IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           This litigation arises out of a purported contractual arrangement between the parties whereby the Claimant, Jonas Starbuck Laing, who was at all material times a qualified fire suppression instructor recognized by the Ministry of Forests and Range Wildfire Management Branch (the “Wildfire Branch”), delivered two separate, two day training sessions at the behest of the Defendant, MEDIX Holdings Ltd., on May 16 and 17, 2016 and May 21 and 22 of 2016 (collectively the “Training Sessions”).  The course in question developed by the Wildfire Branch and being the subject matter of the Training Sessions and of this action is known as the S-100 Basic Fire Suppression and Safety Course (the “S-100 Course”). 

[2]           By way of the Notice of Claim filed July 8, 2016, Jonas Starbuck Laing (the “Claimant”) seeks recovery in debt from MEDIX Holdings Ltd. for the invoiced cost of presenting the two Training Sessions, his attendant fuel costs, and further seeks damages for the cost of Student Manuals acquired for the Training Sessions and for lost revenue arising from the cancellation of two further training sessions for other parties, as well as for fees and expenses related to his claim.  The amounts claimed total $8,498.50.

[3]           In its Reply with Counterclaim filed July 26, 2016, MEDIX Holdings Ltd. (the “Defendant” and sometimes referred to as “MEDIX”) denies liability for the alleged debt and the damages claimed by the Claimant.  It further denies the purported contractual arrangements and the terms as alleged by the Claimant and in particular denies the existence of a “written contract”, then asserts various breaches by the Claimant in the delivery of the Training Sessions.  The Defendant’s Counterclaim is in the amount of $18,977.87, plus filing fees for damages flowing from the Claimant’s alleged breaches in the delivery of the Training Sessions and for various throw away costs incurred by the Defendant.  The Claimant filed his Reply to a Counterclaim, (which I take to be a denial of factual basis for the Counterclaim) on August 10, 2016 and therefore there is a denial of any resulting liability. 

[4]           It is quite evident that the parties have prepared their respective pleadings in this action without the assistance of legal advice.  Mr. Laing represented himself at the four day trial.  Lyle Jordan, who is the Chief of Operations for MEDIX Holdings Ltd., was the representative for and conducted the trial on behalf of that corporation.  It is also quite evident from the evidence and what occurred during the course of the trial that this matter went far beyond a commercial dispute; shortly after the completion of the Training Sessions it quickly became a very high conflict case and very personal as between Jonas Laing and Lyle Jordan.  Both had to be cautioned by the court on several occasions during the course of the trial to contain their obvious personal animosity towards each other.

[5]           The task of this Court is to determine whether the Claimant, on one hand, and the Defendant, on the other, as a claimant by way of Counterclaim, have each proven their respective claims and in both cases whether the respective damages claimed have been proven both as to causation and to quantum.  Specifically this Court must determine:

[6]           I do not intend to describe the minutiae of all of the evidence presented in this case.  I have rather taken a more compressed and somewhat selective canvassing of the evidence where it is relevant and necessary in making evidentiary findings.  This approach was recently approved by Woods P.C.J. in R. v. Connell, 2017 BCPC 123 (CanLII), 2017 BCPC123, at paragraphs 5 and 6.  This approach has been followed in other recent decisions of our court including some of my own [see for example: R. v. S.W.P., 2017 BCPC 234; Holliston v. 1839928 Ontario Ltd. (c.o.b. Volkswagen Victoria), 2018 BCPC 86, [2018] B.C.J. No.692; and also Infinity Roofing v. Bernhardt, 2018 BCPC 170, [2018] B.C.J. No. 1367].

[7]           However, in drawing necessary inferences and in reaching my conclusions, I wish to assure the parties that I have carefully considered all of the evidence, even if I have not made specific reference to certain aspects of it.

[8]           Based upon the whole of the evidence, there are a number of relevant circumstances that surround and have given rise to the Claim and Counterclaim.  I have summarized below those facts which are undisputed or un-contradicted, except where specifically noted.

[9]           At all material times in this action, the Claimant, being age 46 at the dates of the trial, carried on a sole proprietorship under the business name of “Wildfire Training and Forest Services”.  He is of Indigenous heritage.  His practical and educational background in forestry and related fields dates back to 1997.  He holds certifications as a Geographical Information Systems (G.I.S) Technician, and has taken various courses including his first year courses towards a Forestry Technician Diploma.  He is certified as a Dangerous Tree Assessor.  He has worked for a number of First Nation’s organizations and non-First Nation’s companies in the forestry sector since 1997.

[10]        Starting in 1990 and continuing thereafter to and including the dates of this trial in 2017, the Claimant has received formal training and completed several higher level Wildfire Branch courses and has thereby achieved various levels of knowledge, proficiency and responsibility in wildfire fighting (sometimes referred to as “wildland firefighting”).  Contemporaneously, he has obtained several years of field experience working as a forest fire and wildfire fighter rising to the position of a crew boss and strike team leader.

[11]        As noted at the outset of these reasons, the Claimant was at all material times a qualified fire suppression instructor recognized by the Wildfire Branch to present the S-100 Course and the companion course S10A: Annual Refresher Training (“S10A Course”).  The Claimant obtained that certification on June 29, 2010 and was able to teach through his then sponsor and employer Osprey Silviculture Operations Ltd. (“Osprey”).  On November 9, 2010, the Wildfire Branch confirmed his qualifications to deliver those two courses on his own and not simply under the auspices of Osprey.  The Claimant has taught these courses on some 10 to 11 occasions to some 100 students, both on an “in house” basis for various forestry companies and on his own.  Prior to complaints being made to the Wildfire Branch by the Defendant (and specifically by Lyle Jordan) he had not been made aware of any complaints about his proficiency in teaching these courses.  Even after the complaints were made by the Defendant and following the Claimant’s response to those complaints, he has not been made aware of any continuing concerns on the part of the Wildfire Branch about his proficiency in teaching these courses.

[12]        According to the Claimant’s evidence, he was advertising online about his availability in the early spring of 2016 to present the S-100 Course.  He testified that he usually charged each student the amount of between $200 and $250.  If there were going to be less than 10 people participating in the course session, the charge was $250 each.  He advertised the availability of “block courses” and “block rates”, which I understand to offer reduced rates per student for guaranteed group numbers of students, which rate he said was usually charged at $180 per student.

[13]        According to the S-100 Instructor Manual, a copy of which was admitted into evidence, the “Course Learning Objective” of the S-100 Course is as follows:

[14]        The S-100 Course apparently is the introductory course to a series of other courses known as the BC Fire Suppression Training series developed by the Wildfire Branch.

[15]        The Claimant had in his possession electronic copies of the Student Manual and the Instructor Manual for the S-100 Course, together with the electronic copies of that course’s power point or slide presentation, as well as other higher-level courses developed by the Wildfire Branch.  The Wildfire Branch has developed for purchase a Student Manual.  Also available from the Wildfire Branch are “Red Cards” to be completed by Instructors and delivered to the students who have successfully completed the course.  The Red Cards confirm and certify a student’s successful completion of the S-100 Course and further confirm the duration of the certification, which in the case of the S-100 Course is for a period of one year.  Thereafter that student must take and pass the refresher S10A Course on an annual basis to maintain their certification.

[16]        The Instructor Manual contains an outline of 15 section headings for the topics and matters that are to be covered in each course over the two days, complete with learning objectives for each section; specific matters to be covered under each heading; a suggested time table or time allocation; tips on matters of significant importance that require emphasis; and specific references to an accompanying power point presentation with its various slides.  The Instructor Manual also contains a listing of Instructor Equipment and Supplies for Classroom Equipment on day one, broken down into “Minimum Equipment” and “Suggested Equipment.”  Day two sets out “Field Equipment” with a designation of certain “required items”.  The Instructor Manual also contains a copy of a 30 minute exam with 16 questions, including multiple choice questions and a section containing 23 true and false answer questions.  It is marked out of 100 with a passing score of 70%.  It is apparently scheduled to be administered after day one.  The Instructor Manual contains an Exam Answer Key for use by the instructor in marking the exam. 

[17]        The documentary evidence presented by the Defendant contains a copy of the face pages of a number of the completed examinations that were administered during the First Session.  They appear to be identical to the version in the Instructor’s Manual but there is an indication that the time limit is 45 minutes.  The schedule for day two deals with Field Exercises and practical field tests including a reference to a “LCES Practical Test”.  The acronym LCES stands for “Lookout, Communication, Escape, Safety”.  There are also three field exercises listed that involve aspects of the use and operation of a fire pump and a fourth that focuses on hand tools and fire line construction.  The total time for the two days of the S-100 Course is scheduled for 16 hours, inclusive of breaks.

[18]        The Defendant is a family owned company.  Lyle Jordan’s parents Stanley Jordan and Karen Jordan are the only shareholders of the company, and, along with Lyle Jordan, comprise the three directors.  The corporate Defendant has its registered and records office at Stanley and Karen Jordan’s Ladysmith, BC residence.  That residence is also the “Delivery Address” disclosed under the BC Company Summary prepared and made available to the public under the BC Business Corporations Act by the Registrar of Companies and which is based upon annual filings made by or on behalf of the Defendant with the Registrar.  Stanley Jordan has stepped down as the chief executive officer of the corporate Defendant.  Lyle Jordan’s brother, Edward Jordan and Lyle Jordan are responsible for various aspects of the operation of the Defendant.  Besides holding the title of “Chief of Operations”, Lyle Jordan described himself as the “Head of Education and Training”.  He holds a Level III occupational first-aid ticket and previously held a Red Cross first aid instructor’s ticket.  He previously taught first aid courses for the Worker’s Compensation Board of British Columbia.

[19]        The core business of the Defendant is patient transfers between various medical facilities and also providing first aid services.  It operates throughout Vancouver Island and on the mainland of BC.  The business has expanded into providing industrial first aid and first aid at special events, and providing first aid services at construction sites.  It also provides certified construction service officers to advise contractors regarding safety rules and WCB rules, it sells first aid and safety supplies and presents first aid training and other safety based courses.  This was its first foray into providing the S-100 Course.

[20]        During the peak periods of its business, which I take it to be in the spring and summer months, the Defendant has 35 employees.  That reduces to between five and ten employees during the winter months.  As I understand it most of those employees hold an occupational first aid level three ticket and many hold the designation as a primary care paramedic.

[21]        In April 2016, the Defendant was awarded a contract to provide first aid services to the Wildfire Branch.  It held a similar contract in 2015.  A new condition of that contract for the 2016 fire season was that the employees of the Defendant who were fulfilling those first aid services were required to have completed the S-100 Course prior to June 2016 in order that they were able to be near the wildfire fighting lines.  Lyle Jordan was responsible for obtaining that employee training and accordingly contacted the Claimant after having viewed his online advertisements.

[22]        It is common ground that Lyle Jordan initiated contact with the Claimant in or around the first week of May 2016 to discuss the presentation of the S-100 Course.  The communication between the Claimant and Lyle Jordan was apparently initially by way of telephone discussions.  It then continued with email exchanges, which based upon the submitted documentary evidence, started in or around May 6, 2016. 

[23]        What was said by the Claimant and Lyle Jordan regarding the negotiations and what was agreed to or not agreed to is highly contentious and is the subject of conflicting evidence by the Claimant and by Lyle Jordan.  It is summarized below.

[24]        What is common ground is that the Defendant wanted the Claimant to provide two separate Training Sessions, first , on the weekend of May 16 and 17 of 2016 (the “First Session”), and thereafter the weekend of May 21 and 22, 2016 (the “Second Session”).  It is also common ground that during the negotiations, Lyle Jordan sought a lower price per student than was initially being proposed by the Claimant, at the Claimant’s “block rate” of $180 per student.  The Claimant then offered to lower the block rate to $150 per student.  The Claimant and Lyle Jordan both confirm that ultimately a charge of $130 per student was agreed to in their telephone discussions.

[25]        The parties disagree on most of everything else that was settled during the negotiations, other than the dates for the Training Sessions, the agreed charge of $130 per student, and the Defendant’s responsibility to obtain the facility to be used for the Training Sessions.

[26]        The Claimant sent an email on May 6, 2016 to the Defendant via Lyle Jordan with a number of attachments, including a cover letter and a document entitled “S-100 Series Forest Fire Suppression Training” addressed to the Defendant.  It is identified as “Quote #141”.  Various copies of that document presented in the evidence have different dates including one produced by the Claimant as part of his documentary evidence.  It has a date of May 9, 2017, being a year after the Training Sessions.  According to the Claimant the different and ultimately the wrong dates appear as a result of his accounting or word processing program inserting an incorrect updated date when he re-ran the document off of his computer for various purposes including for litigation disclosure purposes. 

[27]        This Quote #141 document (hereinafter the “Quote Document”) goes on to provide the further additional information:

[28]        The following additional information then appears in the Quote Document:

[29]        In the attached cover letter dated May 6, 2016 directed to the Defendant, the Claimant states as follows:

[30]        On May 6, 2016, the Claimant had also contacted the Wildfire Branch to place an order for 40 of the Student Manuals for the S-100 Course.  Thereafter he engaged in a further email exchanges with the Wildfire Branch as a follow up to his order which was delayed in being filled and shipped.  The Wildfire Branch finally shipped the 40 ordered printed Student Manuals and Red Cards via Greyhound sometime in early June of 2016, but following the presentation of the Training Sessions.  When the delay of receipt of the Student Manuals became apparent to the Claimant, prior to the First Session he produced from the electronic versions in his possession 36 USB computer memory sticks upon which he had downloaded the S-100 Course Wildfire Branch course slide presentation, the Student Manual, the Instructor Manual and other Wildfire Branch advance courses.  I accept this to be the case based on the whole of the evidence and notwithstanding the evidence of Jordan Lyle to the effect that only the slide presentation was on the USB sticks.  On May 13, 2016, the Claimant also corresponded by way of email with the Forest Fire Protection Branch and provided supporting correspondence with a request to have his name added to the BC Wildfire Service’s “qualified instructors page”.  I understand that this was a request to have his name added to the appropriate web page because his name was not shown.

[31]        It appears that there was no response from the Defendant or anybody on its behalf to the proposal set out in the Quote Document and the accompanying correspondence and documentation sent on May 6, 2016.  Accordingly there was no expressed acceptance or rejection of the proposal contained in the Quote Document.  Also there was no written communication seeking any clarification of the Quote Document by the Defendant.  No payment of the Deposit or any portion of it was received by the Claimant. 

[32]        On May 10, 2016, the Claimant emailed to the Defendant indicating that he was “following up on interest in training course.”  Notwithstanding the Claimant’s evidence that this email was intended to reference a purportedly discussed possible further course for the Defendant, in Vancouver, at some time after the Second Session and not to the Training Sessions and specifically the First Session, on May 12, 2016, Lyle Jordan responded by email in part as follows:

[33]        In a brief follow-up email exchange on May 12, 2016 at 3:34 p.m. the Claimant provided the requested confirmation and then at 3:44 p.m., by return email Lyle Jordan confirmed the start time as 10 a.m. and the location as the Langford Legion and provided the address.  Mr. Jordan goes on to say:

[34]        Further emails exchanges occurred that evening about arranging for the Claimant to have the opportunity to see the Langford Legion in advance of the First Session.

[35]        On May 15, 2016 at 10:46 p.m., the Lyle Jordan on behalf of the Defendant emailed to the Claimant, in part as follows:

[36]        The Claimant was driven to the Langford Legion by his mother, Jillian Harris.  He apparently arrived around 9 a.m. and before Lyle Jordan who arrived sometime after 9:30 a.m.  Prior to the commencement of the course, the Claimant provided Lyle Jordan with a copy of a letter from the Wildfire Branch on the letterhead of the Coastal Fire Centre of the British Columbia Forest Service, dated November 9, 2010 confirming their recognition of the Claimant as a qualified fire suppression instructor and therefore able to deliver the S-100 Course and the S10A Course.

[37]        The Defendant had arranged a “contra” of services for the use of the facility at the Langford Legion in a room that could accommodate over 30 people.  When Lyle Jordan showed up he collected money from the attendees.  Only nine people, including Lyle Jordan, attended the two scheduled days for the First Session.  Three employees of the Defendant were apparently unable to attend at the last moment due to employment commitments for the Defendant.

[38]        The documentary evidence supports that the Defendant had been publicizing the First and the Second Sessions on its Facebook page as early as May 12, 2016.  A description of the S-100 Course was provided as well as the dates and location.  It noted that MEDIX was opening the courses to the public and volunteer organizations.  It further stated that course cost was “$180 and it covers location, equipment and text material”.  It further indicated that there were 32 seats available for the First Session and 20 seats available for the Second Session.  The Claimant says that he only became aware of this online advertisement on day one of the First Session when one of the student attendees showed it to him.  In his testimony, Lyle Jordan suggests that the Claimant was made aware of this Facebook advertising by the Defendant.  Based on the whole of the evidence I accept the Claimant’s contrary version.

[39]        There is conflicting evidence on the part of the Claimant and Lyle Jordan about what was and what was not covered during the two scheduled days of the First Session, about the quality of the course delivered by the Claimant and issues about time spent on certain matters during the course.  Nonetheless, it is common ground that the Claimant did conduct the First Session over the two days.  The Claimant administered the prescribed written examination for the S-100 Course to the nine attendees.  All passed.  The scores ranged from a low of 82% to a high of 99%.  Lyle Jordan received the lowest score.  Emma Richards, who was called by the Defence as a witness, obtained the highest score. 

[40]        Due to the Wildfire BC Red Cards not arriving in time for the First Session, the Claimant issued a printed card bearing his proprietorship name and logo and signed by him as a qualified instructor, thereby certifying that the named individual had successfully completed the S-100 Course (the “Claimant’s Course Certification Card”).  As I understand it, on one portion of the Claimant’s Certification Card, being on the reverse side, the Claimant was required to insert the one year expiry date for the certification of the individual who had completed the S-100 Course presented by the Claimant.

[41]        Sometime in and around May 12, 2016, the Claimant issued an invoice number 218 dated May 12, 2016 to the Defendant for the First Session.  It referenced a billing for: “BCFS S-100 Forest Fire Suppression and Safety Training Course, 12 units@$130.00 per”  The total was extended to be $1,560.00.  A line for GST was included showing the amount owing of $101.40.  The grand total was therefore $1661.40.  In the body of the invoice was a note that stated: “Medix Holdings Ltd.  12ppl confirmed May 15, 2016 10:46 p.m.”  This invoice is hereinafter referred to as “Invoice 218”.  The Defendant acknowledges having received Invoice 218 in or around May 12, 2016.  No amount has been paid by the Defendant on Invoice 218.

[42]        On May 17, 2016 the Defendant posted a series of photographs of the First Session on its Facebook page.  It contained in part the following message: “congrats to all the students of our first ever S 100 course”.  It also acknowledged a “huge thanks” to the Langford Branch of the Royal Canadian Legion, as well as Richlock Rentals Ltd., who had made available a fire pump at no direct cost for the First Session. 

[43]        Prior to the commencement of the Second Session on May 21, 2016, the Claimant and Lyle Jordan exchanged further emails and in particular between May 19 and 21, 2016. 

[44]        The Claimant emailed Lyle Jordan on May 12, 2016 at 7:13 a.m. asking him as follows:

[45]        There is nothing by way of any email or written communication at that point indicating any dissatisfaction on the part of the Defendant about the Claimant’s delivery of the First Session.  Similarly there appears to be nothing that would suggest that the Defendant had raised these types of concerns directly with the Claimant or had raised any concerns about the amount of Invoice 218.

[46]        The Second Session proceeded as scheduled.  Lyle Jordan attended to collect money.  Only two students showed up to register and to attend.  One of them was Mel Rogers of Alpine First Aid Ltd., whom I understand to be a competitor of the Defendant.  The Second Session was taught by the Claimant over the weekend.  Lyle Jordan did not remain in attendance.  I understand that both attendees completed the S-100 Course successfully and received the Claimant’s Course Certification Card.  Upon receipt of the previously ordered printed copies of the Student Manuals, the Claimant forwarded a copy to each attendee along with their Red Cards.  The Claimant further testified that thereafter he taught other employees of Alpine First Aid Ltd. the S-100 Course in order that they could meet the Wildfire Branch requirements for first aid attendants and drivers for the 2016 fire season.

[47]        Sometime and presumably just before or after day two of the Second Session, the Claimant issued invoice number 222 dated May 21, 2016 to the Defendant for the delivery of the Second Session.  It referenced a billing for: “BCFS S-100 Forest Fire Suppression and Safety Training Course, 9 units@$180.00 per”.  The total was extended to be $1,620.  A line for GST was included showing the amount of $105.30.  The grand total was $1,720.30.  In the body of the invoice was a note that stated: “Adjusted: min 10 clients per course.  Please see condition on block training provided May 6, 2017.”  This invoice is hereinafter referred to as “Invoice 222”.  No amount has been paid by the Defendant on Invoice 222.

[48]        On May 21, 2016 the Claimant sent Lyle Jordan an email at 6:05 p.m. in which he says as follows:

[49]        There is no documentary evidence that shows that any email responses were forthcoming from the Defendant.  It appears likely that there were telephone calls or at least attempted telephone calls by the Claimant to Lyle Jordan seeking to obtain payment on the two outstanding invoices. 

[50]        The Claimant issued another invoice numbered 226 dated May 22, 2016 to the Defendant for the Second Session.  It referenced a billing for: “BCFS S-100 Forest Fire Suppression and Safety Training Course, 2 units@$180.00 per”.  The total was extended to be $360.  A line for GST was included showing the amount of $23.40.  The grand total was shown incorrectly as $380.40.  In the body of the invoice was a note that stated: “Please see condition on block training provided May 6, 2017.”  This invoice is hereinafter referred to as “Invoice 226”.  No amount has been paid by the Defendant on Invoice 226.

[51]        Then on May 23, 2016 the Claimant sent the Defendant an email with the message subject line of “overdue account(s) invoice #222- #226” and appears to have attached copies of Invoice 222 and Invoice 226 to that email.  A further series of emails were sent by the Claimant on May 26, 2016 and May 31, 2016 to the Defendant, again directed to Lyle Jordan seeking payment.

[52]        Once more there appears to have been no response from the Defendant or from Jordan Lyle to any of these communications.

[53]        On June 3, 2016, the Claimant conducted a corporate search of the corporate Defendant and learned of the Registered and Records Office information together with the Ladysmith Delivery Address for the corporate Defendant as well as the addresses for three directors, namely Stanley Jordan, Lyle Jordan and Karen Jordan.  On June 4, 2016, the Claimant and his mother Jillian Harris attended at that address.  Ms. Harris was present during discussions between the Claimant and the gentleman who identified himself as Stan Jordan, Chairman of the Board of the Defendant.  The un-contradicted evidence of Ms. Harris is to the effect that the Claimant presented unpaid invoices to Stan Jordan and was seeking payment of them, to which Stan Jordan said that the cheques were with the bookkeeper Alice in Victoria and that they should be in the mail.  On June 10, 2016 the Claimant and Ms. Harris returned to the same Ladysmith address and once again were informed by Stan Jordan that the cheques were still at the office in Victoria.  She and the Claimant then drove to Victoria but were unable to locate the Defendant’s office.

[54]        On June 14, 2016 the Claimant sent a further email to the Defendant, this time directed to Stan Jordan, referencing their conversation the previous week and indicating that payment of the outstanding invoices had not been received and then threatened a Small Claims action.  No response was received.  Accordingly the Notice of Claim was filed on July 6, 2016.

[55]        It is uncertain at that point whether the Claimant had or had not been made aware by either the Defendant or by any other party that the Defendant had issues with the quality or the content of the Claimant’s presentation of the S-100 Course.  Again, so far as I can determine, there was no indication that the Defendant intended to withhold payment because of those concerns but there may have been discussions about the qualifications of the Claimant to deliver the S-100 Course that had been raised by Lyle Jordan with the Claimant.

[56]        The Accused did become aware from discussions with representatives of the Ministry of Forests in June or July of 2016 that the Defendant had lodged a complaint with that Ministry about his qualifications to teach the S-100 Course and about the quality of the courses provided by him to the Defendant and its employees at the First Session. 

[57]        An investigation was undertaken by the Wildfire Branch which seemingly took about a year to conclude.  The un-contradicted evidence is that the Claimant had numerous discussions with at least four different Wildfire Branch officials in order to confirm his existing certification as an “endorsed S-100 instructor” and about the complaint made regarding the quality of the course that he had delivered to the Defendant’s employees at the First Session.  By way of correspondence received from the Wildfire Service on or about July 6, 2017 directed to the Claimant, the complaint investigation appears to have been concluded (but possibly subject to a Wildfire Branch official attending a future course presented by the Claimant) with what can be characterized as a “letter of expectations” (the “Wildfire Branch Letter of Expectations”) which in part confirmed to the Claimant the necessity to:

[58]        The un-contradicted evidence of the Claimant was that his teaching status as a S-100 Course instructor was not revoked at any time, nor did he receive any penalty or sanctions nor was he required to attend any remedial programming.  It is also un-contradicted that no persons who attended the Training Sessions had their certification cancelled or were not recognized by the Wildfire Branch as holding their certification.  However it appears that other than teaching some of the S-10 A refresher courses and individual courses, the Claimant made a decision on his own not to teach the S-100 Course pending the completion of the Ministry inquiry. 

[59]        The Claimant was contacted after the First Session around August 15, 2016 by one of the students in that session regarding a lack of an expiry date appearing on the Claimant’s Course Certification Card provided to that student.  The lack of the expiry date that had apparently raised a concern within the Wildfire Branch as to the validity of the Claimant’s Course Certification Card.  The Claimant spoke to an official at the Wildfire Branch and the matter was sorted out and the Claimant’s Course Certification Card was accepted as valid.  The Claimant sent out an email to the Defendant and to the attendees at the First Session explaining the situation. 

[60]        As noted above, the Student Manuals and the Red Cards were received by the Claimant in June of 2016.  The Claimant completed the Red Cards for each of the students in the First Session and clipped them to an individual printed copy of the Student Manual for each student at the First Session.  At the beginning of August of 2016 he attempted to make contact with the Defendant or its representatives regarding delivery of these items and was unable to do so.  He then attended at the Ladysmith residence of Stanley Jordan, being the Address for Delivery of the corporate Defendant.  No one would answer the door.  As I understand it the items were left outside the residence at the Address for Delivery and subsequently returned to the Claimant.  His attendance on that occasion resulted in a report being made to the RCMP.  The Claimant subsequently was contacted by various students from the First Session and he provided those items directly to them.  As previously noted the two students at the Second Session received both their Student Manuals and their Red Cards directly from the Claimant.

[61]        The Claimant says that in the course of his negotiations with Lyle Jordan, there was a significant amount of haggling back and forth as to the price per student for the S-100 Course on the basis of there being 45 attendees which would then enable the Claimant to provide the Defendant with the “block rate”. 

[62]        The Claimant stated that he was only permitted to instruct 32 students at a time.  The Claimant says that Lyle Jordan stated that he wanted 45 spots and the Claimant understood that the attendees would all be the Defendant’s employees and that 30 students would be attending the First Session and 15 would be attending the Second Session.

[63]        The Claimant also testified that the block rate price of $130 per student was based on the Defendant being responsible for providing the instructional room, coffee and the various pieces of equipment, including the projector for the in class slide presentation as well as a fire pump, the bladder required to use the fire pump, a tent cover and an outside area to dig.  The Claimant stated that he had sent the Defendant a list of required equipment in the first email sent to the Defendant.  I could not find that list in any of the documentation put into evidence.

[64]        The Claimant says that he understood that the proposal set out in the Quote Document had to be taken by Lyle Jordan to the Defendant’s Board of Directors for approval.  He further testified that he believed that the Quote Document set out the agreed arrangements between the Claimant and the Defendant for the Training Sessions and he “took it as a contract” that there were going be 45 people in attendance.  He further testified that there were no discussions about what would occur if there were less than 45 attendees. 

[65]        The Claimant testified that immediately prior to the commencement of the First Session, that Lyle Jordan told him that there were fewer people than had been anticipated because the three absent employees had to attend at a car accident.  The Claimant said that he was not concerned by the lack of numbers because of his arrangement with the Defendant which was a flat rate of $130 multiplied by 45 students, no matter how many people actually showed up at the Training Sessions.

[66]        The Claimant denied that the arrangement between himself and the Defendant was that the Defendant sought the Claimant to present a course for “up to 45 people”. 

[67]        The Claimant testified that although he had not received the deposit amount as set out in the Quote Document before the commencement of the First Session, he proceeded with the First Session because he took Lyle Jordan “at his word” that he would be paid.  Also, he was not worried about receiving payment because on the afternoon of day two of the First Session, Lyle Jordan approached him and stated that the cheque for the full payment for the First Session (not just the deposit) was in the mail to him.  That allayed his concerns for about four days at which point the Defendant’s cheque had not arrived. 

[68]        His concerns about receiving payment continued when the time had come to start the Second Session.  But the concerns were again somewhat allayed when Lyle Jordan told the Claimant immediately before the start of class on day one of the Second Session that the Claimant could go to the Defendant’s Victoria office to pick up the cheque, notwithstanding, as noted by the Claimant, that Jordan Lyle had previously told the Claimant that the cheque for monies owed to the Claimant was in the mail.  Immediately prior to the start of the Second Session no explanation was offered by Lyle Jordan for the small number of attendees.  Also, there was no discussion about any concerns the Defendant had with the Claimant’s presentation at the First Session.

[69]        As I understand it, the Claimant’s explanation is that he issued Invoice 226 in a significantly reduced amount for providing the Second Session in a somewhat desperate attempt to get paid by the Defendant and because he was on the eve of departing for firefighting work for the 2016 season. 

[70]        The Claimant stated that he followed the general outline of the Instructor Manual and covered off the items set out in the Instructors Manual.  Although the students did not have the hard copies of the Student Manuals, as I understand his evidence he put the necessary information from the digital manual on the screen as well as the Wildfire Branch slide show.

[71]        He conceded that he did not necessarily cover the required topics in the same order as in the Instructor Manual and that some of the items anticipated to be covered on day two were interwoven into his presentation on day one.  He specifically mentioned the LCES topics and the LCES field test.  Because there were less than 32 attendees, which would often be present at his S-100 Course presentations, he was able to move through the course outline items more quickly. 

[72]        The Claimant stated that he covered all of the required material over the two days of the First Session.  In cross examination he detailed what was covered or may have not been covered on day two being:

[73]        He provided further evidence about the Second Session for the two individuals who attended.  He stated that the field exercises were conducted at nearby Goldstream Provincial Park and that he provided a pump that day.

[74]        In his cross examination by Lyle Jordan he denied the suggestion put to him by Mr. Jordan that providing the students with the USB sticks which contained additional high level courses was a “danger” to the students who attended the presented S-100 Course, and in doing so the Claimant noted that the students were only taking the basic S-100 Course and if they were intending to be actually fighting fires then they would be required to complete their certification under the S-185 Course entitled “Fire Entrapment Avoidance”. 

[75]        The Claimant testified that as a result of the year-long investigation precipitated by the Defendant’s complaints to the Wildfire Branch and as a result of his choice not to continue to teach the S-100 Course pending the decision of the Wildfire Branch that he was required to turn down the opportunity of teaching 119 individuals. 

[76]        He further clarified that his actual anticipated loss would be from teaching only 50 individuals because for tax purposes he generally keeps his instruction revenue under $10,000 per year, all of which he declares for income tax purposes.  He further said that if he is teaching the S-100 Course as part of an “in house program” for his employer his rate is $600 per day. 

[77]        As I understand the Claimant’s testimony he is neither a registrant nor is he registered with Canada Revenue Agency in connection with charging or collecting GST, because he does not earn enough revenue through his proprietorship to meet the threshold.  Accordingly, he cannot charge GST to the Defendant on the invoices.

[78]        Based upon his various discussions and interactions with officials of the Wildfire Branch, the Claimant formed the understanding that the Wildfire Branch recognized the S-100 Course that he had taught for the Defendant’s employees at the First Session and further that the certificates that he had issued were subsequently used by the Defendant’s employees for their recertification after the usual one year expiry period.  He stated that he further understood that the Defendant’s employees had been “pre-approved” for the 2016 fire season to work out of Williams Lake upon completion of the S-100 Course that he taught.  No witnesses were called by the Claimant to confirm this information to be correct.

[79]        He testified that Mel Rogers, who attended the Second Session, used his certification for Wildfire Branch work and the Claimant also understood such to be the case with the other attendee at the Second Session.

[80]        Lyle Jordan testified that the Defendant was working under significant time constraints in order to locate a Wildfire Branch endorsed instructor to have the Defendant’s employees complete the S-100 Course for their 2016 contracts with the Wildfire Branch. 

[81]        He confirmed that he, on behalf of the Defendant, and the Claimant engaged in telephone discussions and bargained about the price of presenting the S-100 Course.  He stated that the Claimant agreed to a reduced price if the Defendant would provide the instruction room, the projector and screen and the tables and chairs at the Langford Legion. 

[82]        Lyle Jordan stated that he told the Claimant during the telephone discussions that it was the Defendant’s wish to provide its “affiliates and the general public” with the S-100 Course over two separate course sessions with “up to 45 students total” and that he further said “I will try to put through as many people as we can initially,” describing it as “a genuine offer to provide a source of income” to the Claimant.

[83]        Lyle Jordan testified that the Defendant directly marketed the opportunity to take the S-100 Course to its employees and to other organizations, such as voluntary fire departments, but was unsuccessful in getting any outside interest.  The Defendant also used Facebook to advertise the Training Sessions.  Lyle Jordan says that he shared this information with the Claimant and he invited the Claimant to try to market the Training Sessions to others. 

[84]        He acknowledged that he received the Quote Document and as I understand it, the accompanying documentation.  He says that the details with respect to the Training Sessions were not “firmed up” with the Claimant until around May 12 or 13, 2016, based upon a series of telephone discussions between himself and the Claimant.

[85]        He denies that the Defendant ever agreed to provide any equipment, such as pumps, hoses and shovels, etc., citing the significant expense of acquiring those items. 

[86]        He further denies that the Defendant ever promised the Claimant to provide 45 students.  The Court directly presented Lyle Jordan with the hypothetical question that if only one person showed up for the Training Sessions what would be the Claimant’s entitlement for compensation?  Surprisingly he stated that it was their agreement that the Claimant would put on the two day S-100 Course for a total remuneration of $130.  He further stated that although that it was not disclosed to the Claimant, the Defendant anticipated that they would have 22 of their own staff people and may be more attending the Training Courses.  The Defendant was planning on hiring 45 employees for the 2016 fire season, who I understand would all require the completion of the S-100 Course.

[87]        While acknowledging the receipt of the Quote Document which confirmed the number of 45 attendees, Lyle Jordan went on to say that “we didn’t think anything of it at the time”.  He agreed that the Quote Document did not reference “up to and including 45 people”, and further stated that in the telephone discussions subsequent to receipt of the Quote Document that he confirmed with the Claimant that the price of $130 was only for the number of people who attended.  There was no confirming email or other document presented to this effect.

[88]        Lyle Jordan then went on to describe the presentation of the Training Sessions as a “joint venture” between the Claimant and the Defendant. 

[89]        He further stated that when the Defendant received the Invoice 218 that billed them for 12 students, that they [being the Defendant’s directors] were “fine at that time” with those charges because they had told the Claimant that there would be 12 students attending.  But he says there was a concern expressed to the Claimant in the telephone discussions to the effect that the Defendant would be paying Invoice 218 in 30 days.  He did concede that this term of payment was not reflected in the Quote Document.  Again there was no email or other document to confirm this change.

[90]        In earlier telephone discussions between the Claimant and Lyle Jordan, which Lyle Jordan places at around May 12 or 13, 2016, it is contended that the Claimant said he was having difficulty sourcing certain equipment for the Training Sessions.  In response Lyle Jordan stated that he said he would attempt to get a bladder from the Langford Fire Department to allow operation of the pump, hence he sent an email to the Claimant to that effect.

[91]        Lyle Jordan went on to say that he and the Claimant had a preliminary discussion just before the First Session got underway at which point the Claimant only then disclosed that he did not have a wildfire fighting pump because it was with his brother and he was unable to obtain it.  Lyle Jordan said that the Claimant then told him that Gene Drew, a Wildfire Branch official at the Cobble Hill Wildfire Station, had told the Claimant that it was not a problem that the pump was not present and certain “physical” aspects of the course need not occur thereby “utterly” convincing Mr. Jordan that this was allowable, because the Defendant’s employees were a medical first aid crew and not a firefighter crew.  Lyle Jordan said it was at his insistence that there be equipment and specifically a pump and therefore he made the arrangements with Richlock Rentals on an “in-kind basis” whereby the Defendant was to provide $500 of first aid medical services, to obtain a rental pump for demonstration purposes only and on the basis that it only could be observed and not utilized.

[92]        Lyle Jordan then went on to say that during those preliminary discussions that he also became aware that the Student Manuals were not being provided and suggested that this was concerning to the students in attendance because they could not access the information on the USB sticks without computers.  Thereafter, Lyle Jordan says that the Claimant had at the outset of instruction told the students that the course he was presenting was being “augmented” with the information contained on the USB sticks.

[93]        Lyle Jordan went on to say that several of the students had “looks of puzzlement on their faces” during the Claimant’s presentation.  He further suggested that there was limited interaction by the Claimant with the class, which Lyle Jordan says he usually fosters this when he is presenting a first aid course.  Mr. Jordan detailed that rather than interacting with the class, the Claimant simply sat and read from the power point presentation.  Mr. Jordan also was critical about a lack of appropriate breaks occurring during the course of the Claimant’s presentation.

[94]        Lyle Jordan stated that the Claimant got through approximately 60 to 70% of the course material on day one.  He said that at the lunch break on day one of the First Session, students approached him with concerns about the way that the course was being taught.  He said that he received further phone calls that night with expressions of concern from other students. 

[95]        Lyle Jordan contends that on the Saturday night after completion of day one of the First Session that he had accessed the USB stick and found that what was contained on the USB stick was only the S-100 Course slideshow presentation.  He testified that none of the manuals that were referenced during the evidence of the Claimant were on it and further contends that the Claimant in fact told them that the only thing on the USB stick was the slide show presentation.

[96]        However, the USB stick was not presented in court during the trial nor was one brought to court by the Defendant, Mr. Jordan’s excuse being that the Defendant had missed the deadline for production of evidence.  I note that Mr. Jordan did not put the proposition that the manuals were not on the USB stick to the Claimant for him to address during his extensive cross examination of the Claimant, notwithstanding that Mr. Jordan was told by the court of the necessity of doing so if there was going to be significantly contradictory evidence presented by the Defendant.  It is noteworthy that a very significant amount of time was spent by Mr. Jordan in cross examination questioning the Claimant about the lack of paper copies of the Student Manuals being provided at the First Session and the repeated answers from the Claimant about it being made available to the students on the USB sticks.  It is further noteworthy that during the lengthy cross examination, Mr. Jordan did advance the proposition to the Claimant about the potential risks caused to the students by the Claimant including advanced level courses on the USB stick.  This is quite curious if in fact Mr. Jordan knew that those materials were not present on the USB stick.

[97]        Notwithstanding the purported complaints Lyle Jordan had received about a lack of study materials and the absence of the manuals on the USB stick, he apparently did not raise the absence of the “augmenting” electronic manuals or other materials or in fact the very limited amount of materials, being only the slide presentation, with the Claimant prior to the commencement of day two of the First Session.  However, on day two he said that he approached the Claimant and wanted to get his assurances that the way the course was being presented would result in certification under the S-100 Course.  He was assured by the Claimant that it would and again referenced his previous discussions with Gene Drew.

[98]        Lyle Jordan says that the classroom instruction continued on day two which also included the presentation and marking of the written exam.  He says that in the afternoon there was the limited opportunity for the students to view the home safety pump obtained from Richlock Rentals.  He further said that the students were only able to observe the pump (which in fact was not a Mark 3 High Pressure Fire Pump or equivalent used in firefighting) for a period of about 15 to 20 minutes under the guidance of the Claimant.  Mr. Jordan says that by three o’clock the Claimant had completed his presentation and thereafter there was a two hour radio operator’s course presentation that Lyle Jordan made for his MEDIX staff, about the radio system used by the Defendant.  The Claimant remained in attendance for about 45 minutes of that presentation at the invitation of Lyle Jordan and then departed.

[99]        Lyle Jordan testified that the Defendant acquired the instructional rooms for the training sessions from the Langford Legion by way of an “in-kind” contra of services whereby the Defendant provided the equivalent of $1,500 of employee wages for first aid attendants at Legion events.  I note that the Counterclaim in the Reply claims $1,320 plus an extra $500 for “additional room rentals for new courses and equip rental”.

[100]     Lyle Jordan continued to detail how at the end of day two of the First Session he felt dissatisfied about the course presentation delivered by the Claimant.  When asked by the court if he ever raised concerns with the Claimant about the quality of the course or its content, Mr. Jordan indicated that before that discussion occurred, the Claimant was asking about payment for the First Session.  It is also Mr. Jordan’s evidence that it was the Defendant’s intention to pay Invoice 218 as presented on May 12, 2016 in full but on the basis of a 30 day net payment, which payment terms he stated he believed the Claimant had accepted by proceeding with the First Session without payment of either the deposit or the amount set out in Invoice 218.  He testified that he told the Claimant that arrangements would be made to make payment of the amount on Invoice 218.

[101]     Upon further questioning from the court about what was done to raise concerns with the Claimant about the Defendant’s dissatisfaction about the First Session and the fact that the Second Session was allowed to proceed, Mr. Jordan stated that:

[102]     Again, Lyle Jordan provided no evidence that any of these concerns were raised by him or any other representative of the Defendant with the Claimant prior to the Second Session taking place.  The Second Session proceeded as planned.  Lyle Jordan confirmed that he was only present to collect money from the two attendees. 

[103]     Therefore, he did not attend the actual course presentation during the Second Session on either day.  He offered little in the way of explanation as to why no MEDIX employees attended, especially in light of his email to the Claimant stating that there would be 12 attendees, other than to indicate in his evidence that the Defendant was very busy and the employees had been dispatched to deal with work assignments.  There was no evidence to suggest that there was any reluctance to send the MEDIX employees to the Second Session because of concerns about the Claimant’s presentation of the First Session.  Also there was no evidence about any complaints about the S-100 Course presentation from the attendees at the Second Session.

[104]     Following the completion of the Second Session, and within about five days, Lyle Jordan says that he did speak to an official at the Wildfire Branch to inform them about the Training Sessions and inquire whether or not the Claimant was a qualified and recognized instructor for the S-100 Course.  He was told that the Wildfire Branch would look into the matter.  He was also directed to the website for the Wildfire Branch to confirm the Claimant’s status in that regard.  The Claimant’s name did not appear on that website list.  Accordingly, Lyle Jordan then believed that the Claimant was not authorized to teach the S-100 Course.  Within a couple weeks, he did speak to an official at the Wildfire Branch who did confirm that at the time the First Session and Second Session were presented, the Claimant was qualified to teach the S-100 Course.

[105]     The Claimant was still pressing for payment of the outstanding invoices.  In response, Lyle Jordan says that he spoke with officials at the Wildfire Branch about the course format.  Based on those discussions he formed the opinion that the Claimant had not received any permission to vary from the course outline as to a required amount of 16 hours of instruction time over the two days, or vary the included class room course content, the equipment training and outdoor exercises, or the requirement to provide Student Manuals and Red Cards.  He also apparently told the Wildfire Branch officials that all of this had not occurred.  No witnesses were called from Wildfire Branch at trial to confirm any of this information. 

[106]     It is not clear about the depth of those discussions and the basis upon which they were conducted or what accurate conclusions Mr. Jordan could have reached.  This is so, especially in light of Lyle Jordan’s own evidence that at least his copy of the USB stick did not contain any manuals, he had not received a paper version of the Student Manual or for that matter any manuals from the Claimant, and also based upon the court file and specifically the Defendant’s application filed October 10, 2017, that indicates that the Defendant had been awaiting a requested copy of the Instructor Manual for S-100 Course and had not received it until October of 2017 by email.

[107]     Notwithstanding that there is no email sent from or on behalf of the Defendant confirming the reason for non-payment, namely the Defendant’s investigations about the Claimant’s certification credentials to teach the S-100 Course and whether the course had been taught properly, Lyle Jordan testified that he provided this information in telephone discussions with the Claimant.  He could not be specific as to when those discussions occurred nor was the Claimant cross examined on this point by Mr. Jordan. 

[108]     Based on the whole of the evidence it appears from the Claimant’s documents and specifically his email exchanges with Osprey, in or around May 26, 2016 and with Mel Rogers of Alpine First Aid Ltd., in or around June 1, 2016, which referenced the Claimant’s discussions with Lyle Jordan, any of those type of discussions between Lyle Jordan and the Claimant would have occurred sometime during that timeframe but likely not thereafter.  This outside last date is based upon the Claimant’s evidence to the effect that Mr. Jordan was not returning his telephone calls nor responding to his emails and was blocking the Claimant’s emails.  There is also an absence of any emails exchanged between the parties subsequent to May 31, 2016, contained within the documentary evidence other than an email sent by the Claimant to Lyle Jordan at his known email address on August 16, 2016 regarding the expiry dating issue on the Claimant’s Certification Card and further confirming his unsuccessful attempts to deliver the Red Cards to the Defendant.  This email was returned to the Claimant as undelivered with the following error message: “550 No Such User here”.

[109]     After the Wildfire Branch had confirmed that the Claimant was a certified instructor for the S-100 Course, Mr. Jordan went on to say that he felt it necessary to conduct “further investigations” and inquiries on behalf of the Defendant with the Wildfire Branch to determine the sufficiency of the programs presented by the Claimant at the Training Sessions.  In the meantime, no amounts were paid to the Claimant, notwithstanding that in Lyle Jordan’s view the Claimant was getting “aggressive” about being paid.

[110]     Lyle Jordan testified that he contacted Mel Rogers and told him that the Wildfire Branch had confirmed that the Claimant’s Certification Card was valid but that the Wildfire Branch was looking into whether or not the course had been taught properly by the Claimant.  Mr. Jordan said that he told Mel Rogers that if the S-100 Course had been taught improperly that the Defendant would “fix” that with him.  There is no evidence that Defendant ever offered to refund the course fee to Mr. Rogers or actually did so, notwithstanding that no payments were made to the Claimant.

[111]     From his evidence, it is clear that Lyle Jordan continued to have discussions with various officials at the Wildfire Branch.  He testified that his continuing concern was about the sufficiency of the course content that had been provided by the Claimant in the Training Sessions.  Because of this, he testified that he could not “in good faith” and he was “ethically” reluctant to send out the Defendant’s employees to provide first aid services for the Wildfire Branch based upon his concerns for exposing those employees to risks for which they were not adequately trained, all of this notwithstanding that in 2015 MEDIX employees were working and fulfilling the Defendant’s contractual obligations with the Wildfire Branch without that training.  He says that as a result, the Defendant turned down two “standby” opportunities for work with the Wildfire Branch.  No documentation or independent corroboration from the Wildfire Branch was provided as to the times and dates of those “standby opportunities”. 

[112]     Lyle Jordan testified that he spoke by way of telephone to Carolyn Harvey, the representative of the Wildfire Branch who had confirmed that the Claimant was validly certified to teach the S-100 Course and asked for her recommendations as to how to proceed.  As I understand, a suggestion presented by Ms. Harvey was based upon the premise that the Defendant’s employees had successfully completed the S-100 Course and had been certified by the Claimant with the issuance of the Claimant’s Certification Card and which had at that time been accepted by the Wildfire Branch.  Carolyn Harvey suggested that the Defendant could have its employees take the S10A Annual Refresher Course before the Defendant dispatched its employees in fulfilment of the Defendant’s 2016 contract with the Wildfire Branch.

[113]     The S10A Course was required to be completed annually in any event following the completion of the S-100 Course, which in the usual course would have been required in the spring of 2017.  I do not understand that the Wildfire Branch was requiring or insisting on following this procedure but rather it was offered as an interim suggestion by Ms. Harvey to help allay Lyle Jordan’s expressed concern and while the Wildfire Branch considered the adequacy of the Training Sessions presented by the Claimant.  According to his evidence, Ms. Harvey also indicated that the course presented by the Claimant “ultimately may be acceptable” as would the certifications he had issued.  As I understand it that would become clear once the Wildfire Branch had conducted its inquiries.  Caroline Harvey was not called as a witness.  No corroborating documentation such as any confirming emails or correspondence was presented into evidence by the Defendant.  It is noteworthy that there is no practical component to the S10A Course because it is an online course.

[114]     Thereafter Lyle Jordan says that the Defendant arranged with DRAM Ventures Inc. to have the Defendant’s employees, who had attended the First Session, do the four hour online S10A course (also known as S100A Course) in June of 2016 at a cost to the Defendant of $23 per student.  No documents were submitted by the Defendant in corroboration of the amounts paid and by whom and for how many.  Emma Richards for one did not take that course until 2017.

[115]     Following completion of the S 10A Course the employees were apparently dispatched by the Defendant to fulfil the Wildfire Branch 2016 contract.

[116]     Besides the Quote Document, Lyle Jordan confirmed that the Defendant received Invoice 218 and Invoice 226 by email and further that the Claimant attended at Stanley Jordan’s residence, being the Registered and Records Office and the Delivery Address for the corporate Defendant at which time Invoice 222 and Invoice 226 were presented.  According to Lyle Jordan, the Defendant took issue with the change of the rate per student from $130 to $180.  It is not clear whether that concern was raised with the Claimant.

[117]     Lyle Jordan stated that the Defendant continued to withhold payment because the Claimant was becoming “more and more desperate” to receive payment and in particular that occurred after he was told that the Defendant was investigating his qualifications.

[118]     In summary he says that the Defendant withheld payment because he says the Claimant “misled” the Defendant and failed to teach the S-100 course “in accordance with the guidelines” citing the lack of equipment training and what the Defendant says were unauthorized variations in the S-100 Course and which the Claimant had represented were authorized by the Wildfire Branch and which the Defendant contends were not.

[119]     I understand that the Defendant did not hear back from the Wildfire Branch or receive any formal notification about the result of their inquiries or any findings of deficiencies in the Claimant’s teaching of the Training Sessions or any decision on the part of the Wildfire Branch that the certifications that had been issued by the Claimant from the Training Sessions were being invalidated or that the Claimant was in anyway being sanctioned or penalized by the Wildfire Branch for his presentations at the Training Sessions.

[120]     At the end of his evidence, Lyle Jordan stated that the cover email of the Wildfire Branch Letter of Expectation from Ken Taekema of the Wildfire Branch, sent to the Claimant in or around July 6, 2017, references an “injury”.  He testified that the Claimant never made a complaint about an injury and hence he surmised that there must have been another complaint made to the Wildfire Branch about the Claimant.  There is no evidence before the court to support that suggestion.

[121]     Lyle Jordan testified that the Defendant’s Counterclaim is essentially based upon compensation for losses arising out what the Defendant contends were highly deficient Training Sessions presented by the Claimant, including recovery of lost wages for training and for retraining its employees, the management time spent conducting investigations and inquiries, throw away costs for “in kind” contra for rentals from Richlock Rentals and the “in kind” contra for rentals at the Langford Legion, and loss of business opportunities which I take it to include the “standby opportunities” that were declined by the Defendant.  Little in the way of any supporting documentation was tendered by the Defendant in support of the Counterclaim.

[122]     As part of the Defendant’s case, it called Emma Richards.  She holds a qualification as a doctor of Naturopathic Medicine.  She also holds an occupational first aid certification.  She was one of the nine employees of the Defendant that attended the First Session. 

[123]     She described the training provided by the Claimant.  She confirmed that there was a LACES component to the course although she could not recall if there were LACES manuals on the USB.  She confirmed that she was not provided with a hard copy of the Student Manual but was provided it by the USB.  She did not have computer with her on day one. 

[124]     She confirmed that at the outset of day one of the First Session, the Claimant indicated that there would be a program modification due to the fact that the attendees were first aid attendants and not firefighters, but she did not know what the modifications actually were.  She described the classroom instruction she received on day one as theoretical in nature.

[125]     She said that on day two there were more presentations of theory in the morning.  In the afternoon they went outside for a period of time to view the pump but she did not have the opportunity to use it and she says that there was an initial delay of about 30 minutes before the pump presentation occurred.  She testified that although she had never been in a wildfire situation where she needed to use a pump, she testified she thought it could be potentially beneficial.

[126]     She testified that in the course of completing the S-100 Course, she had one written exam presented to her that she wrote and passed.  There were no practical exercises.  She did not recall that there were any hand tools present except for a “pulasky”, which is apparently a tool used for chopping and grubbing.  Except for the pump attachments there were no hoses present.  She said that she did not receive any training in the use of hand tools.

[127]     To the best of her recollection, day one of the First Session went from approximately 9:30 a.m. to around 4:30 p.m. and on day two it went from approximately 9:30 a.m. until around 3:30 p.m. 

[128]     She obtained her S-100 Course certification in 2016 to be able to be certified to work at a wildfire situation.  She had worked during the 2015 wildfire season with MEDIX but the S-100 Course certification was not required that year.

[129]     She did not work in a wildfire situation during the 2016 wildfire season.  She recertified in the spring of 2017 with the S10A Course, taken online, and based upon having completed the S-100 Course and being certified by the Claimant at the First Session in 2016.  She worked as a first aid attendant for the Defendant during the 2017 wildfire season.  She never had her certifications questioned when checking in to work at any of the wildfire locations.

[130]     She confirmed that while she was near fires in an active fire zone in sight of the fire, she was not actually fighting fires.

[131]     She testified that after she received a USB stick from the Claimant, she read through the materials contained on it the Saturday night following the day one presentation.  Although she could not recall precisely, she stated that she believed it contained the S-100 Course manual and other presentation materials and, as I understand it, there was more than one file on the USB stick.  She stated she was not aware what was to be taught on the S-100 Course.  She testified that she had no difficulty in passing the course with 99%, based upon the instruction received from the Claimant and the materials provided at the First Session.

[132]     She could not recall if she was paid by the Defendant to attend the S-100 Course at the First Session but believed that the cost of the course was paid for by the Defendant who had told her to attend the course.

[133]     Emma Richards was not asked by the Defendant nor did she provide any additional evidence about the quality of the Claimant’s instruction during the First Session or any criticism or concerns she may have had or conveyed about its presentation or contents to Lyle Jordan

[134]     The burden of proof in a civil case rests with a claimant to prove their case on the standard of a balance of probabilities.  The Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53 (CanLII), [2008] 3 S.C.R. 41 at paragraph 49, states:

[135]     Therefore, the Claimant must prove the existence of the facts and other essential elements upon which he relies in order to succeed in his claim against the Defendant.  If he fails to do so, he cannot succeed.

[136]     Similarly the Defendant, as a claimant by way of Counterclaim, must do the same with respect to the subject matter of its counterclaim against the Claimant.

[137]     What does “proof on a balance of probabilities” mean?  It does not mean proof beyond a reasonable doubt.  That standard of proof applies only in criminal trials.  In civil trials, the party who has the burden of proof on an issue must convince the finder of fact (here being a judge alone) that what she or he asserts is more probable than not or to put it another way that the balance is tipped in his or her favour [see F.H. v. McDougall, supra].

[138]     The degree of probability required to meet the standard and to discharge this burden of proof has been defined by Lord Denning in the following terms:

[139]     In Smith v. Smith, 1952 CanLII 3 (SCC), [1952] 2 S.C.R. 312; [1952] S.C.J. No.  25 (S.C.C.) Justice Cartwright (as he then was) of the Supreme Court of Canada articulates the applicable test as follows:

[140]     Sopinka, Lederman & Bryant: The Law of Evidence in Canada, Third Edition (LexisNexis Canada Inc., 2009) [“Sopinka et. al”), at sections 5.52 and 5.53, provide the following useful summary:

[141]     Sopinka et. al in section 5.53 at footnote 135 go on to cite Dixon J. in Briginshaw v. Briginshaw (1938), 60 C.L.R. 336 at 361-362 (H.C.A.) for the proposition that there must be a subjective belief by the tribunal of the fact, expressed in the following words:

[142]     If the evidence on an issue is evenly balanced such that the trier of fact is unable to say where the balance of probabilities lies, then the decision on that issue must be made against the party who has the burden of proving it.

[143]     In deciding whether an issue has been proven on a balance of probabilities, the trier of fact must consider all of the evidence relevant to that issue, no matter who produced it.

[144]     Notwithstanding that there is more flexibility in admitting evidence in the small claims process [see: Small Claims Act section 16 and Small Claims Rule 10 - the Trial, and see also The Continuing Legal Education Society of British Columbia: Provincial Court Small Claims Handbook (“CLEBC: Small Claims Handbook”) parts 7:21 to 7:24 inclusive] the civil burden of proof is not diminished.

[145]     Given that the parties were both unrepresented, I have utilized both the evidence that was provided, as well as the submissions made by each party to assist in summarizing the respective positions of the parties.

[146]     The Claimant submits that, notwithstanding, he had submitted a number of invoices to the Defendant, some of which were for the purposes of seeking early resolution, which in turn were rejected by the Defendant; the amount actually owed to him is in accordance with the Quote Document.  He therefore now seeks to recover the entire amount of $5,850 (exclusive of GST) based on the Quote Document, such amount being calculated on the basis of 45 students at the block rate of $130 per student. 

[147]     The Claimant submits that relevant contractual arrangements are evidenced in writing by the Quote Document but he also seems to acknowledge that part of the contractual arrangements were oral in nature or arrived at or confirmed by exchanges of emails.  The Claimant denies the Defendant’s suggestion that it only agreed to provide students “up to” the number of 45 students.  In other words, the Claimant says the Defendant was guaranteeing the 45 students in order to get the reduced “block rate”. 

[148]     In addition to the above noted amount, the Claimant also is claiming:

[149]     Thus the Claimant’s total claim against the Defendant equals $8,612.62

[150]     As part of its general denial, the Defendant’s Reply denies the existence of a contract because there was “no written” contract.  It appears that the Defendant correctly has now resiled from the position that there was no contract because it was not in written form. 

[151]     In its defence to the claim, reliance is placed by the Defendant upon what I understand to be its allegations of breaches on the part of the Claimant, in that the Claimant failed to competently deliver a complete S-100 Course in accordance with the course outline which appears in the Instructor Manual, he failed to provide Student Manuals and failed to provide equipment at the Training Sessions, and hence the Defendant is entitled to withhold any payment from the Claimant. 

[152]     As to the compensation claim based upon 45 students, the Defendant asserts that it only agreed to pay upon the number of students actually in attendance “up to 45” in number and that no number of students was guaranteed to the Claimant.

[153]     At the heart of the Counterclaim again is the Defendant’s assertion that the Claimant failed to competently deliver a complete S-100 Course, thus resulting in unnecessary or wasted expenses for the Defendant arising out of that breach namely:

[154]     The Claimant denies the Defendant’s Counterclaim and specifically he denies the allegation that he failed to competently deliver the complete S-100 Course; therefore he also denies all consequential claims for recovery as detailed by the Defendant.

[155]     The court file and the trial document books of both of the parties indicate that each of the parties told the other and the court that they intended to call multiple witnesses and expert witnesses including witnesses from the Wildfire Branch.  That did not occur and, as noted, the Claimant relied on only two witnesses, including himself and his mother and the Defendant relied on two witnesses being the evidence of Lyle Jordan and Emma Richards. 

[156]     I will say at the outset of this analysis that the lack of witnesses from the Wildfire Branch left a significant gap in objective third party or expert evidence on the S-100 Course, as well as any corroborating evidence necessary to assist the court’s analysis and assessment of the claim and the counterclaim.

[157]     As outlined in G.H.L. Fridman: The Law of Contract in Canada, 6^th edition (Toronto: Carswell) (“Fridman”) at pages 1 to 12 , it is commonly accepted that a contract is a promise, being an undertaking as to the future conduct of the party promising (the “promisor”) with respect to whom the promise is given (the “promisee”).  The promisor agrees to act, or refrain from acting, in a certain way, to the advantage or the benefit of the promisee.  A contract consists of a promise, or a set of promises, given by one person in exchange for the promise, or set of promises made by another person.  While a contract is promissory in nature, the essence of contract is a jural relationship (that being a legal relationship), which is founded upon a mutual concordance between the parties as to the existence, nature and scope of their rights and duties.  Thus a contract is a legally recognized agreement between the parties giving rise to obligations that may be enforced in the courts. 

[158]     The initial step in the contracting process is the voluntary formation of the contract.  That requires an offer and acceptance.  The offer and acceptance must be sufficiently communicated by each party so as to make the other party aware of one’s assent to the terms as understood by the other.  Courts will not impose a contract on parties who have not concluded an agreement because the terms of the alleged contract were not certain [relying upon Norske Skog Canada Ltd. v. Companhia de Navegacao Norsul (2008), 2008 BCCA 336 (CanLII), 296 D.L.R (4^th) 513 (B.C.C.A.)].

[159]     As noted in Fridman at page 6, a problem that has arisen in relation to the idea of agreement is whether in “discovering such agreement”, the courts should be concerned with the knowledge and the intent of each individual party (the “subjective view”), or should determine the existence or non-existence by reference to some external factors (the “objective view”).

[160]     Fridman further notes at pages 6 and 7 as follows:

[161]     In situations like the present one before this Court where the contract maybe oral or partly written and partly oral, the question arises whether there are implied terms to the contract that must be given effect.  Fridman opines as follows at pages 463 and 464:

[162]     On the basis of the application of the relevant legal principles set out above, combined with the relevant evidence before the court that I do accept, I am satisfied that the parties had a reasonable expectation and intention to create an enforceable legal relationship.  In that regard I am satisfied, objectively, that both parties reasonably expected and intended to enter into a binding and enforceable contract that created legal obligations.  As noted in Bonilla v. Ciurariu (c.o.b. Geo Construcion), [2008] B.C.J. No. 1334; 2008 BCSC 925 at paragraph 72, I must further direct myself that the court must be cautious about attempting to create a valid and enforceable contract out of a vague contractual intent from the parties’ language or conduct [relying upon Fridman at pages 21 to 23 and citing Murphy v. McSorley, 1929 CanLII 29 (SCC), [1929] S.C.R. 542 at paragraph 10].

[163]     Furthermore, as noted in Bonilla v. Ciurariu, D.M. Smith J. (as she then was), at paragraph 72, says that the court should not create an agreement for the parties where none actually exists, even if it would be a fair agreement calculated to do justice to both where the parties themselves believe that they have made an enforceable agreement [citing Kelly v. Watson, (1921), 1921 CanLII 23 (SCC), 61 S.C.R. 482, 57 D.L.R. 363 at paragraph 3; and First City Investments Ltd. v. Fraser Arms Hotel Ltd. (1979), 1979 CanLII 606 (BC CA), 13 B.C.L.R.  107 (C.A.)].

[164]     Bonilla v. Ciurariu further notes at paragraph 71 that part performance of the alleged contract is one factor to consider that might support a finding that the parties intended to contract with each other [relying upon Hunt River Camps/Air Northland Ltd. v. Canamera Geological Ltd. (1998), 1998 CanLII 18009 (NL CA), 168 Nfld. & P.E.I.R. 207 (Nfld. C.A.)].

[165]     The Claimant’s and the Defendant’s contract is partly in writing and partly oral and is confirmed in part by their course of dealings with each other. 

[166]     The Claimant and the Defendant agreed that the Claimant would present the S-100 Courses at the times, locations and dates arranged between the parties for the Training Sessions.  As referenced in the Quote Document, the S-100 Courses would meet the provincial standard which I understand means it would be taught by an accredited instructor and meet the standards and requirement of the Wildfire Branch.  As part of the course, the Claimant would provide Student Manuals to all attendees at his cost, the Claimant would complete the required evaluation of the students and provide certification cards to the students who successfully completed the S-100 Courses.

[167]     Notwithstanding that in the Quote Document the Claimant sought a deposit and payment of the balance at each of the two Training Sessions, the Defendant did not expressly or by way of its conduct agree to that.  Similarly the Claimant did not accept the Defendant’s suggestion that payment would be on a 30 day net basis.  The various emails from Lyle Jordan to the Claimant regarding forthcoming payments do not support that contention.  Therefore an implied term was that the Claimant would be paid by the Defendant within a reasonable period of time of satisfactorily completing the delivery of each of the two Training Sessions. 

[168]     The parties agreed that the Defendant was to be invoiced by the Claimant at a reduced “block rate” of $130 per student.  That was on the basis of the Defendant being responsible for providing, at its expense, the equipped location for both of the Training Sessions.

[169]     I am not satisfied that the parties, as part of their contract, reached an agreement about the provision of the hands-on equipment required for the Training Sessions.  The Quote Document is silent on that point.

[170]     Each says the other was responsible for providing it, but the Claimant also says that he brought certain equipment to the First Session and that there was equipment present.  His mother, Jillian Harris, testified that she was not open to equipment being transported in her vehicle which she used to drive the Claimant to the Langford Legion.  I have concluded that there was not a lot of equipment present during the First Session.  However, it also reasonable to conclude based on the limited email exchanges regarding equipment and given the late confirmation being delivered by the Defendant that the First Session was actually to proceed, that the Claimant and the Defendant had agreed and were working cooperatively to source the required equipment. 

[171]     It is clear that the Defendant was responsible for providing any necessary advertising and marketing for the Training Sessions and for providing the students for the Training Sessions.  I reject the suggestion made by the Defendant that the arrangement reached between the parties was in the nature of a joint venture with the attendant sharing of risk and profit. 

[172]     The parties agreed that the maximum number of students for the Training Sessions would be 45.  I am not satisfied that the parties ever addressed the downside and what would occur if there were far fewer actual attendees than the number of students that were discussed between the parties and on its part the number that the Defendant expected that it could provide. 

[173]     The Claimant was told by the Defendant that there would be 12 students attending at the First Session.  The Claimant was apparently satisfied with that and therefore rendered Invoice 218 to the Defendant on or about May 12, 2016 at a unit rate of $130 per student.  Based upon Lyle Jordan’s evidence, given that the Defendant had informed the Claimant that 12 students would be present but there was an unexpected absence of three students due to work assignment commitments, the Defendant accepted that it should be responsible for paying for 12 students for the First Session. 

[174]     On May 19, 2016, shortly before the Second Session, the Defendant confirmed to the Claimant by email that he could “plan a course of up to 12” but further stated that not all of them had been confirmed.  After completion of the Second Session, the Claimant rendered Invoice 222 which changed the rate to $180 per student from $130 per student, which according to the note contained on Invoice 222 was apparently adjusted and invoiced at the higher rate based upon there being a minimum number of 10 students at the Second Session for the “block rate” to apply.  I am not satisfied that such an adjustment was either contemplated, discussed or agreed to by the parties, again because the parties never addressed the contingency of what would occur if far fewer students showed up than the numbers discussed.

[175]     I have concluded that the parties failed to reach an agreement on what the Claimant should be paid for the delivery of the Second Session.

[176]     In those circumstances where there is a contract between the parties, but by way of example, they have not agreed upon a price for goods or services to be delivered or rendered by one party to the other, the court must award money to the unpaid party on the basis of a reasonable amount for the goods or services [see Fridman at page 10].  This is described by Fridman as “contractual quantum meruit”, as distinct from “restitutionary quantum meriut” which occurs when there is no contractual relationship and the underlying principle is restitution based upon the ideal of unjust enrichment at another’s expense. 

[177]     In determining what is a reasonable amount of compensation, I must have regard to all of the evidence that surrounds the delivery of the Training Sessions and the results and benefits flowing from it for the Defendant, if any.  In that regard I must consider whether the Claimant fulfilled his contractual obligations.

[178]     The Defendant, of course, takes the position that essentially there was no value or benefit received by the Defendant because of the Claimant’s alleged failure to present the S-100 Course at an appropriate standard as required by the Wildfire Branch.  Beside no benefit being derived, the Defendant further counterclaims that it has sustained damages flowing from that breach of contract by the Claimant.

[179]     It is evident that as the time to pay the Claimant for the Training Sessions drew nearer, the Defendant’s dissatisfaction, in the person and view of Lyle Jordan, increased.  It is noteworthy that the Defendant clearly intentionally misled the Claimant about the forthcoming payments stating that they had been issued and in some fashion the payments were on their way to the Claimant, who had obviously become concerned about being paid.

[180]     The Defendant had several criticisms about the Claimant’s presentation of the S-100 Course.  An exhaustive amount of time was spent by Mr. Jordan cross examining the Claimant and in doing so reliance was being placed on the Instructor Manual and the questions were predicated on an alleged failure to follow and to complete items outlined in the Instructor Manual.  Since Lyle Jordan says he did not receive an Instructor Manual until October of 2017, some 17 months after the completion of the Training Sessions, I have concluded that several of his complaints about the deficiencies have arisen after October of 2017 and were not part of the Defendant’s initial concerns expressed to the Claimant or contained within in his original complaint to the Wildfire Branch. 

[181]     Lyle Jordan claims to have had significant concerns about Claimant’s delivery of the S-100 Course at the First Session.  He stated that the concerns were based upon his own observations and complaints from students in attendance.  Emma Richards was the only independent witness to be called and testify about the S-100 Course delivered by the Claimant that she attended.  She was not asked and did not testify about any complaints that she had and notwithstanding Lyle Jordan’s evidence, there is nothing to indicate that she raised any concerns with Lyle Jordan about the quality or content of that course. 

[182]     It was only after the completion of the presentation of the Second Session did the Defendant raise any types of concerns directly with the Claimant and report its concerns to the Wildfire Branch.  Prior to that time, the Defendant was continuing to advertise the Second Session in positive terms to third parties at $180 per student and then shortly before the Second Session was to be presented to inform the Claimant to prepare for up to 12 attendees at the Second Session.  In fact only two students, neither being employees of the Defendant, showed up at the Second Session.  Although Lyle Jordan anticipated he had several employees who would be attending the Second Session, he did not cite his apparent concerns about the quality or the sufficiency of the S-100 Course delivered by the Claimant to be the reason that the MEDIX employees did not attend.  I find the excuses proffered by Lyle Jordan in his evidence for not proactively dealing with his concerns and at least raising them immediately and directly with the Claimant to be less than compelling.  All of this significantly undermines the Defendant’s contention that the course delivered was significantly flawed and deficient.

[183]     Based upon the evidence available to the court, I have concluded that there were some deficiencies in the S-100 Course when comparing it with what might be the Instructor Manual requirements or suggestions.  However, the extent of those deficiencies, the importance of those deficiencies and the consequences of those deficiencies cannot be properly assessed by the court because of the lack of any expert evidence or at the least any witnesses from the Wildfire Branch appearing at trial to provide that evidence.  In my view the Defendant has not adequately made out any of the deficiencies as being actionable, which in my view is necessary for any recovery on the Defendant’s Counterclaim.

[184]     The un-contradicted evidence is that the Wildfire Branch did conduct an investigation of the Defendant’s complaint in whatever form it was originally made to the Wildfire Branch in or around June and July of 2016.  As a result of its investigation, no action was taken by the Wildfire Branch regarding the Claimant’s accreditation to teach the S-100 Course or the S10A Course, nor did they sanction him because of a deficient performance.  No action was taken to cancel the students’ certifications for those students that the Claimant certified at the Training Sessions.  The Claimant’s certification of the students remained valid and was the basis for those students qualifying for the S-100 Course certification requirements necessary under the Defendant’s contractual arrangements with the Wildfire Branch.  It was the Defendant’s choice alone, and not the Wildfire Branch’s actual requirement, to have the Defendant’s employees take the online S10A Course through DRAM Ventures Inc.  Lyle Jordan expressed concern about a lack of practical training on day two of the First Session but any of those alleged deficiencies were clearly not cured by the online S-10A Course.  Given all of this and in particular a lack of any concrete action being taken by the Wildfire Branch in response to the Defendant’s complaint, other than the issuance of the Wildfire Branch’s Letter of Expectation to the Claimant, the reasonable inference is that the S-100 Courses delivered by the Claimant during the Training Sessions met at the least the minimum requirements of the Wildfire Branch necessary to certify the students.  I have therefore concluded the contractual obligation of the Claimant to teach the S-100 Course at the Training Sessions as an accredited instructor and to meet the standards and the requirements of the Wildfire Branch were met.

[185]     I have concluded that the Claimant took reasonably appropriate steps to provide the Student Manuals both in an electronic form and eventually when the back ordered printed copies were received by him, and that the Claimant took reasonable steps to deliver them along with the Red Cards to the Defendant, which the Defendant thereafter returned to the Claimant without any explanation to him or to the court during the course of the trial.

[186]     Therefore I conclude that there were no material breaches of the contract by the Claimant in his performance under the contract which I found was entered into by the parties.  Therefore the Claimant is entitled to be compensated for delivering the Training Sessions.

[187]     I must now consider the basis for compensating the Claimant and have concluded that for the First Session it will be on a contractual basis being the amount billed on Invoice 218 of $1,560 representing a charge for 12 students at $130 per student and which the Defendant had accepted and agreed to pay initially after it was rendered.  No GST is chargeable or recoverable on that amount because of the Claimant’s registrant status.

[188]     I have further concluded that on a contractual quantum meruit basis that for the Second Session the Claimant will be compensated an equal amount of $1,560 representing a charge for 12 students at $130 per student.  The Defendant told the Claimant to plan for that many students.  Since the Defendant was handling the marketing and had responsibility for providing the students, it is reasonable to conclude that 12 students at the Second Session was a reasonable expectation for both the Defendant and the Claimant and therefore it is reasonable to base the Claimant’s compensation on that number.  Again, no GST is chargeable.

[189]     I must now turn to the balance of the Claimant’s claim.  I conclude that the claim for fuel costs falls outside the contract of the parties and is therefore not recoverable.  I further reject the claim for the loss of two S-100 Course training sessions.  If the Claimant is advancing that claim on the basis of performing two further sessions on behalf of the Defendant in Vancouver then I find that no contract was ever reached between the parties about those two sessions.  If the Claimant is advancing that claim on the basis of the complaint being made by the Defendant to the Wildfire Branch, I note that it was the Claimant’s own decision and not the direction of the Wildfire Branch to suspend further teaching of the S-100 Courses and hence the loss, if any, is not recoverable against the Defendant.  I reject the Claimant’s claim for reimbursement for the 40 Student Manuals.  The Claimant was obliged to provide a Student Manual for each student in attendance.  I have found that the Claimant’s compensation is to be based on 24 students.  I have no evidence of what the Claimant did with the balance of the Student Manuals that he ordered or that they were not returnable for a refund or could or could not be used by the Claimant for another purpose.

[190]     I do accept the Claimant’s claim for a corporate search in the amount of $11.50, the court filing fees in the amount of $156 and the process servicer’s fees of $330.12.

[191]     I reject the Defendant’s Counterclaim and dismiss it in its entirety.

[192]     The entire counterclaim is predicated on a breach of contract or some other breach by the Claimant in the Claimant’s delivery of the S-100 Course.  I have rejected that such a beach has occurred hence the Counterclaim has no basis.

[193]     If I were to have found that the Claimant had breached then any damages flowing from that breach would have to be reasonably foreseeable.  That test is set out in Hadley v. Baxendale, (1854) 156 E.R. 145 and the multitude of cases that have applied it.  In any event, most of the damages sought by the Defendant do not meet the test of being reasonably foreseeable. 

[194]     A party pursuing a claim or a counterclaim needs evidence to support its claim or counterclaim.  When such a claim or counterclaim relates to monetary losses or out of pocket expenses, the evidence would typically include supporting invoices or receipts.  If there is a claim for wages paid, then time sheets could be provided to show the hours worked and the wages paid.  It is not sufficient to come to court without any supporting documentation or evidence.  Thus, even if I had found that the Claimant had breached material portions of the contract, the Defendant’s Counterclaim was not proven on the balance of probabilities.

[195]     Based on the foregoing, only the Claimant is partly successful in his claim and the Defendant’s Counterclaim is dismissed in its entirety.

[196]     Under his claim the Claimant is entitled to receive from the Defendant payment of $3,120 (without GST) together with court filing fees of $156, service fees of $330.12 and the corporate search fee of $11.50 for a total amount of $3,617.62

[197]     I therefore order the Defendant to pay to the Claimant the amount of $3,617.62 plus interest under the Court Order Interest Act running from May 25, 2016 to the date of judgment.  That is a reasonable date by which the Defendant could have and should have paid the Claimant.  The Defendant had ample time after the Quote Document was sent by the Claimant to determine that the Claimant was a qualified instructor of the S-100 Course.  I direct that the Registrar will make the calculation of the interest amount.

[198]     I have reserved my decision in this matter.  Therefore I have made the above payment order in the parties’ absence.  Rule 11(15) of the Small Claims Rules governs in these circumstances.  It provides that the Claimant, as the judgment creditor, may take the realization steps set out in subrule 11(11).  The Defendant, as the judgment debtor, is similarly entitled to seek a payment hearing under Rule 12(10).

[199]     The parties will need to consider their next steps but they must do so with an appropriate measure of dispatch.  If neither party initiates any of the steps contemplated by Rule 11(15) of the Small Claims Rules and the rules and subrules incorporated by reference in by Friday, November 16, 2018, then I order that the Defendant pay the full amount of the judgment to the Claimant by that date.