Housewise Construction v. Owners of Strata Plan Date:, 2017 BCPC 155

Citation: Housewise Construction v. Owners of Strata Plan Date: 20170306 2017 BCPC 155 File No: S76769 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: HOUSEWISE CONSTRUCTION LTD. dba SEGAL DISPOSAL CLAIMANT AND: OWNERS OF STRATA PLAN LMS 4431 DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE R. HAMILTON Appearing for the Claimant: S. Au Appearing for the Defendant: T. Hare Place of Hearing: Surrey , B.C.

Dates of Hearing: November 13, December 15 and 16, 2015; May 13, August 24, 25, 2016; and January 23, 24, 2017 Date of Judgment: March 6, 2017 INTRODUCTION [ 1 ] Housewise Construction Ltd. dba Segal Disposal (“Housewise”) provides garbage waste and cardboard removal services. During this trial, Housewise was represented by its owner Samuel Au. [ 2 ] The Owners of Strata Plan LMS 4431 (“LMS 4431”) were represented throughout this trial by Mr.

Taroo Hare, a member of the Strata Council for LMS 4431. [ 3 ] Housewise and LMS 4431 entered into a contract for waste and cardboard disposal services to be provided by Housewise for the benefit of LMS 4431 on January 17, 2013.

Housewise started its waste and cardboard disposal services on January 21, 2013 and the term of the agreement between the parties was for five years. [ 4 ] In May, 2014, LMS 4431 purported to terminate this agreement and paid Housewise $3,346.88 in “Final Settlement for 7500 - 120 th Street” in Surrey, British Columbia which is the location of LMS 4431 and the location where Housewise was to perform its waste and cardboard disposal services. [ 5 ] In this action, Housewise alleges that LMS 4431 found cheaper disposal services through a Housewise competitor and that the terms of the agreement between Housewise and LMS 4431 require LMS 4431 to pay Housewise nine months of disposal services if LMS 4431 wants to terminate the agreement.

Housewise claims for additional amounts allegedly owed by LMS 4431 which I will detail below.

The total amount claimed by Housewise against LMS is $15,815.15 plus filing fees, service fees and interest. [ 6 ] LMS 4431 argues that all of Housewise’s claims against it were settled on May 13, 2014 when LMS 4431 wrote the cheque to Housewise for $3,346.88 to settle all of Housewise’s claims against LMS 4431. [ 7 ] LMS 4431 defends this lawsuit saying that Housewise did not fulfil its contractual obligations to remove garbage waste in a timely manner with the result that the waste bin at the LMS 4431 property was regularly overflowing with garbage and was an eyesore. [ 8 ] LMS 4431 counterclaims against Housewise for Housewise’s failure to provide the waste and cardboard disposal services Housewise was paid to deliver, along with other payments LMS 4431 has incurred in this rather protracted dispute. [ 9 ] Lastly, in what can only be described as bull-headed stubbornness, Housewise’s two waste bins that were at LMS 4431’s premises in Surrey have never been returned to Housewise.

Accordingly, Housewise seeks compensation for the value of the two waste bins which currently are on a four acre parcel of land in Langley owned by LMS 4431’s representative, Mr. Hare. BACKGROUND [ 10 ] Housewise provides waste and cardboard removal services throughout Metro Vancouver. [ 11 ] LMS 4431 is a strata corporation, but I was not told whether it is a residential or commercial strata corporation. [ 12 ] On January 17, 2013, LMS 4431 and Housewise entered into a waste disposal agreement whereby Housewise was to supply a six cubic yard waste bin and a four cubic yard cardboard bin on LMS 4431’s premises.

Housewise agreed to empty the waste bin three times per week and the cardboard bin once per week.

LMS 4431 was obliged to pay Housewise $665.00 per month for the waste and cardboard removal services, and LMS 4431 was to pre-pay for Housewise’s services twelve months in advance. [ 13 ] The waste and cardboard removal contract (the “Contract”) was to commence on January 21, 2013 and was for a term of five years. [ 14 ] The Contract contains the following handwritten term: “Customer promise to fix the gate.” This rather imprecise term is even more problematic because at the time the parties signed the Contract, there was no gate to be fixed. [ 15 ] To put this in context, the waste and cardboard disposal bins were located on the LMS 4431 property adjacent to a parking lot.

While I was not told this, I infer that the parking lot was part of the LMS 4431 property. [ 16 ] The bins were situated inside a metal framed structure with no walls and no roof. Had there been walls and a roof, this metal framed structure would look like a very large shed. [ 17 ] Mr. Au testified that he interpreted the term that LMS 4431 was to “fix the gate” to mean that LMS 4431 was to install a gate in front of the metal structure housing the bins in order to prevent people unrelated to LMS 4431 from putting their garbage into the Housewise bins.

The gate would also help prevent homeless people from rummaging through the bins looking for useful items. [ 18 ] These parties encountered difficulties in their business relationship almost immediately. The six cubic yard waste bin was not large enough to accommodate the volume of garbage produced by the owners of LMS 4431.

The result was that the waste bin was regularly overflowing with garbage, and waste was strewn about the ground around the bins. [ 19 ] With no gate to keep homeless people out of the bins, Housewise argues that some of the strewn about garbage was likely due to homeless people rummaging through the bins looking for stuff.

[ 20 ] The garbage bin area developed into a very messy and unsightly part of the LMS 4431 property. [ 21 ] In addition, the six cubic yard waste bin had a limit on the weight of the garbage that LMS 4431 could put into the bin. That limit was fifty kilograms per cubic yard of storage or three hundred kilograms of waste in the six cubic yard waste bin.

If LMS 4431 put more than three hundred kilograms of waste in the bin for disposal by Housewise, then Housewise was entitled, by the terms of the Contract, to charge LMS 4431 overweight charges. [ 22 ] Housewise determined rather quickly that the six cubic yard waste bin for LMS 4431 was too small. That conclusion was based upon the fact that there was garbage strewn about the waste bin regularly, and that the bin was over the weight limit on a fairly regular basis. [ 23 ] As a result, Housewise and LMS 4431 agreed to vary the Contract such that Housewise would supply an eight cubic yard waste bin for LMS 4431.

The variation of the Contract occurred, commencing August 1, 2013. In addition, the parties agreed to settle Housewise’s overweight charges to LMS 4431 for $500.00 at the same time that Housewise supplied the eight cubic yard waste bin. [ 24 ] The Contract amendment was negotiated between Mr. Hare and Housewise’s business manager, Mary Fan.

The Contract Amendment is dated August 22, 2013 and was entered as Exhibit 7 in this trial. [ 25 ] Once Housewise supplied LMS 4431 with the eight cubic yard waste bin there were no further overweight charges for the waste removal at LMS 4431’s premises. [ 26 ] The Contract provided that Housewise was to collect the waste at LMS 4431 three days each week and the cardboard waste one day each week. The original

schedule for Housewise’s waste removal was Monday, Thursday, and Saturday each week. That

schedule was eventually changed to Tuesday, Thursday and Saturday each week. [ 27 ] The reason the

schedule was changed was because, according to Mr. Au, on Mondays, access to the garbage bins was blocked by a car such that he was unable to pick up LMS 4431’s garbage. Housewise tendered evidence from one of its former drivers, Zack Hayer. Mr. Hayer told me that LMS 4431’s waste disposal was part of his regular

schedule in 2013 and he never had difficulty accessing the waste bin. But Mr. Hayer did not work on Mondays so he could not comment on this rather unusual problem encountered by Mr. Au when he went to pick up LMS 4431’s waste on Mondays. [ 28 ] Mr. Au testified that once the waste removal

schedule for LMS 4431 was changed to Tuesday, Thursday, and Saturday, there were no more problems accessing the waste bin at LMS 4431’s property. However, according to Mr. Hare, the problem of the overflowing waste bin at LMS 4431’s property continued. [ 29 ] The inaccessibility of LMS 4431’s waste bin on Mondays is a curious problem. The driver, Mr. Hayer, testified that his access to the waste bin was never blocked on the days he went to collect the waste. [ 30 ] Mr.

Au did not tell me whether the alleged problem he encountered was the result of the same car parked in the same spot, or different cars parked, blocking access to the waste bin. As well, the photographs at tab 3 of the Defendant’s book of documents, do not reveal how a parked car could block Mr. Au’s access to LMS 4431’s waste bin. [ 31 ] Lastly on this point, as part of a document disclosure order, Housewise produced customer weight reports for the months of June and July, 2013. The original reports that Housewise disclosed did not include dates when access to LMS 4431’s waste bin was blocked.

In subsequent disclosure, Housewise produced nearly identical customer weight reports but they were altered to add in dates when access to LMS 4431’s waste bin was blocked. [ 32 ] I reject Mr. Au’s evidence that his access to LMS 4431’s waste bin was blocked by a car or cars on various Mondays in June and July, 2013. The explanation is simply too convenient and not supported by the evidence of Housewise’s regular driver Mr. Hayer who said his access to the waste bin was never blocked by a parked car.

The highly suspicious and altered customer weight reports for June and July, 2013, fortify me in my decision to reject Mr. Au’s evidence about the blocked access to LMS 4431’s waste bins on Mondays. [ 33 ] In the result, I find that in a fairly transparent attempt to make up an excuse for the overflowing garbage around LMS 4431’s waste bin, Mr. Au has said access to the waste bin was blocked by a parked car or cars when in fact that was not the case. I find that this story has been concocted by Mr. Au in order to deflect responsibility for the unkempt area around the waste bin from Housewise to LMS 4431.

I reject Mr. Au’s made up story about a car or cars blocking his access to LMS 4431’s waste bin. THE ALLEGED SETTLEMENT [ 34 ] By April, 2014, LMS 4431 was fed up with Housewise’s poor waste removal service. LMS 4431 wanted to terminate its contract with Housewise. [ 35 ] Housewise was upset with LMS 4431 because the gate had not been installed to limit access to the waste and cardboard disposal bins. The result of ready access to the waste bins by homeless or transient people was that someone had set fire to either the waste bin or cardboard bin causing some damage to the bin.

Housewise sought compensation from LMS 4431 for the fire damage to the bin. It is in the context of these competing complaints back and forth between Housewise and LMS 4431 that the alleged settlement was reached. [ 36 ] Mr. Au on behalf of Housewise says that by May, 2014, LMS 4431 owed Housewise for unpaid disposal services. He also says that LMS 4431 owed Housewise for the fire damage to the disposal bin. [ 37 ] On May 4, 2014, LMS 4431 wrote Housewise a cheque for $3,031.88 and on the subject line of the cheque is written, “Final payment up to April 30, 2014 - service cancelled.” Mr.

Au testified, I think, that this cheque did not include any amount for the fire damage to the disposal bin. I say I think Mr. Au testified to this issue because one of the recurring difficulties I had in this case was

understanding the evidence of Mr. Au and Mr. Hare. I say this with no disrespect intended, but these two gentlemen have very thick accents and so understanding their evidence proved to be a challenging problem. Should anyone order trial transcripts of the evidence in this case, this difficulty will be self-evident. [ 38 ] In any event, when Mr. Hare was advised that LMS 4431’s cheque was insufficient, he put a stop payment on the cheque.

Then, on May 13, 2014, LMS 4431 issued another cheque to Housewise for $3,346.88 and the subject line of that cheque says, “Final Settlement 7500 - 120 th .” So the second “Settlement” cheque is for an amount $300.00 more than the first settlement cheque. [ 39 ] Mr. Au testified that the additional $300.00 was to compensate Housewise for the fire damage to the disposal bin. Originally, Housewise sought $500.00 from LMS 4431 for the fire damage to the bin. Mr. Au says that he ultimately settled on $300.00 from LMS 4431 to resolve the dispute over the fire damage. [ 40 ] According to Mr.

Au, once he received LMS 4431’s cheque on May 13, 2014 the unpaid balance for Housewise’s services to LMS 4431 were settled along with compensation for the fire damaged bin, and he expected to continue providing waste and cardboard disposal services to LMS 4431 in accordance with the Contract. [ 41 ] In June, 2014 when Mr. Au attended at LMS 4431’s premises to dispose of its waste, he found his bins missing so he called the police. The police attended at the LMS 4431 property and Mr. Hare advised that he had settled his account with Housewise and terminated the Contract with Housewise, but Mr.

Au refused to come and retrieve his disposal bins so Mr. Hare had moved the bins to his farm property in Langley. Mr. Hare said that Mr. Au was free to retrieve his disposal bins from the Langley farm property any time Mr. Au wished. [ 42 ] Early in his evidence during this trial, Mr. Au complained that he did not know where his disposal bins were located. That evidence is simply not accurate. In its Reply, LMS 4431 included the address where the bins were, and still are, located. Mr.

Au drove a large truck to the Langley farm property to retrieve his bins, but on his first trip to the property he encountered a dog and he felt it was unsafe for him to load the bins onto his truck. [ 43 ] On a subsequent trip to the farm property for his bins, Mr. Au determined that the bins, now filled with garbage, dirt, and likely rain water, were too heavy for his crane to lift the bins onto his truck. As well the ground was too soft. So, Mr. Au’s bins remain on the Langley farm property for retrieval should Mr.

Au discover a way to load the bins onto his truck and return the bins to Housewise. [ 44 ] So, the issue I must determine is whether these parties reached a settlement and terminated the Contract. Mr. Au says that LMS 4431’s cheque dated May 13, 2014 was to bring LMS 4431’s account up to date and to compensate Housewise for the burned disposal bin. [ 45 ] LMS 4431 says that its cheque dated May 13, 2014 was to settle any claims Housewise had under the Contract and end the disposal service agreement between the parties. [ 46 ] The difficulty I have with Mr.

Au’s position on this issue is that it is inconsistent with the paperwork executed at the time of this alleged settlement. [ 47 ] The first cheque issued by LMS 4431 on May 4, 2014 states clearly that the payment was to bring the Contract to an end. The second cheque issued by LMS 4431 on May 13, 2014 is for $300.00 more than the first cheque and states that it is a final settlement relating to the address of the LMS 4431 property. [ 48 ] Mr. Au says that the extra $300.00 was compensation for the burned disposal bin. I reject Mr. Au’s evidence on this point. [ 49 ] Mr.

Hare says the extra $300.00 was the fee Housewise charged to pick up the two disposal bins in light of the termination of the Contract. [ 50 ] I acknowledge that this is a curious settlement given the extremely favourable terms in the Contract for Housewise when it comes to terminating the Contract. Those favourable terms are located in small print on the back of the Contract. When I say “small print” I mean extraordinarily small print. There is no evidence that the cancellation terms of the Contract were ever brought to LMS 4431’s attention.

I recognize that failure to bring the cancellation terms of the Contract to LMS 4431’s attention would not vitiate the contract. [ 51 ] So, why would Housewise settle this dispute with LMS 4431 for less than half of what Housewise was entitled to under the cancellation terms of the Contract? [ 52 ] The answer to that question is not clear. However, what is clear is that Housewise’s manager, Mary Fan, was involved in settling this dispute. On LMS 4431’s final invoice, #13059, is written the following: “That is Final Settlement for 7500-120 St. Paid $3,346.88. By Chek No. 240.

Both Bins will be Removed upon clearing the chek immediately. May 13, 2014.” Next to that written statement is written the following: “3,346.88 - Received the check Invoice 13059.” [ 53 ] There is nothing written on Invoice 13059 nor on LMS 4431’s cheque #240 upon which I am able to conclude that the settlement was for the balance owed by Housewise, compensation for the burned bin, and that the disposal service would continue. [ 54 ] In his evidence Mr. Hare said that he was fed up with the poor service performed by Housewise and he wanted to end the Contract.

He said he wrote LMS 4431’s first cheque for $3,031.88 but when he learned that the cheque was insufficient for Housewise to come and retrieve the disposal bins, he put a stop payment on the cheque. [ 55 ] He then met with Mary Fan and he added $300.00 to the settlement cheque which was the cost Housewise charged to remove the disposal bins. In fact, on Invoice 13059 there is an entry for an “adjustment” for $300.00 and beside that entry is handwritten “(Removal Bins)”.

[ 56 ] I am of the view that it is significant that with this $300.00 adjustment and the fact that on two places on Invoice 13059 there is reference to removing Housewise’s bins, the only reasonable conclusion is that with LMS 4431 making the payment to Housewise for $3,346.88 the Contract was coming to an end and Housewise was going to remove its disposal bins from the strata property. [ 57 ] Mr. Au argues that Mary Fan did not have the authority to terminate the Contract, but Ms.

Fan clearly had the authority to negotiate and sign the amendment to the Contract executed on August 22, 2013 which increased the waste disposal bin from a six cubic yard bin to an eight cubic yard bin. [ 58 ] Nearly all of Mr. Hare’s dealings with Housewise were through Mary Fan who managed the business. [ 59 ] So while Mr. Au says that Mary Fan did not have authority to negotiate the cancellation of the Contract, that is a matter between Mr. Au and Ms. Fan. Housewise held out Ms. Fan as the company manager and having negotiated the August 22, 2013 Contract amendment with Ms. Fan, I find that Mr.

Hare had every reason to believe that Ms. Fan had the authority to negotiate the cancellation of the Contract. [ 60 ] Mr. Au’s alternative argument that the alleged settlement was not, in fact, a settlement is that Mary Fan does not have a strong command of the English language so she did not understand what was written on Invoice 13059 or on LMS 4431’s cheque #240. I reject this argument. [ 61 ] Housewise left the day to day management of the company to Ms. Fan.

In her evidence, she told me that she answered the phone at Housewise’s business premises and she dealt with enquiries from their many customers. [ 62 ] The August 22, 2013 Contract amendment includes Mary Fan’s handwriting in English. Mary Fan testified before me in English without the assistance of an interpreter. Her English was much easier for me to understand than Mr. Au’s English testimony. [ 63 ] In short, I reject Mr. Au’s efforts to escape the settlement reached between LMS 4431 and Housewise as negotiated by Mr. Hare and Ms. Fan. The paperwork does not confirm Mr.

Au’s evidence and rather clearly confirms Mr. Hare’s evidence that a settlement was reached between these parties. [ 64 ] Accordingly I find that Housewise and LMS 4431 reached a full and final settlement of their disputes with each other on May 13, 2014 when LMS 4431 issued its cheque to Housewise and Housewise accepted that cheque and cashed it. Accordingly I dismiss all of Housewise’s claims against LMS 4431 for any amounts owing from LMS 4431 to Housewise under the terms of the Contract, save and except for Housewise’s claim to be compensated for the value of the two disposal bins located on Mr.

Hare’s farm property in Langley. HOUSEWISE’S CLAIM FOR THE DISPOSAL BINS ON THE LANGLEY FARM [ 65 ] I have set out above what has led to Housewise’s disposal bins being moved to Mr. Hare’s Langley farm property. I have referred to this aspect of the dispute between Housewise and LMS 4431 as one of bull-headed stubbornness. [ 66 ] After Mr.

Hare moved the disposal bins to the property, his tenants on the farm property set one or both of the bins on fire because the garbage in the bins was too smelly. [ 67 ] Photos of the bins taken during the course of this trial reveal that the bins continue to be used for garbage disposal. LMS 4431 paid Housewise to retrieve the bins from the strata property and when that did not happen Mr. Hare moved the bins to the farm property. [ 68 ] Mr.

Au attempted to recover the bins from the farm property but between the tenant’s dog, the weight of the bins now filled with garbage, dirt, and rain water, and the soft ground around the bins, Mr. Au has been unable to retrieve his disposal bins. I accept that Mr. Au attempted to retrieve the bins as evidenced by the rather large crane truck he drove out to the Langley property during this trial to try and pick up the bins. [ 69 ] LMS 4431 has already paid Housewise $300.00 to retrieve the bins but that retrieval was to be from the strata property and not the Langley farm.

It is clear that over the years during which this dispute has dragged on the disposal bins on the Langley farm property have suffered from exposure to the elements, and have been set on fire by the tenants. [ 70 ] I am sympathetic to Mr. Hare and LMS 4431. They paid Housewise $300.00 to pick up the disposal bins and Mr. Au stubbornly refused to do so taking the position that the Contract still existed. When he attended at LMS 4431’s property to find his bins gone, he called the police. Mr.

Au has known for years where his bins are located, yet feigned ignorance at the start of this trial such that I had to broker an arrangement whereby Mr. Au could retrieve Housewise’s bins. Those efforts failed. [ 71 ] Mr. Au filed evidence that the replacement cost of the two eight cubic yard bins would be $1,228.00 per bin. [ 72 ] I have struggled with how to fairly resolve this claim advanced by Housewise. On the one hand, had Housewise fulfilled its commitment to pick up the bins from the strata property that LMS 4431 prepaid Housewise for, this dispute would not exist. On the other hand, Mr.

Hare moved the disposal bins to his private property and they are now located on soft ground, and are very heavy with all the waste loaded into the bins by the tenants on the farm. They have also been set on fire by the tenants and damaged as a result. [ 73 ] As I have already indicated, mid-way through this trial, Mr. Au and Mr. Hare reached an agreement allowing Mr. Au to attend at Mr. Hare’s farm property to retrieve his disposal bins. That agreement broke down when Mr. Au attended at Mr.

Hare’s farm property and tried, but failed, to load his disposal bins onto his flat-bed truck. [ 74 ] I have decided to resolve this issue in the following manner. I am ordering LMS 4431 to return Housewise’s two disposal bins to Housewise’s commercial property located at 12393 Industrial Avenue, Surrey British Columbia within thirty days of the date of this decision. LMS 4431 will return the disposal bins empty of any garbage, dirt, debris, or rain water. I find I have the authority to order the

specific performance of the mid-trial agreement between the parties for the return of the disposal bins to Housewise by virtue of

section 3(

c) of the Small Claims Act , and the authority of Cimaco Travel v. British Airways, PLC 2002 BCPC 226 at paragraph 20 . [ 75 ] I recognize that the original agreement contemplated that Mr. Au would attend at the farm property to retrieve his disposal bins, but I find that it was an implied term of that agreement that LMS 4431, through Mr. Hare, would act in good faith to fulfil the execution of the agreement. I find that Mr.

Hare did not act in good faith as the disposal bins were obviously overloaded with garbage and debris making them far too heavy for Housewise to remove them from the farm property. [ 76 ] I also recognize that LMS 4431 has already paid Housewise three hundred dollars as a delivery charge for Housewise to pick up its bins. But that delivery charge was to cover the cost of picking up the empty bins from the LMS 4431 property, not to pick up overloaded and vandalized bins from Mr.

Hare’s farm property. [ 77 ] Accordingly, LMS 4431 will incur the cost of delivering Housewise’s disposal bins to Housewise’s property within thirty days of the date of this decision. Housewise has the three hundred dollars paid by LMS 4431for the cost of Housewise retrieving its bins.

Housewise can use those funds to repaint the bins to put them back into operation for Housewise’s business. [ 78 ] The parties will reappear before me on April 11, 2017 and if on that date LMS 4431 has not returned the disposal bins to Housewise, I will enter judgment in favour of Housewise against LMS 4431 for the cost to replace the two bins ($2,456.00) less the three hundred dollars LMS 4431 has already paid to Housewise for a total judgment of two thousand one hundred and fifty six dollars with interest and costs to be determined on that date.

LMS 4431’S COUNTERCLAIM [ 79 ] In considering the various claims advanced by LMS 4431 against Housewise in its Counterclaim, it is helpful to keep firmly in mind the fact that LMS 4431 has defended this case on the basis that the parties reached a binding settlement of their disputes on May 13, 2014 when LMS 4431 issued the settlement cheque. [ 80 ] Most of the claims advanced by LMS 4431 involve disputes over the amounts Housewise charged LMS 4431 during the sixteen months of their business relationship. [ 81 ] I am of the view that when LMS 4431 settled with Housewise on May 13, 2014, any claims for overcharges, or credit card charges, or charges for missed or blocked loads were all resolved.

It is not open to LMS 4431, in my view, to argue that Housewise’s claims against LMS 4431 were settled on May 13, 2014, but LMS 4431’s disputes with Housewise’s invoices remain open for resolution in this trial. [ 82 ] LMS 4431 claims that because there is some evidence of blocked loads and thus Housewise’s failure to pick up the number of loads per week the parties bargained for, I should extrapolate those blocked loads over the course of this agreement and refund LMS 4431 for all of those missed loads. But there is no evidence of missed or blocked loads outside of June and July, 2013.

As well, with the change in the

schedule for the removal of waste at the strata property the problem with blocked loads disappeared. [ 83 ] Accordingly, I dismiss LMS 4431’s claim for $4,161.60 being the alleged value of four missed loads for each and every month of the agreement between the parties. [ 84 ] I find that the settlement reached between the parties on May 13, 2014 resolved any dispute about overcharges during the tenure of this Contract. The settlement also resolved any unauthorized credit card charges or Vancouver Landfill charges.

Accordingly I dismiss LMS 4431’s claims for those charges as set out in its Counterclaim. [ 85 ] LMS 4431 includes as part of its Counterclaim the fees LMS 4431 paid to its legal counsel for drafting the Reply and Counterclaim, and attending at the Settlement Conference on April 10, 2015. [ 86 ] Legal fees are not recoverable in Small Claims Court, so I dismiss LMS 4431’s Counterclaim for any fees it paid for legal services relating to this matter. [ 87 ] LMS 4431 counterclaims for $250.00 for the removal of the disposal bins.

It is not clear to me if this claim is for the cost to LMS 4431 to move the bins from the Langley farm property. Regardless, there is no evidence before me establishing that LMS 4431 has incurred this expense or that Housewise is liable to LMS 4431 to repay this amount. Accordingly I dismiss, in its entirety, LMS 4431’s Counterclaim against Housewise. CONCLUSION [ 88 ] For the reasons set out above, I order that within thirty days of the date of this judgment LMS 4431 shall deliver to Housewise the two disposal bins that belong to Housewise and that are currently located on Mr. Hare’s farm property.

LMS 4431 is to deliver the disposal bins to Housewise’s property located at 12393 Industrial Avenue, Surrey British Columbia. The disposal bins shall be empty when returned to Housewise. [ 89 ] The parties shall appear back before me on April 11, 2017 at 9:30am.

If on that date LMS 4431 has not delivered the disposal bins to Housewise, then I will grant judgment in favour of Housewise against LMS 4431 for $2,100.00 plus prejudgment interest and costs. [ 90 ] I dismiss all of the balance of Housewise’s claims against LMS 4431 as set out in Housewise’s Notice of Claim as I have found all of those claims were settled between the parties on May 13, 2014. [ 91 ] I dismiss in its entirety LMS 4431’s Counterclaim against Housewise.

[ 92 ] I cancel the parties scheduled appearance before me on March 15, 2017. Instead, as set out above the parties will now appear before me on April 11, 2017. The Honourable Regional Administrative Judge R.N. Hamilton Provincial Court of British Columbia