2005 BCSC 105 652013 B.C. Ltd. v. V K Delivery&Moving Services Ltd.

Before: The Honourable Madam Justice Morrison

Reasons for Judgment

Counsel for the Plaintiff	Jason D. Lattanzio
Counsel for the Defendant	Daniel G. Addison
Date and Place of Trial:	January 25 and 26, 2005
	Vancouver, B.C.

[1] This is a claim by the plaintiff for compensation for damage to a display sign owned by the plaintiff. On November 20, 2002 the defendant’s truck backed into the signage during delivery, causing damage. There is no issue as to liability.

[2] The plaintiff is a registered company in British Columbia, in the business of manufacturing the many varieties of commercial display signs, including electrical and neon signage. The damaged signage was located in Mission, British Columbia, leased to Rex Cox Men’s Wear.

[3] The defendant, V K Delivery & Moving Services Ltd., is a company incorporated in British Columbia, owner of the truck which backed up, encountering the sign. The accident broke or damaged part of the frames of the signage as well as the interior plastic and vinyl part.

[4] The only witness to give evidence was Donald Armitage, President of the plaintiff company and other related companies. Mr. Armitage has been in the signage business for the last 54 years. He is less involved now in the physical side of the business, and more in the office and administrative side, as well as costing and estimating.

[5] Mr. Armitage testified that 80% of their business is in rentals of their signs. He has been involved in every aspect of the sign business. He impressed me not only with his credibility, but with his total knowledge of his business. Although somewhat self-effacing, he was very clear in giving his evidence, but thoroughly knowledgeable and never prone to exaggeration. I have no trouble accepting his evidence in its entirety.

[6] This particular signage was first placed at the men’s wear shop in the early 1980s, and the leases have been renewed every three to five years since that time. The most recent lease was dated April 4, 2000; it was a renewal for 36 months. It specified the continuation of the signs which were 2 feet high, 56 feet long, and described as “facia band”, and an awning above that. Visually, the sign was a two foot high long display across the top front of the store. It was in four larger sections, with a smaller fifth section undamaged.

[7] Following the accident, an employee of the plaintiff, Todd, drove out to inspect the damage to the signage. He filled out a site check and damage report on November 26, 2002. In giving his evidence, Mr. Armitage corrected some of the information on that report, saying he had had discussions with Todd over the discrepancies.

[8] Initially, ICBC apparently denied the claim and advised that they should go through the property insurance that presumably the proprietors of Rex Cox Men’s Wear had. Mr. Armitage testified this information was passed on to their customer, who reacted with anger.

[9] On January 28, 2003 the plaintiff received a handwritten letter from the proprietor of Ted Cox Men’s Wear which stated,

Further to our telephone conversation this morning, this letter serves as notification that we will terminate our lease for our sign on April 30/03 (April 1st – last payment). Please make arrangements with me for removal of said sign and awning at the end of this agreement.

[10] Mr. Armitage described his customer as a “volatile” person. The plaintiff suggests there is sufficient evidence for a reasonable and probable assumption that the lease was terminated because of the damage to the signage and the conflict with regard to the repair. The defence argues that there is no evidence to substantiate that.

[11] The lease was indeed terminated at the end of April, 2003, and the signage was removed a month or two later, once the store had its arrangements completed for a new sign from a different company. The signage remains on a lot at the business premises of the plaintiff. It has not been repaired.

[12] Mr. Armitage costed out an estimate with regard to the damage. The estimate has three parts. First, the cost of man hours and use of a truck for the employee to go to Mission to check the damage after the accident. That amount totals $705.00, and is not in dispute.

[13] Second, the cost of materials, to both the frame, and the plastic and vinyl that would be inside the frame, for a subtotal of $3,844.67.

[14] Third, under the subheading of labour, there was a subtotal of $12,104.50; and once PST and GST were added, the original total was $19,069.02. However, following the evidence of Mr. Armitage, who indicated that he had built in a figure of 7% for profit, that figure was reduced to eliminate any profit to $17,734.19 as the amount claimed.

Position of the Plaintiff

[15] Before the motor vehicle accident, the plaintiff had this large signage with a longstanding customer. The signage was in good condition and working order. The customer was a demanding one, according to Mr. Armitage. If something went wrong with the signage at any time, and you were not there to fix it right away, Mr. Armitage testified that “you’d hear from Rex Cox”. Mr. Armitage stated that after they tried to deal with ICBC, and were told to get the building insurance to pay, this customer was angry. The customer wanted the signage fixed immediately. The contract was then cancelled by a letter dated January 28, 2003.

[16] The broken signage now sits in the lot of the plaintiff. The aluminium frames are designed specially for the plaintiff, their own design, and Mr. Armitage testified they are heavier than most companies would use, and they therefore last longer. They can be re-used, and there might be a 50 to 60% chance of finding a new customer for this signage. But it would have to be made to look like new and a new plastic face would be required. He said they would have to make new plastic and new vinyl for the signage to be leased to another customer.

[17] Counsel for the plaintiff referred to the following authorities: Air Canada v. Her Majesty the Queen (1989), 28 F.T.R. 148; Canadian Pacific Railway v. Fumagalli et al (1962), 38 D.L.R. (2d) 110; and Miller Dredging Ltd. et al v. Dorothy MacKenzie et al, [1995] 1 W.W.R. 270 (B.C.C.A.).

[18] The Miller Dredging case allowed recovery of overhead costs on pipeline that was damaged during dredging operations.

[19] At paragraph 11 of that decision, the court stated:

In principle the respondents are entitled to recover as damages such sums as will put them in as good a position, so far as money is capable of doing this, as they would have been in but for the effect of the appellants’ negligence: that is, full compensation but no more than full compensation for the financial loss inflicted.

[20] In the Air Canada case, a grader struck a wing of an aircraft owned by the plaintiff. The court allowed administrative and overhead costs involved in the repairs as part of damages awarded. They approved indemnification for full loss sustained.

[21] In the Canadian Pacific Railway decision, a truck skidded into a house owned by the plaintiff company. Damages allowed included the cost of superintending and the handling of materials. The court found the amounts charged by the plaintiff were reasonable and should be allowed.

[22] Counsel for the plaintiff contends that the only way to put the plaintiff back in the position that it was before the accident is to allow its claim in full.

Position of the Defendant

[23] Counsel for the defence contends that if the repairs had been done, the plaintiff would have been in the same position as in the Miller Dredging case. However, the repairs were not done. In any event, the signage was taken down because the lease was terminated by the customer. Further, that there was no clear evidence that the lease was terminated because of the motor vehicle accident. The plaintiff is left with signage that would have been coming down anyway.

[24] The defence concedes that the initial charge for going out to check the sign for safety immediately after the accident, which involved the costs of an employee and a small truck for a total of $705.00 is an appropriate amount to be included in damages. That at most, the only other loss suffered by the plaintiff is the cost of one piece of framing 14½ feet long, at a cost of $116.00, and labour of $356.00, for a total of $1,095.00.

[25] The defence also suggests that taxes would not be applicable in this situation. The defence questions the evidence of Mr. Armitage with regard to the amount of material required as well as the amount of time involved as set out in his costing estimate. But primarily, the defence argues that there should be no compensation whatsoever for any cost with regard to the plastic and vinyl materials and labour. Those amounts are the majority of the plaintiff’s claim.

[26] Alternatively, should the court decide that plastic and vinyl should be included, counsel for the defence argues that a much lower figure, based on 33 feet of framing, rather than 40 feet should be accepted. The figure suggested would be approximately $10,000.00, all inclusive of costs of materials and labour, framing and plastic and vinyl. It would also include the $705.00 which is undisputed.

[27] The defence has cited Corris v. Vanderheide, [1976] B.C.J. No. 183, and MacIntyre v. Ramsay, [1982] B.C.J. No. 798.

[28] In Corris, the plaintiff was involved in two motor vehicle accidents and sought damages for his injuries plus the sum of $199.94 for the repair of his truck. The court pointed out that the truck was never repaired, and this amount was not awarded. The court earlier had mentioned problems with the credibility of the plaintiff.

[29] In the MacIntyre decision, the defendant caused damage to the plaintiff’s car by kicking it. The plaintiff claimed damages for the car but the court found that although he was entitled to his loss of wages, the car was up for sale at the time of the incident, and was sold unrepaired. As there was no evidence as to the effect of the damages on the selling price, the court awarded no damages under the circumstances.

Conclusion

[30] I find the defendant’s position somewhat inconsistent. Initially, and for some time ICBC denied the claim totally. ICBC advised the plaintiff to go through property insurance instead. ICBC had been supplied with a quote of $18,000.00 to repair the signage, but by January 2, 2003, it was apparent they were still denying the claim.

[31] But on the other hand, counsel for the defence states that if the repairs had been done, then the claim for damages now would be valid.

[32] Meanwhile, the plaintiff had a demanding and volatile customer. One that they had managed to get along with with no problems for almost 20 years. On November 20, 2002, their signage was damaged and the customer was left with damaged signage. By January, still broken signage. This for a customer who, according to the evidence, was a customer who wanted things fixed immediately when the normal problems arose with such signs.

[33] On January 28, 2003 the customer signals the end of that long relationship, that the lease agreement would not be renewed.

[34] Based on the evidence from Mr. Armitage on the nature of the customer he had dealt with over the years on these contracts and renewals, it is reasonable and probable to assume that the plaintiff lost this customer because of the signage damaged by the negligence of the defendant. And in order to recover, the plaintiff would need to find a new customer for the signage.

[35] In the words of Miller Dredging, how best to put the plaintiff in as good a position, so far as money is capable of doing, as the plaintiff would have been but for the negligence of the defendant?

[36] The compensation suggested by the defence does not come close to putting the plaintiff back in such a position. Before November 20, 2002, the plaintiff had significant signage in good condition with a longstanding customer. Following the accident, the defence suggests they should have approximately $1,000.00 by way of compensation, or alternatively, $10,000.00, should plastic and vinyl be included.

[37] There is no evidence to suggest that the estimate of Mr. Armitage is anything but reasonable. He has explained the figures given, and brings to the courtroom a lifetime of hands-on experience in the sign business and with his own company.

[38] It is only fair that the plaintiff be put back, as far as possible, in the same financial situation as they were before the accident. To accomplish that, the plaintiff is allowed damages claimed in the amount of $17,734.19. This does include PST and GST which, in my view, are appropriate costs to include.

[39] The plaintiff is entitled to costs, scale three. Counsel have disclosed an offer to settle just prior to trial. I have indicated my discretion not to order double costs under the circumstances.

“N. Morrison, J.”
Madam Justice N. Morrison

Citation:	*652013 B.C. Ltd. v. V K Delivery & Moving Services Ltd.,*
	2005 BCSC 105