CITATION: Versailles Convention Centre v. Kaur, 2013 ONSC 6510
COURT FILE NO.: DC-12-0000042-0000
DATE: 20131018
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
2074874 ONTARIO INC. c.o.b. VERSAILLES CONVENTION CENTRE
Arjun Vishwanth Nrupathunga Counsel, for the appellant (Plaintiff),
appellant (Plaintiff)
- and -
NAVPREET KAUR
Self-represented
respondent (Defendant)
HEARD: October 11, 2013
REASONS FOR JUDGMENT
[On appeal from the judgment of Deputy Judge E. Nadler dated May 14, 2012]
Seppi J.
[1] This is an appeal by the plaintiff (called “appellant” or “Versailles”) from the decision of Deputy Judge E. Nadler dated May 14, 2012, following a trial in the Brampton Small Claims Court.
[2] The trial judge dismissed Versailles’ claim of $10,000 from the defendant (“respondent”) Navpreet Kaur for breach of contract on a booking of the appellant’s convention hall facility in Brampton. He found the appellant’s witness not credible. He accepted the evidence of the respondent that there was a tentative booking, which by agreement with the appellant’s representative was cancelled, with the possibility of a new booking being made by the respondent in the following year. As the parties were found to have agreed to terminate the original booking contract, the respondent was released from any obligation in that respect.
[3] The appellant appeals on grounds the trial judge “erred in law by incorrectly shifting the burden of proof to the appellant with regard to proof of whether there was a mutual agreement between the parties to cancel the contract, and produce the witness called, when it was the respondent who unilaterally alleged and affirmed there was a mutual agreement between the parties to cancel the contract.”
[4] The appellant submits the trial judge reversed the onus of proof with respect to the agreement to cancel the contract.
[5] The second ground of the appeal is that the trial judge “erred in law in his approach to assessment of whether the stipulated cancellation policy clause was unreasonable and hence unenforceable.”
Agreement to Cancel
[6] On this ground the trial judge’s conclusion is as follows at para. 8:
I accept that the defendant dealt with “Gurpreet” and that on her first visit to the plaintiff’s premises she made tentative arrangements for a booking and paid her deposit, and never dealt with Mr. Taggar. Secondly I accept her evidence that she re-attended at the plaintiff’s premises sometime later, and made an agreement with Gurpreet to cancel the proposed October booking and agreed to postpone the booking to a later date next year. Although that booking never took place, the defendant has acknowledged that the plaintiff is entitled to keep her deposit on that account. Accordingly I am satisfied that the parties agreed to terminate the contract or the booking for October 25, 2008 and therefore the defendant is released from any obligation with respect thereto.
[7] The trial judge made the correct determination with respect to the lack of credibility of the appellant’s witness, Onkar Taggar. His evidence, as reviewed in the transcript, is replete with inconsistencies and outright lies. For example, in cross-examination he initially claims he did not hold any corporate functions on October 25th. His first answer is “not at all,” when questioned in connection with the issue of damages as a result of the cancellation. Later on, it is apparent from the Liquor Permit obtained that there was in fact a corporate function on that day. Faced with the documentation obtained by the respondent’s representative, Mr. Taggar claims he has no idea what the permit is for, despite the fact that he is one of the owners of the hall and is its only witness.
[8] Contrary to his claims, Mr. Taggar was clearly not the person who dealt with the respondent at the booking. Mr. Taggar was not a truthful witness and the trial judge correctly found that to be the case. Where the evidence of Mr. Taggar differed with that of Ms. Kaur he justifiably accepted the evidence of Ms. Kaur, whom he found to be truthful. The evidence of the witness Ms. Kaur was clear and unequivocal throughout, despite the cross-examination challenges faced by her with respect to the arrangements.
[9] The judge’s findings of fact are unassailable. He correctly accepted the evidence of the respondent regarding her meeting and discussions with Gurpreet at the appellant’s hall. The number of attendants and the cost per plate were filled in by someone in the absence of the respondent between her first and second attendance at the hall. The second time she attended at the hall she made it clear she was not proceeding with the booking on October 25, 2009, which was the date that had been filled in by the appellant. As Gurpreet had explained to her, she understood some date had to be filled in for the owner to accept a booking. She had given her $1,000 deposit on her credit card. The parties agreed to cancel the original booking on terms that she would have the right to book the hall at a later date with the same deposit. Her writing on the bottom of the cancelled contract confirms this agreement. The two black lines drawn through the contract by Gurpreet in the presence of the respondent were supporting evidence to the satisfaction of the trial judge of the contract being cancelled. On the evidence he found there was an agreement between the appellant and the respondent to cancel the contract.
[10] The appellant’s submission the trial judge erred in law by reversing the burden of proof with respect to the agreement to cancel the contract does not succeed. It is clear from the reasons of the trial judge that his decision was based on evidence which was presented by the respondent concerning this contract, and on the basis of the contract document itself. The two lines drawn through it were relevant and persuasive evidence in the context of all the evidence that there was an agreement to cancel. The trial judges’ comment that the appellant did not see fit to call Gurpreet as its witness in the context of his reasons as a whole does was not indicate he found there was an onus on the part of the appellant to prove the agreement to cancel. The trial judge was entitled to draw the inference that a witness who had worked for the appellant, but was not called, would not have been supportive of the appellant’s position.
[11] This first ground of appeal therefore fails.
Enforceability of Cancellation Clause
[12] The quantum of the appellant’s claim for damages is based on blanks in the contract having been filled in to stipulate 500 guests at $50.00 a plate. The respondent’s evidence, which the trial judge accepted, was that these numbers were not agreed to and were not filled in as part of the booking. The numbers on which the appellant claims damages of 50% of the total booking were written in the contract in her absence. The handwritten insertions are not initialled. The respondent’s evidence is also supported by the different coloured ink, for which the appellant’s explanation was not accepted by the trial judge.
[13] In those circumstances, he correctly found that the total amount for damages is not defined, as it was not determined at the time the original contract was signed. The appellant never committed to the final number of guests which was a number simply filled in in her absence.
[14] In addition, upon an examination of the financial records produced by the appellant, the trial judge found the basis on which the appellant was calculating damages was not a genuine pre-estimate of damages it might suffer as a result of a breach. He correctly found it was “more in the nature of a penalty cause, which the law recognizes as unenforceable”.
[15] The trial judge granted the appellant numerous indulgences in its obligation to prove the damages it was claiming. The proceedings were adjourned in order that the appellant be given the opportunity to bring documentation to substantiate its claims. The limited documentation, which was presented by the appellant, did not satisfy the trial judge as proof of damages claimed. In effect, he found the financial statements for the year ending December 31, 2008, as presented, supported the finding of 10% of the annual net income being claimed for a cancellation of a single event. On the evidence, the amount was arbitrary and excessive and he correctly found a purported loss of $11,500 is unreasonable, and not a genuine pre-estimate of the appellant’s alleged damages.
[16] The second ground of appeal also fails.
Result
[17] This appeal is therefore dismissed. As the respondent indicated she is not claiming costs, there is no order for costs.
Seppi J.
Released: October 18, 2013
CITATION: Versailles Convention Centre v. Kaur, 2013 ONSC 6510
COURT FILE NO.: DC-12-0000042-0000
DATE: 20131018
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
2074874 ONTARIO INC. c.o.b. VERSAILLES CONVENTION CENTRE
- and –
NAVPREET KAUR
REASONS FOR JUDGMENT
Seppi J.
Released: October 18, 2013