Yang v. Soosweet Date:, 2016 BCPC 385

Citation: Yang v. Soosweet Date: 20161107 2016 BCPC 385 File No: S75361 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Division BETWEEN: YONGJUN YANG dba WY CABINETS & MILLWORK CLAIMANT AND: SOOSWEET SHOP LTD. dba SWEET FACTORY DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE R. HAMILTON Appearing in person: Yongjun Yang Appearing for the Defendant: Xiaojuang Chi Place of Hearing: Surrey , B.C. Dates of Hearing: July 31, 2015; November 16, 2015; June 27 and 28, 2016; August 17, 2016; September 16, 2016 Date of Judgment: November 7, 2016

INTRODUCTION [ 1 ] Yongjun Yang is a carpenter. He builds and installs cabinets and shelves for homes and businesses. [ 2 ] Soosweet Shop Ltd. (“Soosweet”) carries on business as the Sweet Factory - a candy store - in Surrey’s Guilford Town Centre shopping mall (the “Guilford Mall”). [ 3 ] In 2013, the Guilford Mall was nearing the end of a major renovation/expansion of the shopping mall. Soosweet was opening a new store in the mall. [ 4 ] Soosweet hired Mr. Yang to build and install cabinets and shelves in the new candy store. Mr.

Yang was faced with a very tight deadline to complete his work for Soosweet, but he committed to completing his work by August 25, 2013. [ 5 ] Soosweet was obliged to be open and operational for the formal opening of the expanded and renovated Guilford Mall on August 28, 2013. [ 6 ] Alas, Mr. Yang was unable to complete his work on time, with the unhappy result that Soosweet missed the grand opening of the mall. Soosweet opened two days late on August 30, 2013. [ 7 ] Over the months of September and October, 2013, Mr. Yang completed his work. On December 10, 2013 Mr.

Yang presented Soosweet with his final invoice that exceeded the agreed upon price of his carpentry work by nearly $10,000.00. As of December 10, 2013, Soosweet had already paid Mr. Yang $19,000.00 towards the cost of this renovation project. Soosweet refused to pay Mr. Yang’s final invoice, so he commenced this lawsuit. [ 8 ] In response, Soosweet denies it owes Mr.

Yang any more money and counterclaims for, among other things, Soosweet’s lost business opportunity as a result of missing the Guilford Mall’s grand opening on August 28, 2013. [ 9 ] In this decision I must determine if either party is obliged to compensate the other party. Despite the fact that I heard evidence only from Mr. Yang and Ms. Xiaojuang Chi (“Ms. Chi”) – a principal/owner of Soosweet – this trial occupied five days, with a further half day for final argument. [ 10 ] Both Mr. Yang and Ms. Chi required the assistance of Mandarin interpreters – Ms. Mo and Ms. Yao.

To each of you, I am indebted to you for your outstanding

interpretation services throughout this lengthy and at times complicated trial. BACKGROUND [ 11 ] During the spring of 2013, the Claimant provided a number of quotations to the Defendant for the renovation of the Defendant’s candy store in the Guilford Mall. While I do not know this for certain, I believe that the candy store was a new store that was not previously operated by the Defendant in the shopping mall. [ 12 ] The Claimant’s quotations were delivered by e-mail and there is no dispute that the quotations were delivered.

The first quotation was for a fixed price of $26,270.00 plus tax, up to $27,820.00 plus tax, depending on some of the supplies used. The first quote was delivered by e-mail on June 23, 2013. [ 13 ] The second quote was for $25,460.00 plus tax, after some changes were made to some of the work to be done. The second quote was delivered by e-mail on June 28, 2013. [ 14 ] The third and final quote was for a fixed price of $23,850.00 plus tax. Mr. Yang told the Defendant that his final price included a discount. [ 15 ] On July 31, 2013, Mr. Yang wrote out a handwritten receipt to Ms.

Chi, acknowledging that he had received a $10,000.00 deposit for the construction project. On that receipt Mr. Yang wrote that the final contract price is $22,800.00 (I assume plus tax). So, Mr. Yang had given the Defendant a further $1,050.00 discount on the cost of his work. Mr. Yang’s deposit receipt states, “I confirm this whole project should be completed by August 25, 2013.” – Exhibit 2, Tab 13, page 3. [ 16 ] Accompanying Mr.

Yang’s quotations were rudimentary drawings of the proposed layout of the Defendant’s candy store. [ 17 ] As with many major construction/renovation projects, unforeseen problems arose in the business relationship between the Claimant and the Defendant. Some changes were necessary to the project. Some items were added and some items were deleted.

The result, quite reasonably, would be changes in the cost of the project. [ 18 ] It appears to me to be quite rare in fluid construction projects where changes are made and agreed upon, that any of those changes are costed out by the builder on notice to the business/home owner. That unfortunate void is what often leads to conflict between the builder and the business/home owner. This case is no exception. [ 19 ] The final agreement between the parties was reached on July 31, 2013.

As of that date, the Defendant paid the $10,000.00 deposit and the Claimant began building the component parts for this renovation project. The Claimant said that he needed two to three weeks to complete the project and the project was to be completed by August 25, 2013, giving Mr. Yang ample time based upon his own time estimate. The completion date of August 25, 2013 would leave the Defendant sufficient time to have the store examined by the health authority and the shelves stocked with candy and merchandise for the grand opening of the mall. [ 20 ] During this trial, Mr.

Yang complained that his work was delayed because the floors in the Defendant’s business were not completed until August 22, 2013, leaving Mr. Yang insufficient time to install his handiwork in the Defendant’s business premises to

meet the deadline for the mall opening. [ 21 ] The difficulty I have with Mr. Yang’s complaint is that he confirmed he needed three to five days to install his cabinets and shelves in the Defendant’s store, and he had four days to do his work between August 22 and August 25, 2013, the date he had committed to completing his work on back on July 31, 2013. The inspection by the health authority was scheduled for August 27, 2013, which gave Mr. Yang August 26, 2013 in the event that his installation took longer than expected. [ 22 ] In fact, on August 24, 2013, it was clear that Mr. Yang’s work was far from done.

In an angry exchange with Ms. Chi – who was under considerable pressure to have her store opened on time – Ms. Chi told Mr. Yang to take all of his handiwork away and that she was not going to open her store. While that seems like a drastic reaction to Mr. Yang’s project delays, under the circumstances such a knee-jerk reaction is understandable. [ 23 ] Ms. Chi’s husband, Andrew, then intervened and had Mr. Yang return to work on installing his cabinets and shelves in the store.

What was then readily apparent was that some temporary measures would be needed in order for the store to open on time. [ 24 ] It was under these rather stressful conditions that changes were made to the work Mr. Yang was to perform for the Defendant. There was no discussion of any price changes in the contract when these project changes were agreed upon. [ 25 ] On August 27, 2013, the Health Inspector visited the Defendant’s store and it was in no condition to be opened on time the following day.

The result was that the Defendant’s store did not open until August 30, 2013 – two days late – with a number of changes to the agreed upon contract. [ 26 ] Through September and October 2013, Mr. Yang delivered and installed more of his handiwork in the Defendant’s store. [ 27 ] On December 10, 2013, Mr. Yang delivered his final invoice to the Defendant. I have a concern about Mr. Yang’s final invoice. My concern is that the Claimant has changed his final invoice from the one he delivered on December 10, 2013.

The final invoice he presented to me in court during the course of this trial is different, in significant ways, from the invoice he presented to Soosweet on December 10, 2013. [ 28 ] The final invoice delivered on December 10, 2013 showed a total contract price, inclusive of interest, of $34,683.00, less the $19,000.00 the Defendant paid to the Claimant over the course of this project, leaving a balance owing of $15,683.00. [ 29 ] Curiously, two days later on December 12, 2013, the Claimant commenced this lawsuit claiming he was owed $11,789.92, plus $842.98 in interest, for a total claim, inclusive of costs and interest, of $12,895.15, so nearly $3,000.00 less than the amount that showed as owing two days earlier on his final invoice. [ 30 ] At trial, Mr.

Yang produced a modified “Final Invoice” but kept the date of his original invoice “December 10, 2013” on the document. The new “Final Invoice” sets out a total contract price of $38,651.76, less the $19,000.00 paid toward the project by the Defendant, leaving a balance owing of $19,651.76. [ 31 ] Mr. Yang described the fluid “Final Invoice” amount as the result of him checking carefully, in preparation for this trial, what he charged the Defendant for additional work and changes to the contract agreed to by the parties during the renovation project. I have difficulty with the Claimant’s evidence on this point.

Both parties agree that Mr. Yang repeatedly attended at the Defendant’s store in an effort to be paid the balance owing to him on his “Final Invoice”. When the Defendant refused to pay the invoice Mr. Yang filed this claim for $11,789.92. My view is that it is not open to Mr. Yang to adjust the value of his claim upwards by nearly $8,000.00 on the first day of trial, with no notice or explanation given to the Defendant prior to the trial. Accordingly, I will proceed with the Claimant’s claim as pleaded by Mr. Yang in his Notice of Claim filed December 12, 2013.

I consider the Claimant’s claim to be valued as pled at $11,789.92, being the amount the Defendant was notified of prior to the start of the trial. [ 32 ] Soosweet’s Counterclaim has some difficulties as well. The Counterclaim, combined with the attachments to the Counterclaim which purport to explain the claims advanced in the Counterclaim, amount to pleading evidence rather than material facts. However, I must take into account that Ms. Chi has no legal training and the attachments to the Counterclaim are an effort by a litigant to explain the claim.

So, while improperly pleaded, the explanation is understandable. [ 33 ] The amount the Defendant claims against the Claimant in the Counterclaim is $15,296.00, made up in large measure by two components. [ 34 ] First, the Defendant says the Claimant failed to deliver some of the cabinets/shelves set out on the drawings for the project. The Defendant says that the value of the work not delivered to the Defendant’s store is $7,785.00. [ 35 ] Second, the Defendant claims that the late opening of the store in the Guilford Mall cost the Defendant lost business valued at $14,445.00.

That lost business is calculated based upon the average daily business during the Christmas shopping season which has public traffic at the shopping mall on par with the public traffic on August 28, 2013 on the mall’s opening day.

A second component of the lost business claim is the Defendant’s assertion that with certain cabinets and shelves not delivered on time, Soosweet was unable to display some merchandise and as a result lost an opportunity to sell some of their goods. [ 36 ] The difficulty with the first component of the Defendant’s Counterclaim is the value of the undelivered cabinets/shelves is based upon an estimate taken from some of the delivered goods. The result is a rather inexact method of determining the value of the goods not delivered.

Unfortunately for both parties, there were no cost estimates produced for any of the changes in the work on this project. So, the best either party can do is to give me their best estimate of the value of the undelivered work product. [ 37 ] The Defendant’s claim for lost business for two days is inherently speculative. But there can be no doubt that the failure of the Defendant to open its store for the Guilford Mall grand opening cost the Defendant a business opportunity.

The value of that lost opportunity is somewhat difficult to quantify, but the Defendant has quantified that loss by comparing the company’s profit during their

Christmas season and relies on the daily profit at Christmastime to fix the lost business opportunity for the two days missed during the mall’s grand opening at the end of August, 2013. [ 38 ] Soosweet’s claim for lost revenue and profit as a result of not being able to display some merchandise for sale is even more speculative than the lost business opportunity due to missing the Guilford Mall’s opening in August, 2013. [ 39 ] Despite these difficulties in their respective cases I commend the parties for their conduct throughout this trial. They were both meticulously organized.

Each filed a document binder that set out the various items claimed and their value in support of the competing claims before me. I will now turn to consider each of the claims advanced, and I will reach a conclusion on each item after my discussion about the claims. DISCUSSION AND ANALYSIS [ 40 ] While Mr. Yang and Ms. Chi, on behalf of Soosweet, raise a very large number of complaints in their claims before me in this trial, I do not propose to review each complaint in much detail. To do so would result in a judgment well over 100 pages in length. [ 41 ] In broad terms, Mr.

Yang says that the original contracted agreement with Soosweet was for $22,800.00 plus tax. He says further that some changes were made to some of the cabinets and shelves and those changes affected the cost of the project. He says that Soosweet has only paid him $19,000.00, so an amount less than the original contract price before taxes and the adjustments to the cost of the project after factoring in the changes. [ 42 ] Mr. Yang’s “Final Invoice” dated December 10, 2013 would have had a balance owing of about $11,790.00.

The “Final Invoice” entered into evidence as Exhibit 3 bears the date of December 10, 2013, but it also includes an interest charge from December 1, 2013 up to October 1, 2014. So, Exhibit 3 is an example of Mr. Yang making changes to his “Final Invoice” and including things like interest while maintaining the invoice date of December 10, 2013. That practice should be discouraged because it is somewhat deceiving. [ 43 ] In any event, the “Final Invoice” entered into evidence as Exhibit 3 and the “Final Invoice” tendered at Tab 1 of Exhibit 1 both include a charge for interest based upon a 15% interest rate.

Nowhere in the agreement with Soosweet did the Defendant agree to pay 15% interest on unpaid balances owing to Mr. Yang. [ 44 ] Mr. Yang settled on the 15% interest rate because he says that is the interest rate charged to him on unpaid credit card balances. The amount of interest included on the invoice marked as Exhibit 3 is $3,848.74, but Mr. Yang did not explain how he arrived at that figure. That figure is not 15% of the balance owing to Mr. Yang under the original contract. [ 45 ] In any event, with no agreement to charge 15% annual interest on unpaid balances owing to Mr. Yang, it is not open to Mr.

Yang to impose that interest rate on Soosweet. So, if I conclude that Soosweet owes money to Mr. Yang, that balance owing will attract court ordered interest at the Registrar’s rates. [ 46 ] The major difficulty with Mr. Yang’s claim against Soosweet is the fact that the changes to the renovation of Soosweet’s candy store were not costed by Mr. Yang until he presented his “Final Invoice” to Ms. Chi in an amount well in excess of the original quote. Ms. Chi, quite understandably, was caught off guard when she received such a sizeable bill with a large balance owing. [ 47 ] Ms.

Chi, on behalf of Soosweet, acknowledges she must pay for some of the changes made in the project, but she calculates the amount she must pay based upon the cost estimates of various components of this renovation project in Mr. Yang’s original drawings for the project. [ 48 ] Mr. Yang complains that the cost attributed to the changes by Ms. Chi does not reflect the true value of the materials and his labour to make the agreed upon changes. [ 49 ] Another difficulty with Mr. Yang’s claim is that he said he would complete the project by August 25, 2013, and he failed to do so.

Some of the changes in the project included some temporary cabinets and less complicated shelving in order to try and meet the August 28, 2013 deadline to open the store. [ 50 ] So, while some of the changes were in fact agreed upon, some changes were needed simply in order to try and get the candy store open on time, which did not happen. Soosweet argues that any expenses incurred by Mr. Yang to install temporary cabinets and shelving ought to be at Mr. Yang’s expense, as those temporary measures were required due to the fact that Mr.

Yang failed to meet the agreed upon deadline for the completion of the project. [ 51 ] Also, in broad terms, Soosweet’s defence to Mr. Yang’s claim is that Mr. Yang has overcharged for some of the changes to the project. [ 52 ] Soosweet argues that some of the work that was included in the original agreement was never done by Mr. Yang, so the value of the work/materials not done in the Defendant’s store must be deducted from the amount owing to Mr.

Yang. [ 53 ] And finally, Soosweet seeks to be reimbursed for the lost business to its candy store, because Soosweet could not capitalize on the heavy public traffic throughout the Guilford Mall on August 28 and 29, 2013.

THE DISPUTED CLAIMS A. Credibility [ 54 ] Before turning to the individual claims advanced by the parties, I wish to make some comments on the credibility of the parties. [ 55 ] Mr. Yang came to court with a very well organized binder of documents. But there was nothing in that binder of documents supporting the value of the additional work he performed for Soosweet. As I have said, there were many last minute changes to the project in order to try and meet the deadline to open for the mall on August 28, 2013. Despite those last minute changes, Soosweet was unable to open on time.

But with nothing to support his additional charges for the last minute changes, it is difficult for me to assess whether the additional charges in his amended “Final Invoice” are reasonable. [ 56 ] In contrast, Ms. Chi places a value of some of the additional charges based upon the value of some of the cabinets and shelves in the original drawings for this project. I find Ms. Chi’s approach to costing the additional work and cabinet/shelves supplied by Mr. Yang to be a reasonable approach to those items. [ 57 ] Also, with respect to credibility, I found that Mr.

Yang was, at times, argumentative and defensive in his evidence. The greatest concern I have for Mr. Yang’s evidence is his manipulation of his “Final Invoice” in anticipation of his evidence at trial. Rather than advance his claims as pleaded in his original Notice of Claim, Mr. Yang tried to advance claims for greater values for additions to this project and lesser deductions for changes to this project. The result is that I find that much of Mr. Yang’s evidence is not reliable; rather, it has been reconstructed to match different claims Mr.

Yang advanced at trial rather than the claims he advanced in his original Notice of Claim. [ 58 ] Ms. Chi was equally well organized but unlike Mr. Yang she did not advance different values for the work done in defence of Mr. Yang’s claims or in pursuit of Soosweet’s Counterclaim. Her answers were responsive to the questions asked and she was not argumentative or defensive during her testimony. [ 59 ] In short, where the evidence of Mr. Yang and Ms. Chi conflicts, I prefer the evidence of Ms. Chi. B.

The Claims [ 60 ] As I indicated earlier in these reasons, the multitude of claims advanced and deductions sought by the parties in support of their respective positions before me were extensive. I have tried my best to capture most of those claims and deductions in dispute between the parties and I have reached a decision with respect to those I list below. i. The Main Display Cabinet [ 61 ] The Main Display Cabinet is item #20 in the Claimant’s drawings for this project. Mr. Yang built the Main Display Cabinet but it was unsatisfactory to Ms. Chi, so Mr.

Yang had to remove the cabinet and build a slightly different Main Display Cabinet. [ 62 ] When Mr. Yang produced his December 10, 2013 “Final Invoice”, he included a cost for the redone Main Display Cabinet of $2,800.00. Mr. Yang did not discuss with Ms. Chi that he was going to charge Soosweet this amount for the redone Main Display Cabinet. Ms. Chi says that when they discussed having to redo the Main Display Cabinet, Mr. Yang said he would do the work and supply the materials for $1,800.00. Mr. Yang denied he made any such commitment to Ms.

Chi. [ 63 ] My view is that $2,800.00 for the redone Main Display Cabinet is not an unreasonable charge. Soosweet says that a reasonable cost for the cabinet in question in Dispute #2 from the Defendant’s book of documents is $350.00, and the Main Display Cabinet is the equivalent of about eight of the cabinets in Dispute #2. Eight of those cabinets would cost $2,800.00, which is what Mr. Yang included on his “Final Invoice”. However, Ms. Chi was adamant that Mr. Yang quoted her a cost of $1,800.00 to redo the Main Display Cabinet and I believe her. [ 64 ] For the reasons I have already given, I accept Ms.

Chi’s evidence where it conflicts with Mr. Yang’s evidence, so in sorting out who owes who money in this dispute I will include $1,800.00 as owing by Soosweet to Mr. Yang for the redone Main Display Cabinet. ii. Candy Bin Support Shelves [ 65 ] This dispute concerns laminate top faces on support shelves that Mr. Yang was supposed to supply but did not. These laminate top faces were included in Mr. Yang’s original quotation and were supposed to be installed on the Candy Bin support shelves, as well as other countertops and wall cabinets. They were not supplied and installed by Mr.

Yang, and there is no dispute that there should be a deduction in Mr. Yang’s “Final Invoice” for the value of these laminate top faces. [ 66 ] When Mr. Yang produced his “Final Invoice” on December 10, 2013, he included a $935.00 deduction for these laminate top faces. When Mr. Yang produced his modified “Final Invoice” on the first day of this trial, he had reduced that deduction to $850.00. Mr. Yang had no plausible explanation for this change. [ 67 ] Ms. Chi, on behalf of Soosweet, argues that the deduction should be $1,380.00 and not $935.00 or $850.00. The thrust of Ms.

Chi’s argument is that if the laminate top faces for the Candy Bin support shelves were properly costed at $935.00, then adding the cost of the laminate top faces on the other counter-tops and wall cabinets would increase that deduction to at least $1,380.00. [ 68 ] My view is that Ms. Chi’s argument to increase the deduction to $1,380.00 is reasonable. Essentially, she says that the cost of the laminate top shelving that Mr.

Yang agreed to supply and install, and which he did not supply and install on the counter-tops and wall shelving should be $445.00, if the cost of that laminate top shelving on the Candy Bin shelves is $935.00. It is not possible on the evidence before me to arrive at a precise calculation of the total surface area of the Candy Bin shelves versus the other counter-tops and wall shelves, but looking at the many different drawings and photographs of Soosweet’s candy store, as I have said, Ms. Chi’s estimate

seems reasonable. [ 69 ] Accordingly, in arriving at my final calculation in this case, I will deduct $1,380.00 from Mr. Yang’s “Final Invoice” for the cost of the laminate top shelving he did not supply and install as agreed upon in his original quotation. iii. Cash Counter Re-design and Re-fabrication [ 70 ] When Mr. Yang installed the cash counter in Soosweet’s candy store he discovered that the counter needed to be re-designed in order to properly accommodate the cash register. So, Mr. Yang removed the cash counter, re-designed it, rebuilt it, and re-installed it. [ 71 ] On his “Final Invoice”, Mr.

Yang included an additional charge of $850.00 for the cost of removing, re-designing, rebuilding, and re-installing the cash counter. [ 72 ] Ms. Chi argues that Soosweet should not be charged extra for the faulty design of the original cash counter and the attendant costs of removing it, re-designing it, rebuilding it, and re-installing it. I agree. [ 73 ] Accordingly, when reaching my final calculation in this case, I will not add to Mr. Yang’s “Final Invoice” the $850.00 he charged Soosweet for the cost of the rebuilt and re-installed cash counter. iv. Candy Bin Shelf Re-design [ 74 ] On Mr.

Yang’s “Final Invoice”, he included an additional charge of $300.00 as the cost of re-designing the Candy Bin shelves. [ 75 ] Ms. Chi says that Soosweet should not have to pay anything if Mr. Yang had to re-design the Candy Bin shelves, because on August 6, 2013 she emailed Mr. Yang the dimensions of the Candy Bins. In short, Mr. Yang had plenty of time to design the Candy Bin shelves to meet the dimensions of the Candy Bins. [ 76 ] I agree with Ms. Chi. I will not add the cost of the Candy Bin shelf re-design of $300.00 from Mr.

Yang’s “Final Invoice” when I calculate the amount owing at the end of this decision. v. Storage Room Cabinets [ 77 ] The parties agree that the two storage room cabinets were an addition to the original agreement and Soosweet is obliged to pay extra for those cabinets. Where the parties disagree is, what is a reasonable additional cost of those cabinets? [ 78 ] On his “Final Invoice”, Mr. Yang charged Soosweet $350.00 for each of the two cabinets, so $700.00. The storage room cabinets’ dimensions are 34 inches high, 20 inches wide, and 11 inches deep. [ 79 ] On his original drawings, Mr.

Yang charged Soosweet $120.00 per cabinet for two cabinets that measure 39 inches high, 37.5 inches wide, and 11 inches deep. Ms. Chi argues that these larger cabinets in the original drawing are a good comparator for the additional cost of the cabinets in the storage room. I agree. [ 80 ] Mr. Yang argues that there is added cost to make additional cabinets because the original cabinets are discounted in price given the size of the job. In other words there is something of a volume discount. [ 81 ] While that may be so, Mr.

Yang gave me nothing upon which I could rely to determine that his charge of $350.00 per storage room cabinet was a reasonable additional charge. Especially in light of the fact that he never discussed with Ms. Chi what he would charge Soosweet for these storage room cabinets. [ 82 ] Accordingly, I will add to Mr. Yang’s “Final Invoice” $240.00 for the two storage room cabinets. vi. Upper and Lower Cabinets Around the Sink in the Storage Room [ 83 ] The upper and lower cabinets in the storage room were included in Mr. Yang’s original drawings and quotation for this renovation project. But, Mr.

Yang did not build and install those cabinets. Accordingly, Soosweet argues that the value of those cabinets ought to be deducted from Mr. Yang’s “Final Invoice”. [ 84 ] Mr. Yang argues that Ms. Chi cancelled the upper and lower cabinets around the sink in the storage room before he started his work, so they were not included in his quotation. [ 85 ] I reject Mr. Yang’s evidence on this point. Ms.

Chi testified that the change to the upper and lower cabinets occurred when they learned from the Fraser Health Authority that Soosweet needed a two compartment sink with drain boards on either side, so they did not need a cabinet to hold the sink. This information from the Fraser Health Authority clearly came after the agreement had been reached between these parties. [ 86 ] Regardless, I agree with Soosweet that the original quotation included upper and lower cabinets around the sink in the storage room that Mr. Yang never supplied and installed, and the value of those cabinets must be deducted from Mr.

Yang’s “Final Invoice”. [ 87 ] Ms. Chi argues that the value of those cabinets is $800.00. Mr. Yang did not give me a value of those cabinets because it was his position that the cabinets were not included in the original quotation. [ 88 ] Accordingly, I will deduct $800.00 from Mr. Yang’s “Final Invoice” in arriving at my decision in this case. vii. Two Large Display Cabinets

[ 89 ] Both parties agree that Soosweet added two large display cabinets to the project that were not included in Mr. Yang’s original quotation. The parties differ on what Mr. Yang should be paid for these additional cabinets. [ 90 ] Mr. Yang’s “Final Invoice” included an extra charge of $1,700.00 for these large cabinets, so $850.00 each. Mr. Yang gave me no evidence in support of this value for the additional cabinets. [ 91 ] In response, Ms.

Chi compares the dimensions of these additional cabinets with the dimensions of cabinets in the original quotation and the cost of those cabinets in the original quotation in arriving at what she says Soosweet should be charged for these additional large cabinets. [ 92 ] Mr. Yang charged Soosweet $120.00 per cabinet for cabinets in the original quotation measuring 39 inches high, 37.5 inches wide, and 11 inches deep. The additional large cabinets measure 55 inches high, 58 inches wide, and 12 inches deep.

So, the dimensions of these additional large cabinets are about one-and-a-half times larger than the smaller cabinets in the original quotation. [ 93 ] Ms. Chi argues that she should pay an amount slightly less than three times the cost of the smaller cabinets and proposes that she pay $350.00 for each of the additional larger cabinets, for a total additional cost of $700.00 before tax. [ 94 ] I find that Ms. Chi’s costing for the amount Soosweet should pay Mr. Yang for the additional large cabinets is reasonable and fair. Mr.

Yang again argues that there is a volume discount on the individual pieces included in his original quotation and I do not disagree with him on that. But, I find that a fair price for these additional large cabinets is an amount roughly three times the cost of the slightly smaller cabinets in the original quote. [ 95 ] Accordingly, I will add $700.00 to Mr. Yang’s “Final Invoice” for the additional large cabinets when I determine the amounts owing between these parties at the conclusion of this decision. viii. Candy Bin Top [ 96 ] Mr.

Yang’s amended “Final Invoice” presented at trial before me included an additional charge of $300.00 for the candy bin tops. He listed five of these items at $60.00 each. [ 97 ] Ms. Chi says that the candy bin tops were included in Mr. Yang’s original quotation as items #30 and #32. I agree with Ms. Chi and find that Mr. Yang cannot add this charge of $300.00 to his final invoice. As with the other additional items included in Mr. Yang’s “Final Invoice” presented at the start of this trial, he gave me no evidence in support of the amount charged for the candy bin tops, so I decline to award him that amount. ix.

Storage Shelves in the Storage Room [ 98 ] This is a confusing claim. On his final invoice, Mr. Yang included as an extra charge the cost of ten shelves at $90.00 each, for an additional charge of $900.00 before taxes. These storage room shelves were a last minute addition to the project, because Mr. Yang did not have time to build a storage room cabinet to meet the opening day deadline of August 28, 2013. So, he installed a temporary cabinet from Ikea and then later came and installed these permanent shelves in the storage room. [ 99 ] Ms.

Chi argues that Soosweet should pay nothing for these shelves because they were not installed on time, they were replaced with the temporary cabinet from Ikea, and then the shelves were installed later by Mr. Yang. [ 100 ] I do not know who paid for the temporary Ikea cabinet. I have no idea what happened to the temporary Ikea cabinet. [ 101 ] Mr. Yang gave me no evidence as to how he arrived at $900.00 for the cost of these storage room shelves. Ms. Chi simply says Soosweet should have the benefit of these shelves for free as they were delivered late. [ 102 ] I am concerned because Mr.

Yang has overcharged in a significant way for some of the additions to this project included in his amended “Final Invoice”. I have no way of knowing if $900.00 is a fair price to charge Soosweet for these shelves. [ 103 ] In the final analysis, with nothing but Mr. Yang’s estimate of the cost of these shelves, any different price I place on the shelves would be pure speculation, and I am not prepared to do that. [ 104 ] Accordingly, in calculating the amount Soosweet is to pay Mr. Yang for this candy store renovation, I will add $900.00 plus tax for the addition of the storage room shelves. x.

One Inch Laminate Edges on Wall Cabinets and Shelves [ 105 ] When Ms. Chi was determining how she wanted her candy store to look, she decided that she wanted her candy shelves and cabinets to have edges similar to the edges of shelves and cabinets in a nearby store called the Nutrition House. Ms. Chi took Mr. Yang to the Nutrition House to show him the edging she wanted in Soosweet’s candy store. [ 106 ] The shelf and cabinet edging that Ms. Chi chose was a one inch laminate edge strip to be applied to the shelves and cabinets. When Mr.

Yang realized that he did not have enough time to complete this project in time for the Guilford Mall grand opening, he spoke to Ms. Chi about cancelling the one inch laminate edging. Ms. Chi agreed. [ 107 ] However, in his “Final Invoice”, Mr. Yang failed to credit to Soosweet the cost of the materials and installation of this one inch laminate edging. [ 108 ] Mr. Yang believes there should be no deduction for the one inch laminate edging he agreed to supply and install, but that he did not supply and install.

[ 109 ] Ms. Chi is of the view that the cost of that one inch laminate edging is $680.00. Ms. Chi’s value for the materials and installation of the edging is nothing more than a guess. But Mr. Yang, the best person to provide some reliable evidence as to the cost of the materials and installation of the edging, chose not to give me any indication as to the value of this edging left out of the final project. [ 110 ] Mr. Yang did not argue that Ms. Chi’s estimate of the value of the one inch edging was unreasonable. I suspect that Ms.

Chi has undervalued the cost of the materials and installation of the edging and that is why Mr. Yang remained silent on the topic. [ 111 ] So, with nothing more reliable than Ms. Chi’s guess and Mr. Yang’s silence on the value of the one inch laminate edging left out of the project, I conclude that Ms. Chi’s guess is reasonable if not undervaluing this work. Accordingly, I will deduct from Mr. Yang’s “Final Invoice” $680.00 for the one inch laminate edging that he failed to deliver for Soosweet. xi.

Glass Top for Ice Cream Freezer and Glass Beside Front Door [ 112 ] In deciding how she wanted her ice cream display to look, Ms. Chi determined that she wanted to replicate the ice cream display in the neighbouring Purdy’s candy store. She showed Mr. Yang the Purdy’s ice cream display and he agreed to deliver a similar display. While the evidence is not clear, I gather that Ms. Chi is of the view that the glass for the ice cream display was included in Mr. Yang’s original quote. [ 113 ] Mr. Yang did not deliver anything approaching the Purdy’s display. In fact, if I understand the evidence correctly, Ms.

Chi has in her store an ice cream freezer she owned before the candy store renovation. [ 114 ] On his amended Final Invoice”, Mr. Yang had included, as an additional item, a charge for $540.00 for the front door laminate glass which he delivered. I see no additional charge for anything related to the ice cream display, but that may be because Mr. Yang did not deliver anything related to the ice cream display. [ 115 ] In any event, Ms. Chi argues that Soosweet should have a $1,750.00 deduction from Mr. Yang’s “Final Invoice” for his failure to deliver the glass ice cream display that Ms. Chi had ordered.

I have no idea on what basis Ms. Chi arrives at a value of $1,750.00 for the ice cream display she wanted like the one in Purdys. [ 116 ] Mr. Yang did not argue that Ms. Chi’s value was wrong, and he did not argue against the proposition that he failed to deliver the ice cream display he said he would deliver. [ 117 ] The value of the glass installed by the front door of the candy store was $540.00. It appears to me that the Purdy’s ice cream display would involve less glass but more wood than the glass installed by the front door.

I have no idea what the ice cream display’s value is, but it seems like pure speculation to attribute a value of $1,750.00 to that display as argued for by Ms. Chi. [ 118 ] Accordingly, I will allow a deduction of $1,000.00 which I arrive at by considering the value of the glass by the front door and comparing the photographs of Soosweet’s ice cream display with Purdy’s ice cream display. While I acknowledge that this amounts to some speculation, the difference between what Ms. Chi wanted and what she got is significant. My award of $1,000.00 for this failure by Mr.

Yang to deliver what he agreed to deliver, in my view, is fair. xii. Small Wrapping Shelves [ 119 ] Soosweet argues that $90.00 should be deducted from Mr. Yang’s final invoice because he failed to deliver small wrapping shelves for the store where Ms. Chi could use wrapping paper with ribbons and bows to wrap up her customers’ purchases. [ 120 ] It is not clear to me on the drawings prepared by Mr. Yang that these small wrapping shelves were included in his original quotation. Accordingly, I decline to deduct the $90.00 proposed by Soosweet for these shelves. xiii.

The “L” Shaped Display [ 121 ] Soosweet argues that the cost of an “L” shaped display of cabinets and countertops should be deducted from Mr. Yang’s final invoice, but I disagree. [ 122 ] Mr. Yang’s first quotation included this “L” shaped display, but in his second quotation found in Exhibit 1 at Tab 6 and the drawing found at Tab 7 of Mr. Yang’s documents, clearly the “L” shaped display was no longer included and the cost of that display deducted [ 123 ] Accordingly, there is nothing further to deduct from Mr.

Yang’s final invoice to account for the decision not to include the “L” shaped display in Soosweet’s candy store renovation. xiv. Extra Work [ 124 ] On both Mr. Yang’s “Final Invoice” entered as Exhibit 3 and the amended “Final Invoice” he presented on the first day of this trial, there is a list of “Extra Works” on page two of both “Final Invoices”. Neither party spent any time during their evidence on most of these extras. [ 125 ] Since these items were not disputed by Ms. Chi on behalf of Soosweet I will award Mr.

Yang the following as extra costs of this renovation project: • Video record shelf - $10.00 • 31 inch cabinet shelf - $36.00 • Lock installation - $50.00

• Microwave cabinet top - $25.00 [ 126 ] On his amended “Final Invoice”, Mr. Yang presented at trial, he altered two entries under the “Extra Works”. Whereas initially, in Exhibit 3, Mr. Yang recorded these items as free, on the amended “Final Invoice”, Mr. Yang recorded charges for the following extras: • Storage box and Cover beside the fridge - $280.00 • Microwave cabinet shelf - $300.00 [ 127 ] Given that these two items were recorded as free originally, I will not allow Mr. Yang to now charge a fee these items. xv. Soosweet’s Lost Business on August 28 and 29, 2013 [ 128 ] Mr.

Yang argues that Soosweet’s lost business was not the result of his failure to complete this renovation on time; rather, the business was lost because Soosweet failed to pass the health inspection on August 27, 2013. The flaw in Mr. Yang’s argument is that the reason why Soosweet failed the health inspection was because the candy store was full of dust, and the cabinets and shelves were not all installed. This was all due to Mr.

Yang’s failure to meet his commitment to have Soosweet’s renovation completed by August 25, 2013 in order that Soosweet could have the candy store cleaned up and ready to open on August 28, 2013. [ 129 ] Accordingly, I find that the fact that Soosweet failed to open on August 28, 2013 was directly due to Mr. Yang’s failure to deliver his renovation project on time. The cascading effect of that failure on Mr. Yang’s

part led to Soosweet not passing the health inspection which delayed Soosweet’s opening until August 30, 2013. The result was that Soosweet missed the first two days of the Guilford Mall’s grand opening and all of the associated customer foot traffic that occurred over those two days. [ 130 ] Soosweet has calculated its lost profit over those two days in late August by comparing the store’s average daily profit during the Christmas shopping season. [ 131 ] Soosweet has provided detailed documents to establish what its daily net profit is during the Christmas shopping season.

Soosweet has also provided documentation from the mall’s landlord as to the daily foot traffic in the Guilford Mall on August 28 and 29, 2013. The foot traffic on August 28 was 7,410 people and on August 29 it was 6,162 people. In December, 2013, the average daily foot traffic was 4,040 people.

What is clear from the documents presented by Soosweet is that there was a very high volume of foot traffic in the mall near their store on August 28 and 29, 2013, foot traffic that was substantially greater than the average daily foot traffic in December, 2013. [ 132 ] Soosweet has calculated its lost business opportunity at $6,120.00 for the two days it remained closed during the grand opening on August 28 and 29, 2013. This calculation is based on the net profit at the store over two average days in December, 2013. I believe Ms. Chi is undervaluing Soosweet’s lost business opportunity claim. [ 133 ] Mr.

Yang did not seriously challenge Soosweet’s figures for its lost net profit over those two days. Rather, he argued that he was simply not responsible for that loss. With respect, I disagree with Mr. Yang. His failure to meet his obligations to Soosweet was a direct cause of Soosweet’s failure to open its store on time and led directly to Soosweet missing the opportunity to reap the business rewards of being open for the Guilford Mall’s grand opening. [ 134 ] Accordingly I award Soosweet the sum of $6,120.00 for this head of damages in its Counterclaim against Mr. Yang. xvi.

Labour Charges for Eric [ 135 ] When it was clear to everyone that Mr. Yang was not going to be able to finish this renovation project in time to meet the opening day deadline for the Guilford Mall on August 28, 2013, Soosweet agreed to hire someone named Eric to provide additional labour for Mr. Yang in an effort to complete the job. [ 136 ] Soosweet paid Eric $630.00 and seeks to be reimbursed by Mr. Yang for the labour charges for Eric. [ 137 ] Mr. Yang did not advance any arguments that he should not cover Eric’s labour costs incurred by Soosweet to try and help Mr.

Yang complete this job on time. [ 138 ] Accordingly, I award Soosweet $630.00 for Eric’s labour costs as part of Soosweet’s counterclaim against Mr. Yang. xvii. Soosweet’s Lost Profit from Unfinished Displays [ 139 ] Soosweet advances a claim for lost profit in the store, as a result of some of the display units that were to be supplied by Mr. Yang were not delivered on time. Soosweet argues that the result is that some of the store’s merchandise could not be displayed for several days until Mr.

Yang delivered these display units and therefore the merchandise could not be offered for sale. [ 140 ] I decline to award Soosweet any amount for this claim. While I have no difficulty concluding that the inability of Soosweet to display some of its merchandise deprived Soosweet of a business opportunity and likely some store profit, quantifying this loss is extremely speculative. Clearly the substance of Soosweet’s Counterclaim is the lost business opportunity as a result of opening the candy store two days late and missing the grand opening of the newly renovated and expanded Guilford Mall.

To add as a component of Soosweet’s loss some amount representing lost profit from merchandise that could not be displayed until Mr. Yang delivered the display cabinets late is, in my view, incapable of being quantified on a balance of probabilities. [ 141 ] Accordingly, I decline to award any amount for Soosweet’s claim for lost profit due to the late delivery of the display cabinets.

CONCLUSION [ 142 ] Below I have prepared a

summary setting out the various additions and deletions for the claims advanced by Mr. Yang and Soosweet.

a) Mr.

Yang’s Claims Against Soosweet • Original contract price before taxes $22,800.00 • Main display cabinet +$1,800.00 • Storage room cabinets +$240.00 • Two large display cabinets +$700.00 • Storage room shelves +$900.00 • Video record shelf +$10.00 • 31 inch cabinet shelf +$36.00 • Lock installation +$50.00 • Microwave cabinets top +$25.00 • Laminate top shelving -$1,380.00 • Re-design of cash counter $0.00 • Candy bin shelves re-design $0.00 • Upper/lower cabinet around sink storage room -$800.00 • 1 inch laminate edging -$680.00 • Ice cream glass display -$1,000.00 • Final amount before taxes $22,701.00 • G.S.T. 5% +$1,135.05 • P.S.T. 7% +$1,589.07 • Final amount inclusive of taxes $25,425.12 • Payments made by Soosweet -$19,000.00 • Balance owing from Soosweet to Mr.

Yang $6,425.12

b) Soosweet’s Counterclaim Against Mr. Yang • Lost net profit for August 28/29, 2016 $6,120.00 • Wages for Eric +$630.00 • Amount owing from Mr. Yang to Soosweet $6,750.00 [ 143 ] Accordingly the net amount of money owing between Mr. Yang and Soosweet after setting the above amounts off against each other is $324.88 owing by Mr. Yang to Soosweet. I therefore grant judgment in favour of Soosweet and order that Mr. Yang is to pay Soosweet $324.88 plus interest calculated at the Registrar’s rates from August 28, 2013 until November 7, 2016.

In addition, Soosweet is entitled to recover its filing fee of $206.00 and the reasonable fees paid to Soosweet’s Mandarin interpreter, Ms. Yao, those fees to be determined by the Registrar.

The Honourable Regional Administrative Judge R. Hamilton Provincial Court of British Columbia