IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100726

Docket: S105323

Registry:
New Westminster

Between:

Mercedes Monkman
and 0780466 B.C. Ltd.

Plaintiffs

And

Carolyn Minamata

Defendant

Before:
The Honourable Mr. Justice Crawford

Reasons for Judgment

Introduction

[1]            
This trial reflects the sorry end to a lengthy friendship between two
friends which broke down on February 4 and 5, 2007 over a budding business
relationship.

[2]            
Ms. Monkman’s claims as presented in the April 2007 pleadings sought
damages from the defendant for an alleged assault and consequent emotional
distress, while the numbered company sought $18,000 recompense for an alleged
shareholder loan.

[3]            
At trial Ms. Monkman’s claim was presented for:

1.       Loss
of inventory fixtures and fittings $16,724.58;

2.       Damages
for assault $10,000;

3.       Loss of business opportunity due to breach of contract and
intentional interference in the business of the plaintiff $10,000.

[4]            
An additional claim was made for doctor’s fees for the attendance of a
doctor at trial as a witness. That is an issue of costs and I will deal with
that at the end of these reasons.

Background

[5]            
The parties are now in their mid 30’s. They had been best friends from
high school. During the summer of 2006 they discussed a business opportunity.
They had had difficulty finding the necessary decor and trappings to go with
their weddings, and felt that a wedding decor store, located near the New
Westminster Columbia Street wedding corridor might find a niche market. They developed
their idea through their discussions. They incorporated a company and came up
with a business name, “Positively Posh”. In January 2007 they found an empty
store just off Columbia Street at 42 Begbie Street, New Westminster. They were
allowed entry onto the premises prior to the lease officially beginning in
February 2007. They each put in $1,000 to hold the lease.

[6]            
The defendant who has background in website design developed a website
to advertise their business.

[7]            
Other materials and supplies were bought.  The defendant had no credit so
by default the plaintiff purchased everything on her credit card. Ms. Monkman
used her credit card to purchase paint to refurbish the store, fixtures for
lighting, shelving and wardrobes, and some inventory. They worked hard with
their husbands during the week and weekends through late January to get ready
for a February store opening. The website attracted their first customer and
they agreed to meet the customer at a mid day meeting February 4, 2007. At that
stage the store was not quite ready for opening. While various items had been
purchased and shelving erected, the store was not yet ready for displaying of
inventory.

[8]            
Up to February 4, the friendship between the parties overrode normal
business relationships. Few legal issues were considered. There was no partnership
agreement. Nothing was contemplated other than success of the business, and the
expectation that what they invested would be recouped.

[9]            
On Sunday February 4, 2007, the plaintiff attended at the defendant’s
house. The defendant was working at her sewing machine making labels. In their
discussions the plaintiff sought some assistance from the defendant and was
told to use a calculator by herself which lead to the different versions of
what then happened.

[10]        
The plaintiff says that the defendant lost her temper, pushed her and
then allowed her to leave the premises.

[11]        
The defendant on the other hand says that it was not she, but the
plaintiff, who lost her composure and indicated she could not proceed with this
business if she was being bossed around by the defendant. The defendant says
she was greatly confused by the behaviour of the plaintiff and let her leave.
In any event, they both then went to the store, but the new customer did not
show up. No useful words were exchanged. There were conversations from time to
time over the following days.

The Conversations of February 4 and 5, 2007:

The evidence of the plaintiff

[12]        
Ms. Monkman said she went to the defendant’s house to prepare for the
meeting with the client, but Ms. Minamata was busy preparing dress labels. Ms. Monkman
tried to engage her in preparing for the meeting but Ms. Minamata got very
irritated and an argument ensued and Ms. Monkman went back into the kitchen to get
her books. She says Ms. Minamata “blocked my exit and shoved me back into the
kitchen” and Ms. Monkman asked Ms. Minamata to take her “hands off” and she
stepped away.

[13]        
Ms. Monkman said she then went to the store to meet the client and 10
minutes later the defendant arrived. But the client did not arrive.

[14]        
Ms. Monkman said she was very upset. She said the defendant did not
answer her telephone calls that day until the evening and then Ms. Minamata
cussed her out.

[15]        
On Monday February 5, a fire inspection was to be held at the store.

[16]        
Ms. Monkman said she went to her parent’s house, and then she telephoned
Ms. Minamata. Ms. Minamata said to the plaintiff, “Hank and I have prepared
documents for you to sign off on the company”. Ms. Monkman said that it was her
money and effort and she was not leaving to which Ms. Minamata replied, “Too
bad, so sad”.

[17]        
Ms. Monkman and her mother then drove to the store. As they entered the
back of the store, Ms Monkman could see the defendant’s two dogs running around
in the store and Ms. Minamata was carrying out a box full of inventory. The
plaintiff said a vase fell out and broke on the tiles. The plaintiff said her
mother tried to talk to Ms. Minamata who refused, and got in her car, a Jetta.
Ms. Monkman said the defendant’s car was “packed to the roof with mannequins
hanging out of the trunk”. Later they tried to call Ms. Minamata on her cell
phone. Ms. Monkman contacted her husband and tried to get him to speak with Ms.
Minamata’s husband in the afternoon, but without success.

[18]        
Ms. Monkman then contacted a locksmith and changed the store locks the
same day, February 5, 2007. She said the entire inventory had had been taken
out of the store including the store sign.

[19]        
The next day she attempted to log in on the business website and was
“locked out”. Then the website disappeared. She contacted a mutual friend, a
bailiff, to see if he could resolve matters. But his attempts to settle matters
were also unsuccessful.

[20]        
In cross-examination Ms. Monkman denied she ever “quit the company”. Asked
if she ever said “I quit” she responded “if I did, it means I gave up due to
hostility”. It was put to her that she had left a message on Ms. Minamata’s
cell phone.

[21]        
The plaintiff agreed the original claim was for $18,000 worth of
inventory.

[22]        
Asked how Ms. Minamata could move $18,000 worth of inventory in her
Jetta, she responded, “There was nothing when we got there and your car was
packed to the roof”. It was again put to Ms. Monkman that she had said to Ms.
Minamata the partnership could be dissolved and Ms. Monkman would take over the
company. Ms. Monkman denied that. It was put to her that she had said that she
had nothing in writing to prove she had quit the company. Ms. Monkman replied
“I might have if you told me I quit the company

[23]        
I then ruled on the introduction of a telephone message that had been
recorded by Ms. Minamata from Ms. Monkman on the morning of February 5, 2007.

[24]        
The objection was on the basis that the plaintiff had no notice of the
telephone call and message. I was satisfied that on three occasions  plaintiff’s
counsel had been put on notice: first at the examination for discovery when Ms.
Minamata advised counsel she had recorded the telephone call; second, it was
mentioned at a pre-trial conference; and last, counsel for Ms. Minamata wrote a
letter approximately a week before trial advising of the telephone call
recording. A transcript was entered as Exhibit 3 as being an accurate
transcript of the voice recording Ms. Minimata made of a message left by Ms.
Monkman on the morning of 5 February 2007. It reads:

Um I just wanted to let you know, because I paid for all the
government documents, all the inventory, the printer, ah the Quickbooks, I will
be coming by a little bit later to pick all that stuff up.

Um, I will be coming by the store
to take down um and uh take home anything I have to from the store including
shelving and stuff. So as far as I [am] concerned you have nothing on ah paper
that I quit the company, and I have decided I want to take over the company so
if you want to dissolve your partnership that’s fine. But I’m not walking away
from this because all of my money is in it, and I’m not, and my Mom has stepped
up and she wants to help out with me and that’s fine. So uh yeah, I guess we
have a lot of things to figure out.

[25]        
Ms. Monkman then said she left the message because previously Ms.
Minamata and her husband said that they would go ahead with the company and had
drawn up the paper work for Ms. Monkman to “sign off”. Ms. Monkman said she had
been assaulted, that Ms. Minamata had attacked her, and that had led to her
decision to take over and change the locks.

The evidence of the defendant

[26]        
Ms. Minimata’s version of the discussions on February 4 and 5, 2007 was
this. She agreed they met Sunday in the morning in preparation for meeting the
client. The defendant recalled Ms. Monkman being in the kitchen and wanting a
calculator and she suggested she use her cell phone. She said Ms. Monkman got
quite upset, that she needed her help and Ms. Minamata said she was too busy.
She said Ms. Monkman then started to get very distraught, saying “I can’t work
like this. I feel like you’re the boss. This is not going to work”. Ms.
Minamata said that confused her, that the comment had “come out of nowhere”.
She said Ms. Monkman then left the house and she decided to follow her to the
store. The client did not show, but they did not talk to each other.

[27]        
During the afternoon, she said there was another conversation where Ms.
Monkman was still very upset and said she could not work like this, and then
suddenly started saying “I quit”, Ms. Minamata repeated the statement, and Ms
Monkman then repeated it several times and got off the phone.

[28]        
Ms. Minamata said she then discussed what to do with her husband as
there was still work to be done on the store to get things ready and that she
and her husband decided to take over the business.

[29]        
Ms. Minamata said on the morning of February 5, 2007 Ms. Monkman called
and asked if she was going to the store to meet the fire marshal and Ms.
Minamata said to Ms. Monkman “you quit yesterday” and that she had prepared the
paper for Ms. Monkman to sign off and she was going ahead. She said Ms. Monkman
got very upset, saying she did not want to quit and Ms. Minamata replied, “You
can’t flip and flop with your emotions”.

[30]        
It was shortly after that that the telephone message was left at
approximately 8:45 p.m. on February 5, 2007.

[31]        
Ms. Minamata felt she should get her “stuff” from the store (dog bags,
ladders and various tools). The defendant went to the store and entered with
the dogs, but then saw Ms. Monkman and her mother coming. She did not wish to
have a confrontation and walked out and left. She said she left her belongings
in the store.

Afterwards

[32]        
Ms. Minimata said that she then took a break from the business. Six
weeks later she said she had a miscarriage.  She then decided to run a wedding
rental business from her home. The defendant took the website and altered it
from Positively Posh to Chick Decor and changed aspects of the proposed rental
business. And the new website was up and running by March 11, 2007. It would
appear her business has been carefully and steadily building since. In April
2007 she was served with the Writ issued in these proceedings.

[33]        
Ms. Monkman did take over the Begbie street store. The lease was month
to month so she was in a position to end the lease. She chose to go on. But
though assisted by her mother, other events conspired to prevent her promptly getting
started in the business. She was injured in a motor vehicle accident 30 March
2007.  The website had to be rewritten. Due to a variety of factors, she did
not get any 2007 wedding business, apparently had little or no success in 2008,
and finally closed the business down.

The Plaintiff’s Claims

[34]        
As noted, in final argument the plaintiff’s position was vastly
different from that set out in the pleadings. The claim of the company was not
mentioned. Nor were the pleadings amended.

[35]        
The plaintiff’s argument focused on damages with little consideration on
where liability might lie.

[36]        
I deal with the plaintiff’s claims under the three headings, namely:

1.       Loss
of inventory, equipment, fixtures and fittings;

2.       Damages
for the alleged assault;

3.       Damages for loss of business opportunity due to breach of
contract and intentional interference in the business of the plaintiff.

1.       Loss of Inventory, Equipment, Fixtures and Fittings

[37]        
From the outset of the trial one of the difficulties was the failure of
the plaintiff to particularise the inventory said to have been taken by the
defendant. The plaintiff said she created the list “from the top of her head”
and in fact no particularized list was put forward until requested by the court
at the start of the trial. The list put forward was in the amount of $3,428.46,
substantially different from the original claim of $18,000. Much what might be
considered store preparation and fixtures in the way of shelving and wardrobes
was retained by the plaintiff. There was the further practical question of how
the goods listed for $3,428.46 could be put into the defendant’s Jetta that had
two dogs in it as well as the driver.

[38]        
While the defendant denies that the store decor items had been on site,
the evidence as indicated in Exhibit 3 shows clearly that many of the items
were in the store on February 5, 2007.

[39]        
The defendant did acknowledge that she had taken some plant urns and the
Quickbook software and some dresses, but denied taking the balance of the
items. I accept the plaintiff’s evidence as to the removal of the mannequins.
There is a large item, a printer, said to be valued at $800. Other items may
have been difficult to remove.

[40]        
More difficultly is created by the lack of evidence from any other
observer. Only the parties gave evidence, and I understand Ms. Monkman’s mother
could not testify for health reasons. But no photographs were taken. And if it
was alleged that thousands of dollars of inventory had been taken, there is a
police station but a few blocks away and yet no police report or investigation
was put in evidence. If such large volume of valuable goods were taken
improperly, then civil process could be instituted to have the goods returned.
Yet that was not done.

[41]        
I am satisfied that Ms. Minimata did remove some of the goods listed,
and those had been paid for by Ms. Monkman. I will award Ms. Monkman the sum of
$2,500.

2.       Claim in Tort for the Alleged Assault

[42]        
Again the evidence on this issue is most unsatisfactory. The plaintiff
says in evidence that she was initially confined in the kitchen and then
pushed. Ms. Minamata denies touching the plaintiff. Ms. Minamata is of slight
stature.

[43]        
The evidence of Dr. Engelbrecht was not helpful in the sense that she
did not meet with the plaintiff until February 22, 2007.  The doctor made no
note of any alleged assault, though she asserted she had some recollection of
Ms. Monkman speaking about it. She did note the plaintiffs pre-existing
depression and anxiety was exacerbated. In essence her evidence focussed on
what was for the plaintiff the traumatic breakdown of a long friendship.

[44]        
The claim for damages for the alleged assault cannot be based on what
might at best have been a brief pushing match in the defendant’s kitchen. Nor
can the emotional response of Ms. Monkman be the basis for a claim premised on
the breaking of the inchoate business agreement between the parties because the
breakdown in the partnership occurred upon Ms. Monkman saying she quit. It is
her words that ended the wedding business relationship.

[45]        
Accordingly I make no award for the plaintiffs claim for assault.

3.       Loss of Business Opportunity Due to Breach of Contract and
Intentional Interference in the Business of the Plaintiff

[46]        
It follows from what I have already said that the loss of business
opportunity cannot be blamed on the defendant. But there is no question that
she took parts of the business idea that had been developed between her and the
plaintiff.

[47]        
Sensible heads should have brought the two parties together promptly,
either to see if the dispute could be solved or alternatively that the costs
incurred to date, including the inventory, lease and other assets be shared. Indeed
I accept that Ms. Monkman did try to restore matters but Ms. Minimata would
have none of it. Instead, the defendant did take some of the decor items,
stripped down the website, and soon was in business under her own trade name.

[48]        
It is apparent Ms. Minimata is far more resilient and focused than is
the plaintiff. As well, she had a sympathetic ally in her husband, who
regrettably expressed his personal opinions about Ms. Monkman while in court.

[49]        
The taking of the decor items and the stripping down of the website made
it difficult for Ms. Monkman to get re-started. But Ms. Minamata is not
responsible for the slow return to business by Ms. Monkman which appears to be
in part the effect of the car accident, her own emotional upset, her mother’s
ill health, and her other family responsibilities.

[50]        
On the evidence I find Ms. Minimata deliberately interfered in the
announced intention of the plaintiff to take on the business, by the taking of
some goods, and especially the taking down of the website. It cost Ms. Monkman
$1,000 to reset the website.

[51]        
The effect of the loss of the website cannot be calculated, but it was
doubtless an integral part in the start up of the business and I put that
figure at $5,000 damages.

Doctors fees for attendance in court

[52]        
The defendant had requested Dr. Engelbrecht be called to be
cross-examined on her medical/legal opinion. However during the trial, on the
evening of May 3, 2010, plaintiff’s counsel advised Ms. Minamata that the cost
of the doctor attending would be $2,000 and Ms. Minamata said she could not pay
that fee. Surely that meant that she did not want the doctor to attend court the
next day. However, plaintiff’s counsel called Dr. Engelbrecht, qualified her,
and said that she was only there at the behest of the defendant.

[53]        
Ms. Minamata said that she had told counsel that she could not pay
$2,000 and understood the doctor was not coming to court.

[54]        
Dr. Engelbrecht took the stand and Ms. Minamata did cross-examine her. In
cross-examination the doctor said that Ms. Monkman had not attended several of
her medical attendances in 2007 and the “urgent referral” for her exacerbated
depression and anxiety was not attended to until August of 2007.

[55]        
Aclear stance was taken by Ms. Minamata that she was not in a position
to pay Dr. Engelbrecht and did not want to have her attend court. In my view it
follows that responsibility must fall on the plaintiff and she will be
responsible for Dr. Engelbrecht’s fees for attending court, albeit briefly on
May 5, 2010.

Conclusion

[56]        
In sum, I allow the plaintiff’s claim for loss of inventory and
equipment in the amount of $2,500, and $5,000 for intentional interference with
the plaintiff’s business operation. The defendant filed a counterclaim but that
was not proven, and I dismiss the counterclaim.

Costs

[57]        
As to costs, Rule 57(10) of the Rules of Court states that a
plaintiff who recovers a sum within the jurisdiction of the Provincial Court
under the Small Claims Act is not entitled to costs other than
disbursements, unless the court finds there was sufficient reason for bringing
the proceeding in the Supreme Court and so orders. The jurisdiction of the Provincial
Court is $25,000. In my view this was a case that should have been brought in
Provincial Court and dealt with promptly in that court. There is no award for
costs, save disbursements.

“The
Honourable Mr. Justice Crawford”