also do not accept Dimitrios’ evidence that he had no authority to sign the Agreement. I find that he did have authority, at least apparent authority even if not actual authority, to sign the Agreement. My reasons for doing so are as follows: (

i) First of all, it is highly unlikely that Dimitrios would have signed the Agreement if he did not believe he had the authority to do so, particularly in light of his evidence that his father, being an “old school Greek” as he put it, was in complete charge of the business and that Dimitrios would only do what his father told him to do. (ii) He did sign the 2006 SS Contract and its renewal in April, 2011 (the “2011 SS Contract”).

I will say more about the 2011 SS Contract under the breach of contract discussion below. (iii) In the 2006 SS Contract, his position is described as Manager, whereas in the 2011 SS Contract, it is described as Owner, even though he testified that he does not hold any equity interest in the Andreas restaurant business and that he is merely a salaried employee. (iv) Mr. McEwan testified that when seeking out potential customers, he would typically look to speak with a decision-maker who can make the decision to switch service providers and sign the contract.

In Andreas’ case, he understood Dimitrios to be the owner of the Langley restaurant. (

v) Northwest’s counsel pointed out that Andreas’ website contains an announcement to the public that “Andreas’ two locations are owned and operated by father and son duo Andreas and Dimitrios.” Dimitrios acknowledged at trial that he had input into the contents of Andreas’ website, including this statement. Also, by allowing such a statement to be made, Mr.

Arsoniadis, Sr. implicitly informs the public that Dimitrios has authority attendant with being an owner/manager, including the inference that he has the authority to sign documents. (vi) Clearly, the evidence indicates that Dimitrios was holding himself out as a person of authority, be it an owner or manager, at least with respect to the Langley restaurant. (vii) As Northwest’s counsel submitted, agreements entered into by an agent are binding on his principal where the agent has either actual or apparent authority to act on behalf of the principal: Keddie v.

Horne , 1999 BCCA 541 , paras. 22-24 . (viii) Also, as Northwest’s counsel submitted, the “indoor management rule” codified in s. 146 of the Business Corporations Act , SBC 2002, c. 57, prevents a company from asserting that a person held out as the company’s agent “has no authority to exercise the powers and perform the duties that are customary in the business of the company or usual for such . . . agent”. (ix) Furthermore, since Dimitrios is an employee of Andreas, Andreas is vicariously responsible and liable for Dimitrios’ actions. (

b) Fraudulent misrepresentation:

[22] Andreas alleges that Mr. McEwan made a fraudulent misrepresentation when he and Dimitrios met on March 1, 2011 to reviewthe terms of, and sign, the Agreement. The allegation is that Mr. McEwan told Dimitrios that if Dimitrios did not sign the Agreementthat day, Mr. McEwan would not be able to guarantee the price he had quoted that day. [23] Mr. McEwan’s evidence is that he does not recall making any such representation and that the price he quoted would probablyhave been available the next day or even a week later.

He said he does not recall having any conversation with Dimitrios on March 1,2011 about pricing. He said there were no “specials” going on at that time, and that he was not aware of Northwest’s day-to-day pricingas it would be up to Northwest’s office to set the pricing. [24] According to the excerpts Andreas’ counsel provided to me from the text on The Law of Contract, by G.H.L.

Fridman, 3d ed., afraudulent misrepresentation is defined, at p. 294, as “one which is made with knowledge that it is untrue and with the intent todeceive.” Then at p. 295, the text contains the following discussion: A fraudulent misrepresentation consists of a representation of fact made without any belief in its truth, with intent that the person towhom it is made shall act upon it and actually causing that person to act upon it. . . . to establish a case of false or fraudulentmisrepresentation the following had to be established: (1) that the representations complained of were made by the wrongdoer to thevictim; (2) that these representations were false in fact; (3) that the wrongdoer, when he made them, either knew that they were false ormade them recklessly without knowing whether they were false or true; (4) that the victim was thereby induced to enter into the contractin question. [25] Further at p. 296, the text states: “[r]epresentation to give grounds for the avoidance of a contract must be matters of fact andthis means either an existing fact or a past event.” [26] Northwest’s counsel submits that Mr.

McEwan’s evidence indicates that he did not make the alleged statement regarding thepricing. He says even if he did, it should be disregarded as a “puff” or an opinion as the alleged statement does not relate to an existingfact, but rather to a future opinion. A commendatory statement or “mere puff” is not actionable: Ordog v. Mission (District), (1980), (BC SC), 110 D.L.R. (3d) 718 (B.C.S.C.). He says a high standard of proof is required to establish fraud, and it mustbe strictly proven, but in this case, Andreas has not done so. I agree. [27] The evidence does not support a finding that Mr.

McEwan made a fraudulent misrepresentation to Dimitrios to induce him toenter into the Agreement. While Mr. McEwan admitted that he was eager to make a sale to Andreas as he would receive a commissionand it would also improve his sales figures as his sales were lagging, those facts alone are not sufficient to conclude that he had adishonest intent for pecuniary gain. [28] The following passage from the text I refer to above, at pp. 296 and 297, also provides some guidance in this respect: Facts must also be differentiated from opinion. . . .

The courts have been anxious lest a party who found he had not obtained as good abargain as he expected be permitted to avoid the contract, on the basis of misrepresentation, merely by alleging that he was misled. Fraud is something to be proved very strictly, not lightly alleged and accepted. Indeed on occasion courts have been prepared to acceptthat what a party said amounted only to “puffing”, simplex commendatio, the mere aggrandizement of his own wares or property, out of adesire to do business, not a fraudulent deception. [29] Andreas has not strictly proven the fraudulent misrepresentation it alleges.

It has not demonstrated the allegedmisrepresentation was made in relation to an existing fact that was material or substantial, or went to the root of the contract [Ross v.Mross (Mross Imports), 2011 BCSC 935, para. 15]. Therefore, the Agreement cannot be set aside on this basis. [30] Based on all of the evidence before me, I conclude that both of Andreas’ defences fail, and the Agreement is enforceable. II. Did Andreas breach the Agreement? [31] According to the Agreement, Northwest’s services were to commence on May 1, 2011. Both Mr.

McEwan’s testimony and theNorthwest’s file notes on Andreas’ account (the “File Notes”) indicate that when Northwest delivered its waste bins on April 28, 2011 toAndreas to commence Northwest’s services on May 1, 2011, Dimitrios refused to accept them. In this respect, the File Notes contain theentry: “4/28/11 Devin tried to deliver but Bin was refused by Dimitrios as they are w/ Super Save for another 8 to 9 months. cw”. [32] The File Notes contain a chronological account of all of the communications between Northwest’s and Andreas’s personnel.

These are notes kept in the ordinary course of Northwest’s business. [33] Dimitrios’ evidence is that within two or three days of signing the Agreement, he called Mr. McEwan and cancelled theAgreement. This is inconsistent on a number of fronts: (

a) Mr. McEwan’s evidence is that he does not recall speaking with Dimitrios after March 1, 2011 about anything, let alone anycancellation; if he had known about any cancellation, he would have notified Northwest’s office immediately; any follow-up with respectto getting a copy of the 2006 SS Contract or any other issue regarding Andreas’ account would have been done by Northwest’s office;

and he left Northwest’s employ some time in April, 2011, and was not there on April 28, 2011 when the bin delivery was attempted. (

b) There is no reference to any cancellation of the Agreement in the File Notes. The only entry in March, 2011 is to the signing up, and the terms, of the Agreement. The next relevant entry is the bin delivery attempt on April 28, 2011. What is interesting about this entry is that it refers to Dimitrios indicating to Devin (the bin delivery person) that Andreas was still with Super Save for another eight to nine months, when in fact the 2006 SS Contract was for a term of five years with an effective date of March 21, 2006 and an end date of March 20, 2011.

The evidence indicates that Dimitrios, more likely than not, knew about this date as he mentioned to Mr. McEwan in his first conversation with Dimitrios that the 2006 SS Contract was coming up for renewal shortly. Then, on April 7, 2011, Dimitrios signed the 2011 SS Contract on more favourable terms and pricing than what was agreed to under the Agreement. (

c) What is troubling is that when Dimitrios knew he signed the 2011 SS Contract on April 7, 2011 for a three-year term, why he suggested to Devin on April 28, 2011 that Andreas was still with Super Save for another eight to nine months. (

d) Also troubling is Dimitrios’ evidence that he spoke with a lady from Northwest in mid-March, 2011 calling about the Agreement and that he told her to talk to the salesman (Mr. McEwan) about the cancellation. He said the same lady called again and he told her the same thing again, but the bins showed up two weeks later. All of this inconsistent with the entries in the File Notes. There are no entries in the File Notes about these conversations.

The first entry regarding the follow-up from the lady that Dimitrios was referring to was on May 3, 2011, a few days after the bin delivery attempt, and it reads as follows: “5/3/11 met with Dimitrios. never got copy of the agreement from SSD. explained to him that’s fine we can wait until agreement is over but need a copy. explained the 60 day out dates. he will try to get a copy from them asap and get back to me /mb”. (

e) What is extremely troubling about this entry is if Dimitrios cancelled the Agreement, as he alleges, and he entered into the 2011 SS Contract on April 7, 2011, it is not clear why he continually provided misinformation to Northwest personnel, leading them to believe that he was still working with them. This back and forth communication carried on until October, 2011. [ 34 ] For the reasons mentioned above, I completely reject Dimitrios’ evidence that he cancelled the Agreement. I find that he did not cancel the Agreement.

Even if he did, there is no evidence to suggest that Northwest accepted Andreas’ termination. In fact, Northwest continued its efforts for many months to seek performance under the Agreement. [ 35 ] Based on the evidence before me, I conclude that by Andreas entering into the 2011 SS Contract in contravention of the terms of the Agreement, it breached the Agreement. III. What is the appropriate quantum of damages? [ 36 ] According to the Agreement, Northwest was to have the “sole and exclusive right” to service Andreas’ Langley location.

The “Failure to Perform” clause contained in this Agreement provided, among other remedies, the following: If Customer purports to terminate this Agreement prior to the expiration of its term, Northwest will have the option to . . . (

b) accept the purported termination by Customer and terminate this Agreement, in which instance, Customer agrees to pay Northwest, as liquidated damages, an amount equal to the greater of (1) sum of Customer’s monthly billing for the most recent twelve months, or, if Customer has not been serviced for twelve months, Customer’s average monthly billings for the months serviced, or if none, the billing projected by Northwest for the first month, in each case multiplied by twelve or (2) the sum of amounts due to Northwest for the balance of the term remaining on this Agreement.

Customer acknowledges that the foregoing liquidated damages are reasonable in light of the anticipated loss to Northwest caused by the termination and are not imposed as a penalty. . . . [emphasis added] [ 37 ] As noted earlier, Andreas did not make any payments to Northwest. Therefore, according to the above clause, it is entitled to damages equal to $5,808.00, being the total due for the balance of the term of the Agreement. [ 38 ] Initially, Andreas raised the issue of the enforceability of this clause alleging that the balance due is not liquidated damages, but rather a penalty.

However, in light of the decision in Super Save Disposal Inc. v. Tristar Cap & Garment Ltd. , 2014 BCSC 690 , it abandoned this argument. [ 39 ] The court in dealing with a similar “Failure to Perform” clause in Tristar concluded that that clause was a genuine pre-estimate of damages and not a penalty, and that the appropriate measure of damages was the loss of the income stream under the contract, less the costs of providing the services prescribed in the contract [paras. 32, 34, 35, 45 and 46]. [ 40 ] Tristar is binding on this court.

I too conclude that the appropriate quantum of damages Northwest is entitled to is the loss of the income stream under the Agreement for the balance of the two-year term, being 22 months, at $264.00 per month. CONCLUSION [ 41 ] I conclude that there was no oral condition precedent to the Agreement and the Agreement was not secured by fraudulent misrepresentation. Therefore, the Agreement is enforceable. Andreas breached the terms of the Agreement and is liable to Northwest. The appropriate quantum of damages is the loss of the income stream Northwest suffered under the Agreement.

ORDER [ 42 ] I order that, within 90 days of the date of this judgment, Andreas shall pay to Northwest the sum of $5,984.00, comprising the

liquidated damages of $5,808.00, filing fees of $156.00, and service fees of $20.00. By the Court The Honourable Judge V. Chettiar Provincial Court of British Columbia