IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Garry and Penny Seguin (Mr. and Mrs. Seguin or the Seguins) were foster parents for the Ministry of Children and Family Development (the Ministry). They cared for a troubled child who needed significant supervision and resources. The Ministry terminated the Seguins’ contract for care of the child without notice. The Seguins claimed the Ministry breached their contract and filed an amended Notice of Claim on November 13, 2018 seeking relief under nine separate headings. The Ministry filed a pro-forma reply denying everything.

[2]           About three months later the Ministry filed an Amended Reply setting out various facts and maintaining that the claim should be dismissed in its entirety. After the settlement conference, the Ministry’s application to revise its Amended Reply was granted and a further Amended Reply was filed on August 22, 2019. The Ministry admitted it had breached the Seguins’ contract by not complying with the notice requirements. At trial, the Ministry also conceded that Mr. Seguin had suffered compensable losses arising from acts of the foster child.

[3]           Despite the admissions and concessions, there remain a number of outstanding issues, including a determination of contractual terms, whether the contract permitted agreements external to it, whether Ministry policies were part of the contract or otherwise binding on the Ministry, whether the Ministry was negligent in failing to follow its policies, whether there should be punitive and aggravated damages, and quantum of damages.

[4]           The Seguins first became foster parents in 1996 and have cared for over 600 children of various ages, from shortly after birth to 18-years-old, at various places in British Columbia. A Director, on behalf of the Ministry, and the Seguins first entered into a written agreement for them to be foster parents for the child JC from April 29 to October 31, 2016. That and the subsequent written contracts are entitled “Family Care Home Agreement” and I will refer to them as written contracts or “FCHA”. The second FCHA covered the period November 1, 2016, to April 30, 2017, the end of the fiscal year for the Ministry. The third FCHA covered the period May 1, 2017, to August 31, 2017. It was brief and intended to allow the parties sufficient time to renegotiate the terms of the final written contract, expected to end in October 2018 when JC turned 19 and the Ministry would no longer be responsible for him. The fourth FCHA (FCHA4), which is the subject of this dispute, covered the period from September 1, 2017, to October 12, 2018. The FCHAs are basically service agreements in which the caregivers are paid to provide a service, being a foster parent.

[5]           The Seguins claim that the FCHAs were supplemented by oral agreements and governed by policies set out in the Foster Family Handbook, 5^th Edition (FFH). The Ministry took the position that there were no oral agreements or terms in addition to the written contracts, that any concessions made by the Ministry did not amount to a variation of the FCHAs terms or an oral contract, and that the FFH was simply a policy document, not part of any contract and not binding on the Ministry.

[6]           A contract is a binding agreement between two or more parties. It is formed by an offer, acceptance of the offer and consideration. What the actual offer is may vary through negotiation. Consideration is something of value that cements the accepted offer and creates the binding and enforceable nature of the agreement. A contract does not have to be in writing. Some contracts are very simple and have only one term. As contracts increase in complexity, they have more terms. Some terms define what words or phrases mean. However, even complex contracts may be incomplete or allow for variations. Where a contract is incomplete, terms may be implied, and variations may be oral or written.

[7]           The basic tenets of contractual interpretation were recently stated in Sattva Capital Corp. v. Creston Moly Corp.[1] The main consideration is to determine the intent of the parties and what they understood. The contract must be read as a whole and the words used given their ordinary and grammatical meaning (unless defined), consistent with the surrounding circumstances known, or that reasonably ought to have been known, to the parties at the time the contract was created. Subjective intentions, including what a party thought a term meant, are irrelevant. The parol evidence rule does not allow evidence outside the words of the written contract that would add to, subtract from, vary, or contradict a contract that has been wholly reduced to writing. However, the rule does not prevent examination of the surrounding circumstances. Evidence of terms or agreements outside a written contract is permissible where the entire agreement has not been reduced to writing or where there is a collateral agreement made before the written agreement that is not inconsistent with the written contract.[2] Good faith considerations inform interpretation of contracts as well as their performance[3].

[8]           The FCHAs have a variety of drafting errors. For example, “Caregiver(s)”, “Caregiver Services”, “Service Schedule” and “Payment Schedule” are defined. Yet when those terms are apparently meant to be used, they are not, either because they are not capitalized, or they are otherwise not properly set out. For example, section 3.01 refers only to “Services” which is undefined; section 3.02 refers to “Services Schedule”. Schedule “A” is said to be the “Service Schedule” although it is headed “Services Schedule”. Because section 15.04 states that headings are not part of the agreement, “Services Schedule” is an undefined term.

[9]           Given that the defined terms in the FCHAs, as well as various sections, are apparently used throughout the Province, those basic drafting errors are surprising. However, it is usually clear that variations of words or phrases were meant by both parties to refer to the defined terms, where applicable. Accordingly, in line with the general rules of contractual interpretation, I interpret the contract in that way where permissible. I also note it appears the FCHAs are very one-sided: they expressly set out many requirements for a caregiver and very few for the Ministry. However, there is insufficient evidence to conclude they are a standard form contract because there is evidence that different parts of the province have different policies and practices and will negotiate various terms differently.

[10]        The dispute in June and July 2018 that led to the Ministry terminating FCHA4 arose because of the parties’ different perspectives on who should pay for relief caregivers during the Seguins’ planned holiday in July 2018. Evidence as to what the Ministry thought the terms of the contract meant are irrelevant. The Seguins did not claim that the FCHAs set out the alleged agreement for the Ministry to pay for the relief caregiver during their holiday. They maintained it was a separate oral agreement or term. The Ministry argued that the entire agreement between the parties was contained in FCHA4. Accordingly, first step is to examine the contract to see what it says about payment for relief caregivers.

[11]        Section 3.02 of FCHA4 states that the Seguins had to provide the services set out in Schedule A and pay the costs associated with providing the services, unless otherwise arranged. The Ministry argued there was no such arrangement external to the written contract. Assuming that is so, Schedule A, point 6, sets out that the Seguins had to use the funds paid by the Ministry under Schedule B to pay for various costs incurred in caring for the child “together with relief (up to three days)”. “Relief” reffered to relief care for the foster child. Schedule B sets out the amount of payments and how they will be made during the term of FCHA4. No payments were set out for respite, which is different from relief[4], and relief is not mentioned. Nothing in Schedule B affects the interpretation of Schedule A. Based on section 3.02 and Schedule A, the Seguins only had to pay for three days of relief during the period covered by FCHA4. But there are other considerations.

[12]        Section 3.03 sets out that the Seguins had to comply with “all standards and policies” developed in consultation with the B.C. Federation of Foster Parent Associations (BCFFPA) supplied to them. The Ministry argued that the Foster Family Handbook, 5^th Edition[5], was not proven to be such a document. Yet it was referred to in testimony as applying to the Seguins’ contract, it was made an exhibit as part of the Ministry’s evidence, and was the only such document in evidence. If it was not relevant, as argued, it was inadmissible. The FFH may not have contained all of the standards and policies, but it was a document setting out many of them. I find the FFH is a document referred to in section 3.03.

[13]        Despite section 3.03, the Ministry argued that policies were not part of FCHA4. The Resource Work Policies[6] (RWP) were referred to in testimony and argument, and entered as an exhibit at trial by the Ministry. There is no evidence that the RWP was made in consultation with the BCFFPA, so it would not be incorporated into the written contract by section 3.03. If the Ministry’s position is correct, it should not have been referred to or entered into evidence. Assuming the Ministry’s position is correct, then neither the FFH or the RWP affects the clear wording of Schedule A, point 6. Based on the Ministry’s position, the Seguins were still only obliged to pay for three days of relief during the term of FCHA4.

[14]        The FFH sets out how caregivers are to arrange for relief and requirements for relief workers. It also states that funding for up to three days’ relief per month are provided within the payments to caregivers at Level 3[7], which was the level required for JC. Even if the FFH was incorporated into FCHA4 pursuant to section 3.03, the reference to what was included in payments does not oust or alter the clear wording of the written contract. FCHA4 could have easily stated that the Seguins had to pay for relief up to three days each month. It did not.

[15]        The clear language of point 6, Schedule A, in the context of the entire contract and the surrounding circumstances as accepted by the Ministry, is that the Seguins were only obliged to pay for up to three days of relief between September 1, 2017, and October 12, 2018. The cost of relief caregivers according to the relevant schedule[8] and oral testimony was $90.89 per day. The Seguins were therefore only obliged to pay $272.67 for relief during the term of the contract.

[16]        It is not disputed that they had paid well over that before taking their holiday in 2018; and on June 29, 2018, the first day of their holiday, they had agreed to pay a further $550 for relief caregivers during their holiday. That more than fulfilled their obligations on the face of the written contract. The Seguins were not in breach of the express terms of FCHA4. They had already paid more than required. The Ministry breached the express terms of FCHA4 by demanding that the Seguins pay more, when in fact they had significantly overpaid. On that basis, the Seguins would be entitled to be reimbursed for their overpayments, 10 months at $272.67 per month, totalling $2,726.70.

[17]        As noted, there are many inconsistencies in FCHA4. Section 3.01 states: “The Caregiver(s) must provide the Services in accordance with the provisions of this agreement.” In the circumstances, I find the reference to “Services” in this section and elsewhere is meant to refer to “Caregiver Services” as defined in the contract. In effect, it is a reference to Schedule A.

[18]        Section 3.02 states:

[19]        I find the reference to “Services Schedule” is meant to refer to Schedule A. This section leaves open the possibility that the parties could make arrangements other than those set out in that schedule. There is no requirement that such arrangements be in writing.

[20]        Section 3.04 provides that the Director could, from time to time, in writing or verbally, give instructions to the caregiver “as to the performance of the Services”. This contemplates variations to those services set out in Schedule A. Section 3.05 refers to verbal instructions by the Ministry in emergency and non-emergency situations that must be followed. Those instructions also contemplate something different from what is set out in writing.

[21]        Section 4.01 states:

[22]        In the circumstances, I find the reference to “Caregiver(s) Services” is meant to refer to “Caregiver Services” as defined in the written contract. That section clearly permits additional funding if the Ministry agrees, provided that it is in accordance with the Payment Schedule. Schedule B, the Payment Schedule, provides under Part I (c) that there may be extra payments in relation to extraordinary costs as provided for in the Service Schedule. However, these terms do not seem to cover the situation in section 3.02 where there is another arrangement. I find that there is an implied term that payments will also be made in accordance with any other arrangement made under section 3.02, so that the intent of that section can be fulfilled.

[23]        Section 4.06 sets out that any excess payment, if due to an administrative error, is an overpayment. That clause does not change the fact that some payments not expressly set out in the written contract can occur and are not due to administrative error.

[24]        Section 12.01 states:

[25]        Historically, it appears that a great deal of discussion, consent and approval was oral and in emails. Neither party suggested that those approvals or consents were not effective or binding. That history is part of the surrounding circumstances that inform the interpretation of FCHA4 and therefore, this section. I also note that the addresses are set out as addresses “for notice”, which are not “headings” under Clause 15.04. They also inform what was meant by this section.

[26]        The parties did not intend this term to be interpreted as always requiring that every consent or approval be in writing and delivered to the set out physical address to be effective and binding. This section was meant to refer to more formal matters such as a notice of termination under section 11.01(b), waiver of a provision pursuant to section 13.01, or consent to modify the contract pursuant to section 13.02.

[27]        Section 13.02 states “No modification of this agreement is effective unless it is in writing and signed by both the Caregiver(s) and the Director.” As noted, several variations are permissible, including oral ones. Those oral variations were meant and considered by the parties to be effective and binding. This section could not apply to those variations. I find that this term was meant to apply only to formal modifications to the written contract. That interpretation is consistent with the circumstances known by both parties at the time the contract was formed.

[28]        That interpretation also informs the interpretation of section 13.03, which states “This agreement and any modification of it constitute the entire agreement between the parties as to performance of the Services.” The modification referred to is a modification made pursuant to section 13.02, as opposed to any other ‘modification’ clearly permitted by the written contract. In addition, it is noteworthy that section 13.03 is limited to “performance of the Services” (again, presumably “Caregiver Services”, because “Services” is not defined; it is only a heading that, pursuant to section 15.04, is not part of the agreement). That means that there can be agreements external to FCHA4 that do not relate to performance of the services set out in Schedule A.

[29]        Finally, at least in respect of sections 3.02 and 4.01, as modified by the implied term, arrangements for Caregiver Services different from those set out in Schedule A would not require FCHA4 to be modified. They are expressly contemplated and permitted. The terms of FCHA4 permit and require reference to and incorporation of external material to make the agreement effective. That interpretation is supported by the surrounding circumstances known to both parties, because the history of the parties’ dealings included various alterations or additions to the FCHAs.

[30]        During prior FCHAs with precisely the same relevant terms, there were agreements that the Ministry would pay for, or the Seguins did not have to pay for, relief caregivers during their vacation. The only relevant fact at this stage is that the parties made oral agreements external to FCHAs. The reasons why the Ministry did so are irrelevant, as is the means by which that agreement was accomplished.

[31]        The Ministry argued that those historical arrangements were not collateral or separate oral agreements that related to the FCHAs because the only valid contracts were in writing, and that the Ministry merely waived provisions of FCHAs when it paid for the Seguins’ relief caregiver while they were on holidays.

[32]        Section 13.01 of the relevant FCHAs was a consistent term and stated:

[33]        There is no evidence whatsoever that the Ministry put any such waiver in writing or that any waiver was signed by the Ministry when agreeing to pay for the relief caregiver. Under the express terms of the FCHAs, the Ministry could not and did not waive any of its provisions. There is no basis for that submission.

[34]        Since there was no valid waiver and both parties intended and acted as though those other arrangements were binding and effective, they must have been valid separate oral contracts or terms of the entire agreement. In fact, that was as much as admitted in paragraph 63 of the Ministry’s Amended Reply filed August 22, 2019. That paragraph sets out that in the previous contract[9], for all relevant purposes identical to the contract in issue, “the Ministry had agreed to pay” for weekend relief contrary to the Ministry’s policies. That acknowledges that there were in fact collateral or separate agreements between the Ministry and the Seguins.

[35]        It is clear the Seguins relied on what they were told by the Ministry’s representatives, and based on those agreements or representations, signed the FCHAs, making the representations or agreements enforceable. It is irrelevant that any such indication did not come from a person with the actual authority to approve it. What matters is ostensible authority, and there was no evidence nor any argument that the Ministry personnel involved did not have that ostensible authority.

[36]        In addition, various emails from May to July 2018 revealed discussions regarding payment for relief during the July 2018 holidays, acknowledgment of previous similar or “special deals”[10] outside of the written contract, and proposals about payments for the July 2018 relief caregiver. Some of the conversations were over the telephone, indicating that at least negotiations, including various offers, were oral. I have no doubt that the parties knew that a valid acceptance could have been oral as well. All of that evidence filed by the Ministry supports a contractual interpretation that permits oral agreements in addition to the written contract. That is also consistent with testimony from Ms. Smith, a Ministry employee, to the effect that arrangements where the Ministry agreed to pay for the Seguins’ relief caregivers during their holiday would not be written in an FCHA, and Ms. Johnson’s testimony that the arrangement – an agreement – was that the Ministry would pay for relief three weekends per month.

[37]        The Ministry argued in its Amended Reply that the Resource Work Policies mandated what payments could be made to caregivers, and that the Ministry could make additional payments[11]. The Director relied on those policies in arguing what the written contract meant. The RWP is a Ministry document. If, as submitted in oral argument, policy is not part of the contract, in cannot aid its interpretation, because it represents the Ministry’s subjective belief about what the contract means. The RWP included the possibility of extra payments not set out in FCHA4. Schedule B of FCHA4 specifically incorporates policy for the purpose of determining the amount of payments. Schedule D also incorporates policy. Apart from demonstrating the lack of merit in the Ministry’s position that policy was not part of the contract, FCHA4 leaves open the possibility that other policies could be part of the entire contract.

[38]        The Ministry argued that the contract was for full-time care, seven days per week because the Ministry only made contracts for full-time care. There was no evidence to support that submission, but there was evidence contrary to it. The nature of the care is not specified in the FCHAs. Also, the evidence shows that the parties had agreed that the Seguins would only care for JC during the week. Ms. Smith, the Seguins’ contact person in the Ministry, testified that the Seguins were originally contracted to provide care for JC on weekends only, and then that changed to care from Monday to Friday. In cross-examination by Ministry’s counsel, Ms. Johnson, Ms. Smith’s supervisor, testified that although the Ministry did not normally agree to pay for relief caregivers, that was the arrangement the Ministry had with the Seguins.

[39]        During the third FCHA, the parties negotiated changes that would apply to FCHA4, including when JC would be picked up from relief caregivers and who was to drop him off. Those details were not in FCHA4, but both parties considered that they were part of the overall agreement. In other words, the very nature of the agreement and the services the Seguins were to provide were not entirely in FCHA4, policy documents, or written down anywhere. The full agreement was not contained in FCHA4.

[40]        In summary, I find that FCHA4 permitted oral variations and additions, and that was contemplated by the parties at the time their agreement was created. At the least, sections 3.02 and 4.01 permitted the parties to make arrangements so that the Seguins did not have to pay for a relief caregiver during their July holidays and those arrangements were permissible in law.[12]

[41]        The Seguins bear the onus of proving the existence of an agreement or representation outside FCHA4 on a balance of probabilities. The Ministry had agreed to pay for the Seguins’ holiday relief previously, pursuant to special arrangements external to the relevant FCHA, as testified to by Mrs. Seguin, Ms. Smith and Ms. Johnson.

[42]        Mrs. Seguin testified that, consistent with previous FCHAs, she did not expect FCHA4 to state how the holiday relief caregiver for July 2018 would be paid for, because it had always been a separate oral agreement. She testified that in late June 2017 the parties were negotiating the terms for FCHA4. The Seguins signed it on July 6, 2017, and Ms. Johnson signed it the next day for the Ministry. Mrs. Seguin testified in some detail that how their 2018 holiday relief would be paid for were of real significance to the Seguins, especially changes in their overall agreement meant they would no longer have relief money to save for that holiday. She testified that the Ministry agreed to pay for the holiday relief caregiver in a telephone conversation with Ms. Smith, the Seguins’ assigned resource worker with the Ministry, on June 28, 2017. It was clear from the evidence that continuing the prior arrangement for holiday relief in 2018 was essential to the Seguins agreeing to care for JC.

[43]        Mrs. Seguin also testified that she had several other conversations with Ms. Smith about the holidays after the contract was signed and that Ms. Smith never suggested the Seguins would have to pay for holiday relief caregivers until June 29, the first day of their holiday. Mrs. Seguin testified that when she was told that by Ms. Smith over the phone, she replied that the Ministry was in breach of their agreement, that Ms. Smith did not dispute that, and that Ms. Smith was upset and emotional in delivering the Ministry message that the Ministry would not pay for holiday relief.

[44]        On June 28, 2017, in two emails to Ms. Johnson[13], Ms. Smith’s Team Leader, Ms. Smith recorded the result of ongoing negotiations with the Seguins – almost all was agreed upon. The only exception related to how – not whether – holiday relief would be paid for by the Ministry. The emails confirm the details testified to by Mrs. Seguin, which bolsters her reliability, as well as a proposal by the Seguins as to how their holiday relief could be paid for by the Ministry. The response to those internal emails is not in evidence. What is clear is that Ms. Smith knew and conveyed to Ms. Johnson that how the Ministry would pay for the Seguins’ holiday relief was an issue that needed to be settled, and the Seguins’ proposal to accomplish that was required for them to sign FCHA4.

[45]        Ms. Smith testified that just before the Seguins’ holiday, there was no agreement as to who would pay for relief caregivers, that she was told by her supervisors that she had to terminate the Seguins’ contract and did so on July 12, 2018, and that after Ms. Johnson returned from her holidays, the termination was extended to the end of July. However, that does not necessarily answer the Seguins’ claim that there was an agreement well before then. It leaves open the possibility of a prior agreement that was later breached, as claimed by the Seguins.

[46]        Ms. Smith testified that her email to Ms. Johnson dated June 29, 2018[14], acknowledged that there was a “special deal” made “awhile” before that date. Although the “special deal” was not specified, it is clear it referred to a Ministry agreement to somehow pay for the relief caregivers during the Seguins’ July 2018 holiday. She used those same words elsewhere in her testimony to refer to the arrangement that the Seguins did not have to pay for three days of relief care each month.

[47]        The relevant policies required a caregiver to pay for three days’ weekend relief and any holiday relief. To do so, a caregiver would ‘save’ by not using weekend relief. The Seguins’ arrangement with the Ministry allowed them to save money they would otherwise have to spend, effectively meaning they did not pay for their holiday relief. There were two ways holiday relief could be paid for by the Ministry: paying for all weekend relief, which allowed the Seguins to save money allocated for their one weekend; or having the Seguins pay one weekend each month, and the Ministry then paying for holiday relief. The Ministry had paid for holiday relief in 2016 and paid for all weekends in 2017.

[48]        Ms. Smith testified that Ms. Johnson would not honour that special deal and that she was concerned that the Ministry only told the Seguins they had to pay for holiday relief on the first day of their holiday, the day before they were to leave for Mr. Seguin’s brother’s funeral. That accords with Mrs. Seguin’s testimony that Ms. Smith was upset in conveying that news. Ms. Smith also testified that she was not able to convince Ms. Johnson to be fair and deal with the Seguins in good faith. Good faith would not be required if there was no prior agreement. That corroborates Mrs. Seguin’s testimony that the Ministry had agreed to pay for the relief caregivers well before June 2018.

[49]        Ms. Smith later testified that to her recollection the July holiday relief negotiations had not been finalized by the time the contract was signed, and that in effect there was no further discussion of it until June 29 when the Seguins were told they had to pay. Although Ms. Smith was trying to be accurate, she could not recall many details. She did not dispute that events or details suggested to her were incorrect. In addition, it appears she was, as she said, “putting pieces together” during her testimony. In other words, she was not remembering what happened but testified as to what she thought would have happened. I cannot rely on those aspects of her testimony. Some other testimony seemed to suggest that there was no holiday relief agreement before FCHA4 was signed. In one answer[15], Ms. Smith testified that the holiday relief issue had not been completely agreed to and that the Ministry had “a lot of hoops we had to go through to get it completely approved”. On the one hand that may suggest there was no agreement; and on the other, that finalizing the agreement was an internal Ministry process. That testimony does not preclude the possibility that agreement had been conveyed to the Seguins before FCHA4 was signed.

[50]        Ms. Smith also testified that all of the details except for the relief care had been put into the FCHA. In fact, some of the details were not in it. That understanding of Ms. Smith, and other employees of the Ministry, are indicative of the flexibility that the FCHAs provided in not including various details and the historically lax approach of the Ministry with respect to binding verbal arrangements. Ms. Smith’s testimony surrounding the events of June 29, 2018, as reflected in her emails that date, is the most reliable and compelling.

[51]        She testified in cross-examination that she struggled with whether the Ministry acted fairly in not paying for relief care because of Mr. Crosthwaite’s position: if it was not in the written contract, there was no agreement. She testified that there was an understanding that the Seguins always had the July holiday relief paid for, the Ministry knew that and had always honoured it. In response to my questions, she testified that the arrangement for holiday relief was an agreement that was outside the FCHA, that it was an agreement from the outset of the Seguins caring for JC, that it was a mutual understanding that rolled over from one contract to the next, and that the Seguins had the expectation that the agreement regarding holiday relief would continue to be honoured. She also explained that the Ministry process became more formal under Mr. Crosthwaite, that she had to use forms and eventually go before a committee to get formal approval for funding, and that she had not had time to go to the committee. That would be the internal process she referred to previously. She again repeated that Mr. Crosthwaite said that because it was not in the written contract, it in effect did not exist as an agreement, and that position is what “caused this”. I took that to mean it caused the dispute that resulted in FCHA4 being terminated.

[52]        Overall, Ms. Smith’s evidence supports the Seguins’ claim that the Ministry had agreed to pay for the Seguins’ holiday relief in 2018, well before June 29, 2018. The parties’ conduct over all past FCHAs was that there was a mutual understanding that their holiday relief would be paid for by the Ministry, somehow. There was no evidence that the internal changes in the way the Ministry negotiated was any different in June and July 2017. As far as the Seguins knew, the arrangement would continue. No one told them otherwise until June 29, 2018. Through no fault of theirs, the Seguins operated on the understanding the agreement was still in place until Mr. Crosthwaite said it was not, simply because it was not expressly in FCHA4.

[53]        Ms. Johnson’s email to Ms. Smith on June 28, 2018, at 8:03 p.m.[16] indicates there had been a prior discussion about weekday relief and her view that it was the Seguins’ responsibility. She asked if Ms. Smith agreed, which suggests the Ministry’s position was unclear. Ms. Smith’s reply, at 9:35 a.m. on June 29, 2018[17], indicated she did not agree because she proposed a way for the Ministry to pay for the holiday relief. The emails show that Ms. Smith thought the Ministry should pay for holiday relief. The only basis for that belief would be an agreement the Ministry would pay. Not doing so would be unfair and not acting in good faith – as Ms. Smith testified.

[54]        Ms. Smith also wrote that Ministry staff needed to meet and clarify what they said and did regarding three days’ payment and holiday relief because “we are too all over the map right now.” She continued and stated she did not think the Ministry should tell the Seguins they had to pay for holiday relief care “the day before they leave on holidays and going to a funeral.” Taken in context, that is an indication that the Ministry was very inconsistent with how they treated foster parents and the alleged requirement that they pay for three days’ relief each weekend. It was a clear indication that the Ministry made different arrangements with different foster parents. It is also indicative of a prior agreement with the Seguins that, however accomplished, they would not have to pay for weekday relief caregivers during their July holiday. Ms Johnson agreed that the Ministry team needed to discuss the topics of relief care and vacations, in effect agreeing that the Ministry was inconsistent.

[55]        In an email to her manager[18] Mr. Crosthwaite, Ms. Johnson disputed that she had ever agreed to pay for the Seguins’ holiday relief. That email was written almost one year after FCHA4 was signed and it supported Mr. Crosthwaite’s position. I place less weight on it. She testified that the Seguins had an “arrangement” with the Ministry that they would get relief on weekends. It was an external agreement and not inconsistent with the FCHAs. Despite being involved in contract negotiations, Ms. Johnson erroneously thought that each of the FCHAs had the same term requiring the Seguins to pay for three days’ relief each month. The FCHAs did not say that. Her view that the Ministry did not enforce the contract is inadmissible as opinion and irrelevant. Those statements were also not responsive to the questions asked and I conclude were added to try to give force to the Ministry’s position, revealing bias.

[56]        Even if the contracts required the Seguins to pay for one weekend of relief each month and the Ministry agreed to not enforce that term, it was still an agreement the parties had negotiated and led to the FCHAs being signed. Ms. Johnson agreed that the arrangement in 2016 was not in the relevant FCHA. Such an external agreement was permissible based on the evidence before me[19] and could and did amount to a separate contract, or an arrangement under section 3.02. Ms. Johnson testified that, “we had to enforce” the term in the last contract. I take that to mean that Mr. Crosthwaite interpreted FCHA4 to require the Seguins to pay for holiday relief care, and that was a direction he gave to those under his supervision which led to it being relayed to the Seguins on June 29, 2018 by Ms. Smith.

[57]        Ms. Johnson testified that she interpreted the email on June 28, 2017[20] as Mrs. Seguin merely wanting to put her position on the record. She did not think it indicated the Seguins wanted relief care as part of their agreement. Nowhere is it intimated that Mrs. Seguin merely wanted it put on record, and in the context of the negotiations and importance of holiday relief care, I cannot imagine how it would be reasonable to come to that interpretation. Later in her testimony, Ms. Johnson agreed that the holiday issue referred to in the second email was a matter that required further discussion. The relevant part of that email states: “They want one stipulation for us to agree to. If [JC] goes to his family for one weekend in a month, they want that counted as the weekend they pay for.” Both emails were linked - they were sent the same minute. Her answers are inconsistent and I do not accept her testimony on this point. In addition, her interpretation is irrelevant.

[58]        Ms. Johnson was evasive at times, not answering questions fully or directly. Her position that the Seguins could bank time by taking less relief each month would fundamentally change the agreement that the Seguins would not care for JC on weekends. She was admittedly unaware of details of negotiations between the Seguins and the designated Ministry point person, Ms. Smith. In summary, I do not accept Ms. Johnson’s testimony that the Ministry did not agree to continue to pay for the Seguins’ holiday relief, or regarding the substance of negotiations.

[59]        In addition, she was not speaking directly to the Seguins; Ms. Smith was. Whatever she said or did is not direct evidence that the Seguins were told the Ministry would not pay for their holiday relief. Her testimony did not, and could not, touch on the point of whether the Seguins knew the Ministry had not agreed to pay for their holiday relief. At best, it might be said the Ministry was silent during negotiations as to whether it agreed to pay. But that silence was in the context of a history of that agreement “rolling over” from one contract to the next. There is no evidence that any Ministry staff made it clear to the Seguins the Ministry was not agreeing to pay for holiday relief until June 29, 2018. As asked by Mrs. Seguin, “how can it be a negotiation in good faith if we didn’t know [the Ministry’s position]?” In other words, the evidence is clear that the Seguins relied on the fact that despite the wording of policy, somehow the Ministry agreed it would pay for their holiday relief, and that agreement continued from one contract to the next. Nothing was said or done to disabuse them of that understanding before they signed FCHA4.

[60]        The July 2018 holiday caregiver relief was central to the Seguins’ concerns in negotiating FCHA4. The agreed-upon care, from Monday to Friday, was because JC was so difficult. His own family could not have him even for a weekend. There were problems with relief caregivers in July 2018 used by the Ministry to care for JC - they were worn out and did not want to continue after a relatively short period. It seems only the Seguins could care for JC for a significant period. They needed breaks and the Ministry knew that. That is what originally led to the Ministry agreeing to provide weekend relief, and why the Ministry agreed that the weekend relief continue.

[61]        Under the last contract, if the Ministry did not pay for holiday relief, the Seguins could not bank time for their holiday unless they had JC at least one weekend each month. Since JC’s care precluded having visitors, in effect that would mean the Seguins would care for JC for at least 12 days straight without a break and without visitors. That was never contemplated by the parties and would likely compromise the Seguins’ ability to care for JC. By all accounts, JC did far better in the Seguins’ care than anyone else’s, and I have no doubt that was in part due to the agreement that they would not have him on weekends.

[62]        The third FCHA expired August 31, 2017. It was only four-months long, to give the parties time to negotiate FCHA4. There was no urgency to sign FCHA4 in July 2017. The Seguins would not have signed it if they were not satisfied that the Ministry had agreed to continue paying for their holiday relief. On the whole of the evidence I accept, I find that the parties accepted that the agreement that the Ministry would pay for the Seguins’ holiday relief caregiver would continue as it had, before the parties signed FCHA4. The Seguins relied on that tacit agreement in signing the FCHA.

[63]        The Ministry admits that the Seguins were not given 60 days’ notice of termination as required by the section 11.01(b) of the FCHA. The Ministry says that the result of that contractual breach should be that the Seguins are entitled to remuneration under the contract for 60 days from the date of termination, July 12, 2018, and therefore, the Seguins should be paid until September 12, 2018. The Seguins say that they should be paid to the end of the contract, October 12, 2018. They also claim various other losses arising from that breach and seek aggravated and punitive damages, in part because the failure to provide written notice in accordance with the Foster Family Handbook meant the Seguins could not pursue a dispute resolution process and were forced to litigate.

[64]        Sub-issues are:

[65]        Although there was evidence that the contract was terminated on July 12, 2018, the Ministry later agreed to extend payments to the end of July and stated to the Seguins that FCHA4 ended on July 31, 2018[21]. Ms. Smith testified that the contract was not terminated until the end of July. The Ministry’s position that it was terminated on July 12 is contrary to their own evidence and unsustainable. It was terminated on July 31, 2018.

[66]        The Ministry argued that in the absence of an express contractual term in FCHA4, its failure to comply with policy was of no legal import. In its Amended Reply filed August 22, 2019, many references were made to policies that were publicly available on the BC Foster Parents website and reflected in the FFH. The Ministry relied on those policies in arguing that they conclusively set out the possible remuneration to the Seguins - in other words, that they were part of the contract. The Ministry also argued that the Seguins were bound by the policies, for example, that they had to pay for relief caregivers in accordance with policies; yet seemingly contrary to those arguments, the Ministry also argued that policies relating to rights of foster parents were not part of FCHA4 and did not create an independent legal obligation on the Ministry to follow them. In light of my conclusions, I do not analyze whether they could create an independent cause of action.

[67]        The FFH was developed by the Ministry in conjunction with the B.C. Federation of Foster Parent Associations, which was also a body through which disputes could be resolved. Pursuant to section 13.06 of FCHA4, the Ministry was required to make the FFH available to the Seguins because it set out the applicable standards and policies for performance of the caregiver services. The contract also expressly required the Seguins to comply with all applicable laws, but was silent as to a similar obligation on the Ministry. Nonetheless, the Ministry was bound by relevant laws.

[68]        Section 3.03 of the written contract stipulated that the caregivers had to comply with all standards and policies, at least some of which were in the FFH. More particularly, that section required the Seguins to comply with Ministry policies regarding dispute resolution. The FFH and another document set out policy with respect to resolving disputes between foster parents and Ministry staff in the Interior Region[22]. The foster parent rights section in the FFH includes a number of items, including a right to receive information about the child in their care, standards expected by the Ministry and the consequences of not meeting those standards, the right to receive the regional protocol for resolving disputes with the Ministry, the right to be provided with reasons “as soon as possible” when a child is removed from a foster parent’s home, reasons why a foster home was closed, the right to be provided with reasons an agreement is terminated and the right to appeal that decision[23].

[69]        The right to appeal is part of the dispute resolution process and is predicated on being given written reasons. The Seguins were never given the reasons for termination or reasons for JC’s removal in accordance with the Ministry’s policies. The Seguins could not follow the dispute resolution process as required by FCHA4 because the Ministry failed to provide written reasons. Ms. Smith’s testimony supports all of these conclusions. Under the Ministry’s argument, the Seguins would be in breach of FCHA4 for failing to follow the required dispute resolution process and face potential legal repercussions for that failure. The fact that impossibility might be a defence to any claim of breach does not mean that the parties did not contemplate inclusion of necessary aspects of policies as implied terms.

[70]        On October 29, 2009[24], the Ministry sent out a news release which stated that an earlier edition of the FFH set out and defined the “rights and entitlements of Foster Parents”. The FFH is a more current version of that same document. There is nothing to suggest the same comments do not apply to it. That news release does not suggest that the rights and entitlements are abstract and of no real consequence. Quite the opposite. It is evidence of the surrounding circumstances when FCHA4 was made, and evidence that the Ministry viewed the FFH policy document as integral to and part of the FCHA. The Seguins also held that view.

[71]        By necessary implication, to make the contract effective, at the very least those policies or “rights” regarding dispute resolution were included as terms of the contract. I am not deciding that the policies or rights give rise to an independent cause of action. A failure to comply with the law does not create an independent cause of action for breach of statutory duty[25], and similarly, neither does breach of policy[26]. But that does preclude the policies being part of the contract or a failure to follow them amounting to negligence.

[72]        The Resource Work Policies also gave direction as to how contracts were to be terminated. The Ministry argued the RWP guided FCHA4. As I found, they also provided for agreements outside an FCHA, made it clear that written reasons for termination were to be given to a caregiver, as well as information about how to dispute that decision. In providing written notice of termination, the RWP directs that the written reasons and notice are to be given to the caregiver within seven business days, including “the appropriate notice period plus 10 business days” where the notice period starts from the date the written decision is mailed to the caregiver[27]. In other words, that policy set out what the Ministry considered would constitute proper notice when it terminated a FCHA as at March 1, 2017. That remained so in July 2018. As set out previously, section 12.01 stated that “notice to be given under this agreement, to be effective, must be in writing and delivered personally, by courier or prepaid registered mail”. The 10 business days were for the purpose of ensuring that in fact 60 days notice was accomplished if mailed. It would take time to provide reasons in writing and mail them. Those policies were also part of the expectation of the parties at the time of entering FCHA4 and were part of it.

[73]        Damages for breach of contract should as far as possible put the aggrieved party in the same position as if the contract had been properly performed. Had the RWP termination policy been followed, the FCHA would have ended on, and included[28] October 9, 2018, 70 days after July 31, 2018. The failure to provide reasons for termination of the contract and removal of the foster child resulted in the Seguins having to incur costs to pursue litigation to resolve their dispute, but there are no other financial damages that flow directly from that breach. Those costs are filing and service fees totalling $176.00. The Seguins claim that there should also be moral damages and punitive or aggravated damages as a result of the Ministry’s failures. I will deal with those arguments later.

[74]        To establish that the Ministry was negligent, the Seguins must show that they were owed a duty of care; that the Ministry breached that duty; and that the Seguins suffered damages from that breach. Policies may be evidence of a standard of conduct.

[75]        The contract required the Seguins to follow the FFH standards of care. There was clearly a close relationship between the Ministry and the Seguins, something far beyond the Seguins being general members of the public. There was a specific relationship between the parties and the Ministry was tasked with ensuring that the Seguins followed standards of care to ensure safety of the child in their care, and the public. That is sufficient to establish a proximate relationship[29]. To permit the Seguins to resolve disputes, the Ministry had to provide them with reasons for its decision and information about how to dispute that decision in accordance with its own policies. Those policies were reasonable and if followed, would have allowed the Seguins to gauge whether the Ministry had acted reasonably and in good faith. Without reasons, they were in the dark as to why the child they had cared for very well for years was removed and why their contract was terminated. They were unable to follow the dispute resolution process established by the Ministry. They were not told of the process for claiming damage to their home and property. The Ministry owed the Seguins a duty of care and they breached that duty. The damages are the same as for breach of contract.

[76]        The Seguins claimed damages as a result of an incident with the child on June 29, 2018. At trial, the Ministry conceded that it was liable to pay for the physical damages as set out in the evidence. Although argument was made that the Seguins did not follow the proper process, the evidence is clear that the Ministry failed to give them the information about or ability to follow that process, just as it failed to properly inform them of reasons for termination so they could pursue that formal dispute resolution process. The Seguins were not at fault – the Ministry was. The amounts were not disputed and accordingly, I leave that to the parties to settle. If the parties cannot agree on the damages payable by the Ministry, they may bring that issue before me for determination.

[77]        The Seguins also claimed compensation for pain and suffering. In effect, the Seguins argued that the Ministry should be liable for JC’s assault of Mr. Seguin. I agree with the Ministry that such loss must have a legal foundation and the Seguins must establish it. The Ministry is not vicariously liable for acts of foster parents toward a child in their care[30], which begs the question of how they could be liable. There is no general rule that parents are liable for the torts of their children simply because they are parents. Parents may only be liable if they, not their child, were in some way negligent[31]. The same applies to public authorities[32]. There is no legal basis for, nor any evidence to support, that part of the claim. It is denied.

[78]        The Seguins paid $550 for the child to go to camp in July 2018. The child went. Although JC was not directly in the Seguins’ care when he went to camp, the contract was terminated July 31, 2018, so the Seguins were obliged to pay fees as required by the contract. The Ministry relied on the RWP in arguing that camp fees were to be paid from the money paid to the Seguins. If that document was part of the contract, as argued, that would bind the Seguins. I agree with that position, but that is not the only basis for concluding the Seguins were obliged to pay. Schedule A, point 6 of FCHA4 states the Seguins were to pay for JC’s care, including his activities. Attending a camp is an activity within the parameters of point 6. That was also part of the oral agreement between the parties. The Seguins were obliged to pay the camp fees.

[79]        After the Ministry told the Seguins on July 12 that their contract was terminated, they were also told they would be repaid the camp fees. The promise of repayment was complicated. It was predicated on the expected termination of FCHA4 as of July 12, so that the Seguins would not be paid for his care when he went to camp. Mr. Crosthwaite’s approval of the Ministry paying camp fees directly was on the basis that the fees paid by the Seguins were returned to them before July 19, 2018[33]. Since the Seguins were still under contract and did not have their camp fees refunded when JC went to camp, neither of the bases for the Ministry paying for camp existed. Paying the Seguins again would be a double payment and contrary to the contract, including policy. This part of their claim is denied.

[80]        The basis of this claim is not entirely clear. It seems to relate to the Ministry’s failure to pay for a relief worker during the Seguins’ holiday. They seek to have all of their payments for relief care paid during the course of FCHA4 returned to them. In effect, it is similar to relying on the express terms of FCHA4 to say they overpaid for relief by $2,726.70. However, they were paid under the contract for all of July and did not have to pay for any relief worker during their holiday. This part of their claim is denied.

[81]        The parties negotiated a reduction in the monthly fee paid to the Seguins for a youth worker. In the previous contract it had been $960/month. In FCHA4, it was $460/month. The Seguins claim they should be given that $500 difference. I cannot conceive of any basis for doing so. They knew that was the proposed fee. They agreed to it. There was no breach of that agreement. There is no basis for that claim and it is denied.

[82]        This part of the Seguins’ claim was withdrawn by the end of the trial, which was appropriate given the Ministry’s concession that it was obliged to pay the Seguins until JC’s personal effects were removed from their home.

[83]        Punitive damages are only awarded in exceptional cases. The defendant’s conduct must be so malicious or reprehensible that it is deserving of punishment. The object of such an award is not to compensate the injured party, but to denounce the conduct and deter the perpetrator and others from behaving in a similar fashion[34].

[84]        The Ministry employee who dealt directly with the Seguins, Ms. Smith, was sympathetic to them and did as much as she could to salvage the situation. She was obliged to follow orders from her superiors and terminate their contract. Unfortunately, the person who ultimately made the contractual decisions, Mr. Crosthwaite, did not testify. Accordingly, there was no direct evidence from the actual decision maker as to the basis for the decision to terminate the contract.

[85]        At least one other option was obviously available that would have maintained the best care for the child - the Ministry paying for the holiday relief and then bringing a claim to recover the funds from the Seguins, if no agreement could be reached. However, that possibility does not necessarily lead to the conclusion that the Ministry’s conduct was reprehensible and merited condemnation. The language used by Ministry employees was not inflammatory; in fact, the Ministry recognized the obviously excellent work done by the Seguins and told them so.

[86]        On all the evidence I cannot conclude that the decision to end FCHA4 was malicious, even though it seems to have been contemplated as of June 29, 2018. There is no basis to conclude that this case is exceptional or that punitive damages should be awarded.

[87]        Damages for mental distress can be compensable in contract as a result of the manner of dismissal or termination of a contract. The normal distress that comes from termination of an employment contract is not compensable. Such damages are only available under a contract where the employer, during the course of dismissal, acts unfairly or in bad faith. The latter can occur where the employer is untruthful, misleading or unduly insensitive[35]. The correlative duties to act fairly and in good faith arise from the nature of an employment contract, because doing so is an underlying basis for entering into the contract. Aggravated damages for other malicious conduct in ending an agreement do not flow from the contract itself; the acts complained of must give rise to their own cause of action, usually in tort[36].

[88]        The Seguins claim is twofold: it is based on how their contract was terminated in light of the Ministry’s knowledge of their planned vacation; and the necessity of providing reasons for termination and removal of JC. They say that both led to increased anxiety and distress. They also argue that the Ministry acted maliciously and defamed them by alleging they breached FCHA4.

[89]        The Director argues there was no independent cause of action for aggravated damages and that the parties did not contemplate psychological distress as part of their agreement.

[90]        There was no defamation, fraud or oppression. Although Ms. Smith testified that emails setting out the substance of the Seguins’ positions during late June and early July were not always accurate, that does not amount to fraud. There was no evidence of defamation or any acts that would amount to oppression.

[91]        The Seguins also say the Ministry’s failure to provide reasons, despite various requests for them, caused them to have to litigate and created extra stress. The question is whether that failure could be an independent cause of action, namely negligence. I have already found that the Ministry was bound by policies and were negligent in their duty to follow them. That gives rise to an independent cause of action. That failure left the Seguins wondering if they had done something wrong, if they could ever be foster parents again, and unable to pursue any appeal or other dispute resolution process. In effect, that failure compelled them to resort to litigation. They were unsophisticated and unrepresented. The Director was far more experienced in litigation and had counsel. It was a far more formal dispute resolution process that would cause increased stress and anxiety in anyone, and did so in the Seguins.

[92]        Similar to the mental distress caused by a failure to pay benefits in Fidler[37], the distress caused by the failure to provide reasons for the Ministry’s actions and decisions was reasonably foreseeable. The express requirement for the Seguins to follow the procedure set out in policies is demonstrative of the fact that the parties knew other dispute resolution, litigation, was more stressful, especially where it would be expected that the Ministry would have a lawyer and the Seguins would not. That mental distress and anxiety is compensable. There were no submissions as to quantum. The parties are at liberty to return to court on that issue if they are unable to agree.

[93]        The Seguins point to the duty of the Ministry and its employees to act fairly and in good faith and argue they did not, which should lead to aggravated damages. The Ministry recognized a duty to act fairly and in good faith in employment relationships, but argued it would be wrong to import those concepts from employment law into the realm of independent contractors. FCHA4 stated that the Seguins were independent contractors. The Ministry’s argument effectively means that the Ministry had no obligation to act in good faith in their dealings with foster parents.

[94]        I disagree. First, good faith contractual performance is a general organizing principle of the common law. It underpins and informs the various rules that apply when the common law creates obligations of good faith contractual performance. That principle is manifested in employee-like relationships[38].

[95]        Second, just because a contract states that a person is an independent contractor does not mean that in law they are[39]. The fact that the relationship between a foster parent and the Ministry is not close enough to make the Ministry vicariously responsible for the wrongful acts of foster parents[40] does not mean that foster parents are independent contractors. The applicable legal tests and considerations are different[41]. An employee has a direct relationship with the employer. An independent contractor is in business on their own account that has been hired to perform specific services, and acts at arm’s length. In between, there is a spectrum.

[96]        In this case the Seguins had a lengthy and exclusive relationship with the Ministry; they had no opportunity for profit from their work; they dealt exclusively with the Ministry; the relationship with the Ministry was closer than most foster parents because of JC’s needs and care plan (for example, as reflected in their increased remuneration above Level 3 caregivers); and they did not assume any financial risk. The only potential risk was that the contract could be terminated without cause. The required notice was about 1/6 of the contract’s term. I find that the Seguins would fall in the middle of the spectrum between an employee and independent contractor, which is sufficient to oblige the Ministry to act in accordance with the principles of fairness and good faith[42].

[97]        Third, one of the policies in the FFH was that foster parents had the right to be treated with consideration, trust, honesty, respect, acceptance and fairness “in all circumstances by Ministry staff”[43]. The FFH was part of contract negotiations. To find, as argued by the Ministry, that despite that policy, the Ministry did not owe foster parents those obligations, would in effect mean that the Ministry was negotiating its foster care agreements based on a misrepresentation, perhaps amounting to fraudulent behaviour. That is not the case – the parties viewed that policy as part of the contractual obligations.

[98]        Mrs. Seguin testified that in a telephone conversation on July 12, Ms. Smith told her that she either had to quit or the contract would be terminated. The Seguins did not quit and offered to try to come to an agreement. Mrs. Seguin then received an email from Ms. Smith stating their contract was terminated. Mrs. Seguin testified that she called several times to speak with Ms. Johnson or her holiday replacement to try to come to an agreement, but she never received a response. Ms. Smith confirmed that the Seguins were not given the opportunity to talk to any supervising employees of the Ministry to try to resolve the dispute. They could only talk to Ms. Smith, who had no decision-making authority.

[99]        I found that the Ministry had agreed to roll over the holiday-relief understanding to FCHA4, or failed to put the Seguins on notice that the arrangement was no longer valid before the Seguins entered FCHA4, and almost a year later repudiated that agreement on the day the Seguins started their holiday. That created huge time pressures when those responsible for decision making, and therefore effectively negotiating, were away on holiday or failed to adequately respond, and in failing to follow obligations to put reasons for termination in writing, which precluded any opportunity to resolve that disagreement. No real explanation was given for that failure. That was unfair. The Ministry did not act in good faith or reasonably.

[100]     The Ministry’s failures created stress and anxiety far beyond the norm. The holiday piece was central to the Seguins’ acceptance of the contract because it directly related to their mental state. That is what holidays are all about. Those moral damages must be assessed on the harm caused.

[101]     The Seguins testified that the lack of expected payments – termination without notice – caused financial hardship, and that created extra stress over and above the usual stress associated with loss of a position. They have not yet been paid the money owed to them despite the Ministry admitting, at least by the time they filed their Amended Reply in August 2019, that they should have been paid at least until September 12. No explanation was given by the Ministry for not having paid the Seguins what the Ministry admitted they were due. In other words, the Ministry’s failure has contributed to the Seguins’ ongoing financial hardship and the associated increased stress. That failure to provide payment and early termination without cause also caused significant emotional distress to Mr. Seguin. He testified that he missed his brother’s funeral that had been delayed to accommodate their holidays and obligations to JC.

[102]     Ms. Smith testified that the Ministry only started to look for relief caregivers for the July holiday on June 28, 2018, the day before the scheduled holiday started, despite the fact the Ministry had known of that holiday plan for a long time. That had been the Seguins’ practice for the prior two years, and in May 2018, they had told Ms. Smith the actual dates they would be away – from July 3-18. The Seguins’ concern for JC and the scramble to find alternate care also caused the Seguins stress and anxiety, over and above what they may have felt if notice had been given and adequate planning made. They clearly cared about JC and his wellbeing.

[103]     No submissions were made regarding quantum of aggravated damages. The parties are at liberty to return before me on this issue if they are unable to agree on the amount payable by the Ministry.