[1] FINCH, J.A.: The plaintiff, Sidel Welding Ltd. ("Sidel"), agreed to install a steam boiler and related works at the plant of the defendant, Mansonville Plastics (B.C.) Ltd. ("Mansonville"), between August 1994 and December 1994. The parties eventually disagreed as to the price the defendant was to pay for the completed work. The trial judge found that "... the contract price was never finally agreed between Mansonville and Sidel". Sidel subcontracted a substantial part of the work to GDS Boiler Systems & Services Inc ("GDS Boiler"). The work was completed in January 1995.

[2] Sidel submitted invoices from time to time during the course of the installation for the work done and materials provided totaling in all about $168,000. Invoices up to and including 7 November 1994 totaling $101,272.70 were paid in full. Invoices rendered between 12 December 1994 and 19 January 1995 totaling $64,192.65 were not paid. Included in the amount which Sidel billed to Mansonville was the sum of $36,806.70 which Sidel admits owing to GDS Boiler.

[3] The learned trial judge held that the plaintiff was entitled to be paid in full for the unpaid invoices on the basis of unjust enrichment. He said:

[4] On this appeal Mansonville asserts that the value of the work done by Sidel was not proven. It also says that an inference adverse to the plaintiff's case should be drawn from the failure of one Glynn Olson ("Olson") to testify. Olson was a principal of GDS Boiler, the company with whom Sidel subcontracted as mentioned above. Mansonville contends that the reason for Olson's failure to testify was misrepresented by Sidel and that the court was thereby misled.

[5] With respect to Olson's failure to testify the learned trial judge said:

[6] In my respectful view the learned trial judge did not err in failing to draw an adverse inference to the plaintiff's case from Olson's failure to testify. The defendant conducted an examination for discovery of Olson on 31 January 1997. The defendant had seen all of the invoices from GDS Boiler before the trial. Olson was not a party to the action but he was a principal of GDS Boiler. Mansonville could have called Olson as a witness at trial if it had chosen to do so, and could have cross-examined him or asked him to adopt any parts of his examination for discovery that would have advanced the defendant's case or damaged the plaintiff's case. In these circumstances one cannot say that the learned trial judge erred in the exercise of his discretion by refusing to draw any inference adverse to the plaintiff's case from Olson's failure to testify.

[7] The defendant Mansonville asserted that the reason for Olson's absence from trial was misrepresented by the layman who represented Sidel at trial, and that the trial judge was thereby misled. Counsel for Mansonville made an application to adduce fresh evidence in support of that allegation. We have refused to admit the fresh evidence for the reasons given by the Chief Justice during the course of submissions, namely that the defendant failed to show that due diligence had been exercised, and that the proposed evidence was sufficiently probative.

[8] The real issue in this case is whether there was sufficient proof of the value of the work done to support the trial judge's award of the full amount claimed on the basis of quantum meruit, or unjust enrichment. In this regard the learned trial judge said:

[9] In my respectful view there was a sufficient basis in the evidence from which the learned trial judge could reasonably infer that the defendant was unjustly enriched to the extent of the unpaid invoices. The defendant's officer, Mr. Cormier, acknowledged that the job was only about one half complete as of 7 November, the time at which the defendant stopped paying invoices. The invoices were all detailed with particulars of the work done, by whom it was done and for what number of hours, and in addition gave full particulars of materials supplied. No challenge was made to any of the invoices totaling the first $101,000 prior to the payment of those sums. It was open to the trial judge to infer that those invoices were accurate and were not inflated, and that subsequent invoices were similarly justified. The learned trial judge had to do the best he could on slim evidence, presented by a layman, to award a figure that was fair and reasonable to both parties.

[10] I am not able to say that he erred in the conclusion he reached. I would dismiss the appeal.

[11] MCEACHERN, C.J.B.C. With considerable hesitation I agree with the result reached by Mr. Justice Finch. I would not wish it to be understood that a plaintiff suing for work done need not prove the quantum of his claim or that it is sufficient merely to file invoices presumably without objection, or to have someone without personal knowledge verify the invoices without also calling some evidence that establishes that the work represented by the invoices represents fair value for the other's side to the dispute.

[12] In this case I think that the learned trial judge was able to find in the evidence and in the surrounding circumstances a barely sufficient amount of evidence to infer that the invoices are reliable. I, personally, have no confidence that the amount that was awarded was necessarily the right amount, but I have to agree with Mr. Justice Finch that when there is enough evidence for the trial judge, bare as it was in this case, that we are not allowed to interfere. For those reasons I, too, would dismiss the appeal.

[13] RYAN, J.A. I agree with my colleague, Mr. Justice Finch, and with the sentiments of the Chief Justice that it should not be inferred from this decision that these types of claims can be proved simply through a bare presentation of invoices.

[14] MCEACHERN, C.J.B.C. The appeal is dismissed.