Sajjawiso v. Souphilavong, 2021 ONSC 4945

COURT FILE NO.: CV-15-65412

DATE: July 16, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

AMNUAYPORN SAJJAWISO and MATAKAEW NATHAWAK

Plaintiffs

– and –

LADDAVONE SOUPHILAVONG, BOUNNOM SOUPHILAVONG and 8297959 CANADA INC., operating as Thai Flame Restaurant

Defendants

Bruce Simpson for the plaintiffs

Chris Rutherford for the defendants

HEARD: May 10, 11, 12, 13, 14 and July 5, 6 and 7, 2021

REASONS FOR JUDGMENT

Justice Sally Gomery

Overview

1In 2010, Laddavone and Bounnom Souphilavong agreed to help their friends Amnuayporn Sajjawiso and her husband Matakaew Nathawak set up a Thai restaurant, the Thai Flame, in Ottawa. The Souphilavongs would find premises and sponsor Ms. Sajjawiso so that she could obtain a visa allowing her to move from Thailand to Canada to work as a cook. She and Mr. Matakaew would cover some or all start-up costs and would operate the restaurant when they arrived in Canada.

2The project got off to a promising start. In late 2010, Mrs. Souphilavong signed a five-year commercial lease for the restaurant’s premises, hired an architect to design the layout of a kitchen and dining room, and incorporated the defendant numbered company to operate the business. In early 2011, the plaintiffs sent the defendants some money and purchased restaurant furniture, equipment and decorations, which they shipped to Canada.

3The parties had underestimated the costs of opening a restaurant, however. When Mrs. Souphilavong got a building permit and renovations on the restaurant premises got underway in 2012, she ran out of money. She repeatedly asked the plaintiffs for further funds but they did not respond. Mrs. Souphilavong, who was personally liable for the rent payable under the lease, borrowed against lines of credit and her mortgage to complete the renovations. When the Thai Flame restaurant opened in Ottawa in October 2012, Mrs. Souphilavong and her sister worked in the kitchen and Mr. Souphilavong helped in the dining room. With the defendants’ assistance, the plaintiffs eventually got visas to came to Canada in 2013. They worked at the Thai Flame for only a few months, however, before Mrs. Souphilavong fired them without notice on May 31, 2014.

4The plaintiffs initially sought a half share of the restaurant in this action. They abandoned that claim at trial. They instead seek the return of approximately $30,000 in cash they allegedly advanced to the defendants for the restaurant’s start-up costs, and a further $30,000 to compensate them for the purchase and shipment of goods from Thailand.¹ In a separate Small Claims action heard concurrently with this action, Ms. Sajjawiso also seeks approximately $28,000 for unpaid wages, vacation pay and damages for wrongful termination in connection with her employment at Thai Flame between September 2013 and May 31, 2014. Mr. Matakaew is not advancing any claim in connection with his work at the restaurant.

5The defendants deny that they owe the plaintiffs any compensation for their investment in the restaurant. In the alternative, they say that any amounts owed by Mrs. Souphilavong or the defendant company are offset by money loaned to the plaintiffs and damages incurred as a result of the plaintiffs’ actions. At the end of trial, the defendant company acknowledged that it owes Ms. Sajjawiso $1,200 for unpaid wages, but the defence denies all other claims in the Small Claims action. The defendant company counterclaims for $8,193, the amount that the plaintiffs allegedly stole from the restaurant when they worked there.

6The outcome of the case depends on the answers to the following questions:

(1) Are the plaintiffs entitled to recover damages for breach of contract or unjust enrichment? If so, how much?

(2) Are the plaintiffs entitled to recover the entire amount of their investment?

(3) Is Ms. Sajjawiso owed any unpaid wages, vacation pay or damages for wrongful termination? If so, how much is owed and by whom?

(4) Are the defendants entitled to recover $8,193 counterclaimed from the plaintiffs?

7For the reasons set out below, I conclude that the numbered company was unjustly enriched by $28,448 in money and goods supplied by the plaintiffs in 2011 and used in the restaurant. This amount is however offset by $18,321 in loans made by Mrs. Souphilavong to the plaintiffs and by expenses she incurred due to the plaintiffs’ actions. This reduces the plaintiffs’ recovery for unjust enrichment to $10,127. Ms. Sajjawiso is entitled to recover a total of $2,400 from the numbered company for unpaid wages and damages equivalent to two weeks’ notice, but the company is entitled to the return of $3,569 held by Mr. Matakaew when his employment was terminated. All claims against Mr. Souphilavong are dismissed.

The events giving rise to this lawsuit

Preliminary comments on the evidence

8The parties agree, for the most part, on a basic chronology of events. They disagree on some critical points, such as the nature of the agreement they reached in 2010; the amount of money advanced by the plaintiffs in early 2011; whether money they received in late 2013 and early 2014 was a loan or payment of money owed; the extent to which the items shipped from Thailand to Canada were used in the restaurant; and the plaintiffs’ role in the business between mid-March and the end of May 2014.

9Resolving these factual issues is challenging because the parties did not enter into any written agreement with respect to their plan to open and operate the Thai Flame restaurant. Ms. Sajjawiso signed an employment contract with the numbered company in early 2013, but it does not contain any terms addressing the plaintiffs’ investment in the restaurant. There are records with respect to wire transfers and shipping arrangements. Ms. Sajjawiso and Mrs. Souphilavong paid for many goods and services with cash, however, and the record of these transactions is incomplete and sometimes unreliable. Mr. Matakaew had no written contract with the defendants, and his exact role in the business is unclear. The parties exchanged emails and letters, but they are generally short and sometimes difficult to understand.

10As a result, to resolve issues in contention, I have had to rely on the parties’ testimony at trial. Unfortunately, I find that none of them gave an entirely reliable account.

11Mr. Matakaew’s testimony was particularly troublesome. He was obliged to recant some of his statements at trial. For example, he repeatedly insisted that the defendants never loaned him any money, until he was confronted in cross-examination with an email he wrote to Mr. Souphilavong asking him not to tell Ms. Sajjawiso about USD $800 that he had borrowed. At other times, he unreasonably refused to make admissions even in the face of reliable evidence that unequivocally contradicted his testimony. For example, he denied that he received a payment of $750 from the restaurant on March 18, 2014, even when shown a cheque for that amount made out to him from the restaurant’s account, the back of which indicated that it had been cashed.

12Mr. Matakaew was frequently evasive. He refused to answer straightforward questions, or perhaps was simply unable to answer them. He did not explain, for example, what exactly he was doing all day at the restaurant in the period from mid-March to the end of May 2014. He acknowledged that his ability to interact with English-speaking customers was limited, and he was legally prohibited from serving alcohol. He did not have access to the restaurant’s financials or its bank account, so he had a limited role in its administration. Despite this, he adamantly refused to admit that he did any work in the kitchen.

13I am also forced to reject some of Ms. Sajjawiso’s evidence as unreliable. For example, she presented a stack of receipts to prove that she had made over $30,000 in purchases in Thailand for the restaurant in late 2010 and early 2011. In cross-examination, she admitted that some of these records were not in fact receipts but her own handwritten notes about what she later recalled buying. She also admitted that some of the items purchased were for her personal use. These admissions significantly undermined my confidence in her testimony about the value of the goods she purchased for the restaurant and what became of them.

14Like Mr. Matakaew, Ms. Sajjawiso sometimes refused to make admissions in the face of incontrovertible evidence. When asked about a cheque for $2,000 from Mrs. Souphilavong’s company on December 14, 2013, for instance, she at first said she could not recall why these funds were advanced and then expressed doubt that she received the cheque, even in the face of banking records showing that it was cashed. At another point, she insisted that the parties did not agree to open a restaurant until October or November 2010. She continued to insist on this even after being shown an email to her from Mrs. Souphilavong in September 2010 that mentioned the address of premises she proposed to lease for the restaurant. Ms. Sajjawiso’s refusal to concede these and other points was unreasonable, and this significantly undermined her credibility.

15Mrs. Souphilavong’s testimony sometimes lacked credibility as well. Her account of the breakdown of the parties’ relationship beginning in mid-2012 was consistent with contemporaneous documents. She was, however, prone to dramatic over-statements, such as a declaration that the plaintiffs had not contributed even a penny to the restaurant, which was clearly untrue. Mrs. Souphilavong evidently feels that the plaintiffs let her down and resents their assumption that they could take over the business without any additional payment after they arrived in Canada in 2013. I find that she over-stated the amount of money she invested in the restaurant, just as she initially failed to acknowledge the plaintiffs’ contribution of over $22,000 in cash transfers in early 2011. She also failed to adequately explain cheques she gave to Mr. Matakaew in March, April and May 2014. Some of her assertions must therefore be treated with caution.

16Finally, I found Mr. Souphilavong’s testimony generally reliable but not without flaws. He provided a detailed and credible account of the discussions between the parties in 2009-10 and the steps he had to take following the arrival of the shipment of restaurant supplies from Thailand. His story about some tables spontaneously cracking was, by contrast, implausible and uncorroborated. While testifying in chief, Mr. Souphilavong seemed knowledgeable about the parties’ history and the restaurant business, but in cross-examination sometimes demurred, saying that the Thai Flame was his wife’s business. My impression was that he downplayed his knowledge in cross-examination to avoid answering questions.

17Despite the weaknesses in the Souphilavongs’ evidence, overall I find it is more credible than the plaintiffs’ evidence. I rely on contemporaneous records where possible, but generally prefer the defendants’ account where it is inconsistent with the plaintiffs’ testimony.

The parties’ plans for the Thai Flame restaurant

18The plaintiffs are Thai citizens. The defendants are originally from Laos but have lived in Canada for many years.

19Prior to 2000, Ms. Sajjawiso was the head cook for three to four years at a restaurant in Auckland, New Zealand also called “Thai Flame”. From 2004 to 2009, she lived in Canada and worked as a chef in a restaurant in Kanata, a suburb of Ottawa. Mr. Matakaew joined her in Canada for five or six months in 2009, on a travel visa. He initially denied that he worked while he was in Canada, but then admitted that he was employed by a company called Signature Food. In 2009, Mrs. Souphilavong was employed assembling circuit boards and Mr. Souphilavong was working for General Dynamics Canada as an assembler. He had previously been involved in the operation of a Thai restaurant but sold his interest in 2004. The defendants also had a company, Orchid Comfort Cleaning Services.

20According to Mrs. Souphilavong, the parties were introduced by mutual friends in 2008 or 2009. After the plaintiffs returned to Thailand, the parties kept in touch. On at least one occasion, the Souphilavongs spent several days at the plaintiffs’ house in Bangkok, on their way to visiting family in Laos. They began discussing the possibility of opening a restaurant in Ottawa. The parties disagree about who first proposed the idea. Nothing turns on this.

21As a result of these discussion, Mrs. Souphilavong eventually undertook to find premises in Ottawa and arrange for them to be retrofitted for a restaurant. She also agreed to assist Ms. Sajjawiso in getting a visa so she could return to Canada. When the plaintiffs arrived in Canada, they would take over the operation of the restaurant.

22According to Ms. Sajjawiso, the parties estimated that the start-up costs for the restaurant would not amount to more than 1.2 million Thai Baht (about $47,000). During her testimony, she equivocated about whether this amount was supposed to be advanced solely by the plaintiffs. She maintained, however, that the parties agreed that the plaintiffs would be entitled to 90 to 95% of the profits from the restaurant. Ms. Souphilavong did not mention how much the parties anticipated it would cost to start the restaurant. She agreed, however, that she expected the plaintiffs to cover the greater share and that they would have a right to most, if not all, of the profits.

23Whether or not I accept Ms. Sajjawiso’s evidence about the initial budget for the restaurant project, it is clear that neither the plaintiffs nor the defendants prepared a business plan, nor did they anticipate what they would do if start-up costs for the restaurant exceeded the parties’ expectations.

Steps taken by the parties from mid- 2010 to mid-2012 to advance the restaurant project

24On September 20, 2010, Mrs. Souphilavong sent an email to Mr. Matakaew’s email account. The subject line was “3710 Richmond Road”, the premises that she proposed to rent for the restaurant. The email was addressed to both defendants and asked them to “check out” the information she was sending. Ten days later, Mrs. Souphilavong signed a five-year lease for premises at 104-3710 Richmond Road. It provided that she could take possession of the space as of February 1, 2011 and would pay rent of $1,769 per month or $21,229 during the first year. A schedule attached to the lease provided that she would have the right to add Mr. Matakaew and his relative, Jantana Noidith, as parties to the lease, and acknowledged that they “are partners in the restaurant”.

25Mrs. Souphilavong testified that she and Ms. Sajjawiso talked frequently by phone. This makes sense since the plaintiffs were investing significant savings into the project. According to Mrs. Souphilavong, after the plaintiffs received the September 20 email, they agreed to the proposed location based on an internet search they had done and asked her to add Mr. Matakaew and Ms. Noidith’s names to the lease. She testified that she followed up on this request but that the landlord refused on the basis that these individuals were not resident in Canada. I accept this evidence, as it explains the schedule acknowledging that Mr. Matakaew and Ms. Noidith were partners in the restaurant and reserving the tenant’s right to add them to the lease at a later date.

26Around this same time, Mrs. Souphilavong applied for and was granted a business license to operate Thai Flame as a sole proprietor. She also hired a lawyer to assist in getting a visa for Ms. Sajjawiso.

27For their part, the plaintiffs demonstrated their commitment to the project by sending money to Canada to pay for the restaurant start-up costs in early 2011. The defendants admit that they received three wire transfers of money totalling $22,648 from the plaintiffs on January 28, 2011 ($6,335), February 3, 2011 ($6,328) and April 28, 2011 ($9,985). The plaintiffs say that they advanced a further USD $6,625 to the defendants on May 1, 2011, a claim I will assess later in these reasons. They also purchased restaurant furniture, equipment and décor in late 2010 and shipped it to Canada on March 1, 2011. According to them, these items cost in excess of $30,000. Some of these items were undoubtedly used by the defendants in the Thai Flame restaurant when it opened a year and a half later. There were other items that were not used. I will assess the evidence on the actual value of the items when I consider whether the plaintiffs are entitled to claim compensation for these expenses.

28The parties continued to work together in 2011 on getting the leased premises retrofitted for the restaurant and getting a visa for Ms. Sajjawiso. In 2011, they exchanged emails about the need to have a new site plan prepared, delays in getting a building permit and steps that they would need to take to permit the plaintiffs to come to Canada. This correspondence again supports Mrs. Souphilavong’s evidence that the plaintiffs were informed of the project’s progress and knew that the defendants had been denied a bank loan for the start-up costs. In an email sent on December 6, 2011, the plaintiffs referred to information that Mrs. Souphilavong had sent about “bank matters” and asked: “Is it possible to find someone to become a Partner?” I infer from this that the plaintiffs recognized that more funding was needed for the restaurant.

29Construction on the restaurant finally got underway in earnest after a building permit was obtained in February 2012. I find that the defendants continued to tell the plaintiffs about the status of the project. In May 2012, for example, Mr. Souphilavong sent an email to the defendants mentioning that an exhaust hood had been installed and that the balance of the electrical work would be done shortly. The defendants also let the plaintiffs know that the restaurant’s civic address had been changed by the City of Ottawa to 7290 Robertson Road.

Setbacks in 2012

30As of June 2012, the restaurant project faced two major roadblocks: the parties had run out of money, and Ms. Sajjawiso was unable to get a visa to come to Canada.

31Ms. Sajjawiso’s application for a temporary visa had been denied in August 2011, because she failed to persuade the Canadian immigration authorities that she would leave when it expired. Two applications by Mrs. Souphilavong for authorization to hire a foreign worker (Ms. Sajjawiso) to work as a cook at the Thai Flame were denied in June and October 2012. In her evidence, Mrs. Souphilavong suggested that the applications were denied because the restaurant had not yet opened. This is not supported by the letters from Services Canada refusing the applications. They state that the applicant did not demonstrate sufficient efforts to hire Canadians or sufficient compliance with employment laws.

32The bigger problem, however, was money. Emails sent by Mrs. Souphilavong, beginning in June 2012, support her testimony that she repeatedly asked the plaintiffs for further funding, but that the plaintiffs ignored these requests.

33On June 11, Mrs. Souphilavong sent the following email to the plaintiffs: ²

Hi Guys what is next I ran out of money we have to hold on for now I can not keep going

34This was followed on June 25, 2012 with this message:

Hi Guys what is going on we can not contacted you guys by phone by email did not hear anything from you guys what do you want us to do next? If we keep going we have to do we ran out money we have to put on hold.

35In response, Mr. Matakaew sent a terse, non-responsive email a week later saying: “How r u today? I work in Bangkok and lek go to Chumporn. See you soon”.³ Mrs. Souphilavong replied by asking Ms. Sajjawiso to call her. This apparently had no effect as Mrs. Souphilavong wrote a further email on July 12, 2012 that read:

Hi Lek&Nick r u guys still want to run the restaurant can u guys answer my email or give us a call at leas if some thing change we have to make a move to another direction.

36In an August 8, 2012 email, Mrs. Souphilavong once again asked the plaintiffs to call her:

Hi Guys what is going on can some one call me please good news or bad news I don’t know what I am going to do call Asap

37There is no evidence that the plaintiffs responded to this email any more than they responded to the earlier ones.

38Start-up costs for which the defendants produced receipts amounted to only $35,000. I find that the actual start-up costs were substantially more than this. Mrs. Souphilavong testified that the leased premises had previously been used for a retail business. This meant that they had to be converted to incorporate a commercial kitchen and dining room. I accept Mrs. Souphilavong’s evidence that she had to pay contractors to rewire the premises, to install a gas line, new plumbing and ventilation, and to lay new floors. She could not produce receipts for these costs because she paid contractors in cash, under the table, in order to save money.

39I do not, however, accept Mrs. Souphilavong’s evidence that the total start-up costs for the restaurant were in the range of $300,000. This greatly exceeds the funding to which she had access (two lines of credit totalling $45,000; the sale of Mrs. Souphilavong’s car and jewelry, for $16,000; a second mortgage on their house, for $45,000; and the funds received from the plaintiffs). I find that the total start-up costs, including money and restaurant items provided by the plaintiffs, were more likely in the range of $125,000.

40Whatever the exact amount, it is clear that the start-up costs assumed by the defendants were far greater than anticipated. It is also clear that the plaintiffs could not, or would not, contribute anything more money after early 2011. Mrs. Souphilavong testified that, despite this, she felt she had no choice but to go through with the restaurant plan, because she was personally liable for both the lease payments and repayment on her lines of credit.

41Mrs. Souphilavong opened the Thai Flame restaurant on October 4, 2012. She and her sister prepared the food. Mr. Souphilavong assisted in the dining room when he could. The operating license for the business was assumed by the numbered company later that year.

The plaintiffs’ arrival in Canada and their work at Thai Flame

42In March 2013, Mrs. Souphilavong sent Ms. Sajjawiso a draft employment contract. It provided that she would work for the defendant numbered company for two years as a cook at the Thai Flame restaurant, beginning March 11, 2013. She would be paid $29,120 annually based on a 40-hour week and two weeks annual vacation. Under a section entitled “Termination”, the contract provided as follows:⁴

• In any case of any confliction that the employer is no longer needs the employee, the notification needs 10 months in advance from the employer or pay penalty that govern by the labor regulations

• In case the employee dishonest by seeking other employer or other employment during the contract is enforced, employee shall pay penalty $10,000 for the business interruption.

43In May 2013, Mrs. Souphilavong sent Ms. Sajjawiso a second employment contract. It was again for a two-year term but was set to begin only when Ms. Sajjawiso got a work permit and landed in Canada. The salary was $14 per hour, 40 hours per week with eight days of annual vacation. There was no termination clause, but under a section entitled “Terms of Employment”, the contract stated that: “In case of disruption of services either from you or from the company, a written notice is require (sic) at least two (2) weeks in advance from the date there of (sic) or remuneration, which equals two (2) weeks of your last drawn pay”.

44Although Ms. Sajjawiso signed both contracts, I find that the operative contract was the second one. She could not possibly start work in March 2013, as specified in the first version of the agreement, because she had not yet obtained a work visa. The May 2013 contract furthermore specified that it replaced any previous written or oral agreement. It was this contract that was submitted to government authorities to obtain a visa.

45I am also satisfied that Ms. Sajjawiso had an opportunity to review the contract and to seek information about any terms that were unclear to her. Mr. Matakaew testified that he read both employment contracts to her and translated any terms she did not understand. Although parts of the first contract were convoluted and poorly drafted, the May 2013 contract was relatively straightforward.

46In April 2018, Mrs. Souphilavong finally obtained authorization from the Canadian government to hire Ms. Sajjawiso as a temporary foreign worker at the Thai Flame restaurant. A work permit was issued on August 13, 2013.

47Mrs. Souphilavong sent money to the plaintiffs to fund Ms. Sajjawiso’s travel expenses. She wired $1,000 to Thailand on March 21 and another $1,500 on August 4, 2013.

48Ms. Sajjawiso arrived in Canada in late August or early September 2013. Mrs. Souphilavong testified that she loaned Ms. Sajjawiso an additional $1,100 in cash to allow her to pay first month’s rent and to buy necessary supplies. She expected that Ms. Sajjawiso would move into a rented room near the restaurant until Mr. Matakaew arrived in Canada. Ms. Sajjawiso told Mrs. Souphilavong that she would much prefer to stay with her. The defendants reluctantly agreed to let her stay, even though they had little room in their house.

49Ms. Sajjawiso denies that she received any additional loans from the defendants when she arrived in Canada. She testified that she expected to stay with them because they had stayed with the plaintiffs for a few days when they visited Thailand.

50I accept Mrs. Souphilavong’s evidence over that of Ms. Sajjawiso on these issues. The defendants had to wire money to allow Ms. Sajjawiso to travel to Canada. It is not disputed that they loaned Mr. Matakaew a further USD $800 (CAD $844) in November 2013. It is entirely plausible that the defendants would have advanced further funds to Ms. Sajjawiso when she arrived so that she could rent her own place.

51Ms. Sajjawiso began working at the Thai Flame restaurant, as a cook, in September 2013. She received payment for a 40-hour week at $15 an hour, a slight increase over the salary set out in the May 2013 employment contract. Mrs. Souphilavong or her sister worked alongside her in the kitchen.

52On December 14, 2013, Mrs. Souphilavong gave Ms. Sajjawiso a cheque from Orchid Comfort Cleaning Services for a further $2,000. I find that this was a further loan to allow her and Mr. Matakaew to set up an apartment. He arrived in Canada on December 26, 2013, and Ms. Sajjawiso moved out of the defendants’ home to live with him.

53Mrs. Souphilavong testified that she advanced a further $2,000 to Ms. Sajjawiso in mid-January 2014. This was in part an advance on vacation pay and in part a loan. As evidence of this transaction, Mrs. Souphilavong produced a cheque made out to herself on the Thai Flame restaurant’s bank account, with the re line “For Amnay Sajjawiso”. She stated that she wrote this cheque instead of simply giving cash to Ms. Sajjawiso because she wanted to create a record of the loan. Ms. Sajjawiso denies receiving any part of the money cashed with this cheque. I accept Mrs. Souphilavong’s evidence on this issue.

Events from March 1st to May 31, 2014

54On March 1, 2014, Mr. Matakaew began working at the Thai Flame. The locks on the doors were changed on May 31, 2014, and he and Ms. Sajjawiso were terminated without notice. The parties disagree about their arrangement during this period, and the reason why the plaintiffs were fired.

The parties’ arrangement during this period

55The evidence establishes that, during the period between March 16 and May 31, 2014:

• Ms. Sajjawiso continued to work in the restaurant kitchen and continued to draw a salary based on $15/hour for a 40-hour week. Other staff members included Mrs. Souphilavong’s sister, who also worked in the kitchen, and one or more servers in the dining room.

• Mrs. Souphilavong worked for two days a week in the restaurant, for a few hours at a time. Mr. Souphilavong also dropped by daily or almost daily around lunchtime, because his business was right across the street.

• Most restaurant customers paid by debit or credit card. According to Mrs. Souphilavong, ten to fifteen percent of sales were paid in cash.

• Mrs. Souphilavong continued to have sole access to and control over the restaurant’s bank account, into which all proceeds of sales paid by debit card or credit card were deposited, and from which the business’ bills were paid.

• The cash in the cash register was used as petty cash and to distribute tips left by customers to employees at the end of each day. The amount to be distributed as tips was calculated each day by one of the servers. The kitchen staff shared 15% of the tips and the servers got the rest. Since most customers did not pay in cash, the total cash required to reimburse staff for tips sometimes exceeded the amount of cash in the till.

• When there was less than $200 in cash in the till on any given day, Mr. Souphilavong would top it off using his own funds.

• Mr. Matakaew received four cheques from the Thai Flame account:

  • A cheque for $750 dated March 15, 2014;

  • A cheque for $3,473.90 dated April 8, 2014;

  • A cheque for $3,000 dated May 1, 2014; and

  • A cheque for $2,313.36 dated May 5, 2014.

• At para. 12 of their defence to the Souphilavongs’ counterclaim in the Small Claims court action, the plaintiffs formally admitted that, when he was fired, Mr. Matakaew had, in his possession, $3,568.82 in cash received by the restaurant in the month of May 2014 for cash sales.

56Mr. Matakaew testified that he and Ms. Sajjawiso asked Mrs. Souphilavong for an accounting of the start-up costs and profits of the restaurant in early 2014. She refused to disclose any details, telling them simply that the restaurant was not profitable. They nevertheless reached an understanding. The plaintiffs would take over the management and operation of the restaurant. The Souphilavongs would be paid $3,500 monthly for two years, and the plaintiffs would be entitled to any net monthly revenues after operating expenses and this monthly stipend were paid. When asked why he kept over $3,500 in cash from cash sales in May, Mr. Matakaew stated that he was entitled to all of the restaurant’s profits, so it made sense for him to use this money as he saw fit.

57The plaintiffs’ account of the parties’ arrangement during this period is implausible. The plaintiffs assumed no financial responsibility for the business. Their names were not on the lease and they had no liability for rent or any other debts owed by the restaurant. The numbered company continued to pay Ms. Sajjawiso’s full salary, and Mr. Souphilavong continued to use his own funds to top up the cash in the cash register each day. I do not believe that the Souphilavongs would remain on the hook, in a legal and practical sense, for all expenses and liabilities associated with the restaurant, even though they capped their right to participate in any profits, and even though the plaintiffs had no track record in running any kind of business in Canada.

58I also find it odd that, in February 2015, Mr. Matakaew sent a letter to the restaurant claiming that he was owed salary and tips for work performed between December 26, 2013 and May 31, 2014. This is completely inconsistent with his assertion that he was being compensated as a part-owner as opposed to an employee.

59Mrs. Souphilavong had invested something in the range of $100,000 of her own money to launch the Thai Flame. She owed money on two lines of credit and a second mortgage. Under the arrangement described by Mr. Matakaew, she would recover only $84,000 ($3,500 for 24 months) of this investment over a two-year period. It would also leave her with nothing reflect the time and energy she and her husband had put into the venture, or their exposure to the risk that it would fail. The plaintiffs, meanwhile, would not only continue to get any remaining profits, but also get the benefit of Ms. Sajjawiso’s salary.

60I accordingly do not accept that the parties reached an agreement as described by Mr. Matakaew.

61Mrs. Souphilavong testified that the plaintiffs asked for a share of the business after they arrived in Canada. She asked for a payment of $60,000 up front to cover her outstanding loans and proposed that the plaintiffs pay the balance of the money that she had invested on a monthly basis. Although she hired a lawyer to draft an agreement to this effect, nothing came of it because the plaintiffs had no money. The only arrangement in place as of mid-March was that Ms. Sajjawiso would continue to work as a cook for 40 hours a week at $15 an hour, and Mr. Matakaew would work the same hours for $11 an hour.

62This explanation is persuasive but leaves one thing unexplained. If Mr. Matakaew was earning $11 per hour for 40 hours a week, he would be paid $440 a week. There were eleven weeks between March 15 and May 31, 2014. Mr. Matakaew was therefore entitled to a total of $4,840. The three payments to Mr. Matakaew in April and May totalled $8,787.26, or $3,947.26 more than the salary owed to him.

63When Mrs. Souphilavong was asked about these cheques, she first said that she simply wrote in the amount requested by Mr. Matakaew, with the understanding that some of it was an advance on his salary. This defies belief since two of the cheques were for oddly specific amounts of money ($3,473.90 on April 8, 2014 and $2,313.36 on May 5, 2014). Then Mrs. Souphilavong said that amounts on the cheques were meant to reimburse Mr. Matakaew for tips he had distributed to staff and purchases for restaurant supplies. This is more plausible, but it is inconsistent with her assertion that she gave the plaintiffs no authority to make large purchases for the restaurant.

64I conclude that Mrs. Souphilavong did not agree to share the restaurant’s profits with the plaintiffs or enter into an agreement with them whereby they would take over complete control of the restaurant in return for a monthly payment to her.. She did, however, delegate some of the management of the restaurant to the plaintiffs as of March 16, 2014. As a result, she accepted Mr. Matakaew’s representations to her about money he had spent out of his own pocket to buy supplies for the restaurant and to pay tips owed to staff. That is why she wrote him cheques for very specific amounts on April 8 and May 5, 2014.

The plaintiffs’ dismissal from Thai Flame

65The Souphilavongs testified that the plaintiffs made unilateral changes at the restaurant that undermined the quality of the food served and harmed its reputation. They changed the business’ suppliers without authorization and made other purchases using the cash in the register. When Mrs. Souphilavong confronted the plaintiffs about these issues, they told her that they had the right to manage the business as they saw fit. In May 2014, she twice asked Mr. Matakaew to return $3,568.82 in cash he had taken from the cash register. He admitted that he had taken the money but refused to give it back to her. She concluded that the plaintiffs were stealing money from the restaurant and that they must be dismissed.

66The plaintiffs testified that they were given no warning of their termination on May 31, 2014. They arrived the next day to find that the locks on the restaurant had been changed and learned that they had been fired.

67On August 8, 2014, Mrs. Souphilavong sent a letter to Ms. Sajjawiso enclosing her record of employment. She said that she wanted to “further explain and make amends [with her] for our unfortunate situation” and that “I have tried my best to work with you since this restaurant opened but it seems we cannot find common ground nor meet halfway”. She also asked Ms. Sajjawiso to pick up the restaurant supplies, including the furniture, that had been shipped from Thailand.

Are the plaintiffs entitled to recover damages for breach of contract or unjust enrichment? If so, what are their damages?

Are the defendants liable for breach of contract?

68In their statement of claim, the plaintiffs allege that they had a contract with the Souphilavongs to open a Thai restaurant in which they would be equal partners. At trial, Ms. Sajjawiso testified that the plaintiffs expected that ownership of the restaurant would be transferred to them once they arrived in Canada, and that the defendants would be entitled to receive only five to ten percent of the profits. The plaintiffs contend that the defendants breached this agreement by refusing to transfer the restaurant to them in 2013/14, and that they are entitled to recover their investment in the restaurant as a result of this breach.

69Having reviewed all of the evidence, I conclude that the plaintiffs have not proved that they had an enforceable contract with the Souphilavongs with respect to establishment of the Thai Flame restaurant.

70There was nothing in writing. This does not preclude me from finding that the parties had an enforceable agreement, but it places a burden on the plaintiffs to establish the terms through evidence of the parties’ discussions or conduct consistent with a binding agreement.

71The plaintiffs were generally not reliable witnesses. Their evidence about the terms of their agreement with the defendants was inconsistent. They were not able to say how much (if any) money the defendants were expected to contribute to start-up costs, and precisely what percentage of the profits would be payable to the defendants. Ms. Sajjawiso’s evidence was not consistent with her husband’s evidence about terms of the alleged agreement. Mr. Matakaew testified that the restaurant was to be owned by Mrs. Souphilavong, and that the plaintiffs would work with her and share the profits. Given that Mr. Matakaew, rather than Ms. Sajjawiso, was named as a partner in the lease for the restaurant premises, I would have expected that he would have an understanding of the basic terms of any agreement with the defendants.

72Mrs. Souphilavong testified that she agreed to help the plaintiffs because they were friends. She had no desire to run a restaurant, but she undertook to help them find and finish premises and submit an application so that Ms. Sajjawiso could get a visa. The evidence of what actually happened is consistent with her testimony on this issue. The plaintiffs approved the location for the restaurant. They sent over $22,000 to the defendants in early 2011 to cover costs. Around the same time, they spent another $30,000 on furniture, décor and equipment for the restaurant without input from the defendants. The defendants kept them informed about building permits and renovations and the status of the visa application. The parties’ conduct supports the defendants’ account of the parties’ understanding.

73When Mrs. Souphilavong ran out of funds in 2012, she sent a series of emails to the plaintiffs asking them whether they wished to move forward with the project. In her June 25, 2012 email she asked them “what do you want us to do next?”. On July 12, she asked them whether they still wanted to run the restaurant, failing which they would have to “move to another direction”. It was only when the plaintiffs failed to respond in any meaningful way that she made the decision to proceed with the restaurant by investing her own money.

74I do not accept that the Souphilavongs offered to help the plaintiffs out of purely altruistic motives. They expected to get a cut of the profits. I do, however, accept their evidence that they expected the plaintiffs to cover the start-up costs for the restaurant. This is in fact consistent with the plaintiffs’ evidence that they expected to take over the ownership and operation of the restaurant when they got to Canada.

75Since the plaintiffs have not established there was a meeting of the minds with respect to the essential terms of an agreement with the defendants, the defendants cannot be liable for breach of contract.

Have the plaintiffs established that the defendants were unjustly enriched?

76To succeed in a claim for unjust enrichment, the plaintiffs must prove that:

(1) the defendants have been enriched;

(2) the plaintiffs have suffered a corresponding deprivation; and

(3) there is no juristic reason for the enrichment.⁵

77The analysis proceeds in two stages. On the first stage, the plaintiff must prove the enrichment and the deprivation and establish that no juristic reason exists to deny recovery. If the plaintiff meets this burden, they have established a prima facie right to recover. This does not end the inquiry, however. On the second stage of the inquiry, the defendant may show that there is another reason to deny recovery, based on the circumstances of the transaction and the equities of the situation; Garland, at paras. 44 and 45.

78I conclude that the plaintiffs have met their prima facie burden. They have established that Mrs. Souphilavong and the defendant numbered company were enriched through their receipt of money and goods that were used to fund the establishment and operation of the Thai Flame restaurant, although not to the extent claimed by the plaintiffs. The plaintiffs have also proved that they were deprived of their investment. Because I have already found that there was no enforceable contract between the parties, and no other juristic reason has been established for the defendants’ enrichment and the plaintiffs’ corresponding deprivation, the plaintiffs are entitled to recover their loss unless the defendants can show a good reason why the Court should not grant the recovery.

What was the defendants’ enrichment and the plaintiffs’ corresponding deprivation?

79The plaintiffs claim that they advanced the following money and goods to the defendants for the Thai Flame restaurant:

(a) $22,648 wired to the defendants between January and April 2011;

(b) USD $6,625 in cash given to Mrs. Souphilavong on May 1^st, 2011; and

(c) $30,750 for goods allegedly purchased in Thailand for use in the restaurant and shipping costs of $3,510.

80The defendant numbered company operates the Thai Flame restaurant. It is owned by Mrs. Souphilavong and her sister. I find that, to the extent that the plaintiffs have proved that the defendants received funds that were used for the restaurant’s start-up costs, these transfers had the effect of enriching Mrs. Souphilavong and the numbered company at the plaintiffs’ expense. With respect to items purchased by the plaintiffs and shipped from Thailand, the plaintiffs would have to show not only that they incurred the costs claimed, but that the items were used in the restaurant.

(a) Money wired by the plaintiffs in early 2011

81The defendants admit they received $22,648 in wire transfers from the plaintiffs in early 2011. I find that this money was used to pay start-up costs for the restaurant, and accordingly enriched Mrs. Souphilavong and the numbered company to the detriment of the plaintiffs.

(b) Cash allegedly given to Mrs. Souphilavong on May 1, 2011

82The plaintiffs allege that they gave Mrs. Souphilavong USD $6,625 in cash on May 1, 2011. They have produced a receipt showing the conversion of Thai currency to U.S. funds at the Bangkok airport that day. Ms. Sajjawiso and Mr. Matakaew both testified that they gave the U.S. currency to Mrs. Souphilavong when they dropped her off at the airport so that she could fly home to Canada after a trip to Laos. Mrs. Souphilavong admits that she was accompanied to the airport by the plaintiffs on May 1, 2011 but denies that she received any cash from either plaintiff.

83I have serious reservations about the plaintiffs’ evidence regarding this advance. Mr. Matakaew at first said that he personally gave the cash to Mrs. Souphilavong, then said that his wife did. He initially stated that defendants were present at this exchange; when confronted with evidence that Mr. Souphilavong was in a hospital in Canada at the time, he had to admit that he was mistaken. He had no recollection of why the funds were converted to U.S., rather than Canadian, currency, or why the plaintiffs delivered cash to Mrs. Souphilavong rather than wiring funds as they had previously done on three occasions. Ms. Sajjawiso testified that Mrs. Souphilavong needed cash for travel expenses. This explanation is implausible given that Mrs. Souphilavong was flying home to Canada at that point and the amount of money allegedly given to her was significant. Ms. Sajjawiso’s evidence also contradicts the proposition that the money was advanced for the restaurant.

84The burden is on the plaintiffs to prove that they made the advances that they now seek to recover from the defendants. Given the shortcomings in the plaintiffs’ evidence on this specific point, and my general conclusion that the defendants’ evidence is more reliable, I find that the plaintiffs have not proved that they advanced USD $6,625 to Mrs. Souphilavong on May 1, 2011.

(c) Restaurant furniture, equipment and décor purchased by the plaintiffs for the restaurant

85The plaintiffs seek to recover $30,750 for goods they allegedly purchased in Thailand for use in the restaurant, and shipping costs of $3,510.

86Mr. Souphilavong was uncomplimentary in his assessment of the quality of many of the items that were shipped, stating that the cookware was not commercial grade, the chairs were uncomfortable and the tables were poorly constructed. I find that he exaggerated the problems with these items. What is important is whether they did in fact use the items in the restaurant, since in doing so they avoided the expense of acquiring their own furniture and equipment. The defendants have argued that Ms. Sajjawiso was not deprived of the benefit of the items they used because they offered to return them to her in the summer of 2014. Since the defendants have not established that the items had any significant residual value at that point, I do not accept this argument.

87This does not mean, however, that I accept that the defendants benefitted from all of the expenses they allegedly incurred to acquire and ship items for the restaurant.

88I begin by considering what was actually delivered to the defendants. The plaintiffs’ records include four receipts for purchases made after March 1, 2011 shipment totalling $10,466.⁶ This includes over $9,000 worth of menus and business cards and a meat slicer. Ms. Sajjawiso testified that she carried these items with her as luggage when she flew to Canada in August 2013. Given the volume of these items, I do not find this plausible. Even if this significant quantity of goods had accompanied her— an assertion denied by Mr. Souphilavong, who picked her up at the airport — there is no evidence that the items were needed or in fact used in connection with the restaurant, which by this time had been in operation for ten months. As a result, I do not take into account any of the purchases made by the plaintiffs after March 1, 2011. This reduces the plaintiffs’ total potential claim for reimbursement to $22,507.

89Some of the items purchased were foodstuffs costing $1,569.⁷ The defendants did not get the benefit of these items as they were refused entry into Canada. This reduces the total possible claim further to $20,938.

90Many of the remaining items obviously exceeded the restaurant’s requirements or was unsuitable for use. For example, the plaintiffs bought sixty dining room chairs, ten large tables and six smaller tables. According to Mr. Souphilavong, whose evidence on this point was uncontradicted, the restaurant’s dining room has space at most for six larger tables, four smaller tables and forty chairs. As a result, there was no need for about a third of furniture purchased by the plaintiffs at a cost of $5,525. The plaintiffs similarly purchased excessive quantities of plates, serving dishes and menus. A cabinet damaged in transit could not be used. An artificial waterfall remained in the box in which it was shipped. A touch screen monitor purchased by the plaintiffs for $274 was incompatible with the system installed at the restaurant by the defendants, and so was never used.

91The items that the defendants did not use in the restaurant were stored in the Souphilavongs’ basement after the restaurant opened in October 2012. They asked Ms. Sajjawiso to remove them when she arrived in Canada. They asked the plaintiffs again to dispose of them after they terminated their employment from the restaurant. When the plaintiffs did not pick them up, and the defendants gave them away or otherwise disposed of them. There is no evidence that the defendants benefitted from the purchase of these items.

92Finally, I find that the costs claimed by the plaintiffs are inflated. A packing list that accompanied the March 1, 2011 shipment stated that the goods shipped had a total estimated value of USD $3,960. A Canada Customs invoice indicated that the total declared value for the items shipped was $6,804. These ascribed values are far below the amount that the plaintiffs ostensibly paid for the goods in this shipment. In cross-examination, Ms. Sajjawiso admitted that she had altered some of the receipts to add items for which no receipt had been issued. This makes some of the expenses claimed inherently suspect.

93Taking all of these considerations into account, I conclude that the enrichment to the defendants as a result of the items shipped on March 1, 2011 is $5,000, or roughly a fourth of the cost the plaintiffs allegedly paid for them. The defendants also benefitted from the plaintiffs’ payment for shipping, but only to the extent that those costs related to items used in the restaurant. Since I have reduced the plaintiffs’ recovery for the goods shipped in 2011 by two thirds, I think it appropriate to reduce the recovery of shipping costs by the same factor. I accordingly find that the defendants are liable for $800 in shipping costs. This brings the total amount recoverable for the items shipped from Thailand to $5,800.

Conclusion on the plaintiffs’ right to recover for unjust enrichment

94Adding the amount of the 2011 wire transfers and the items shipped, the plaintiffs are entitled to recover $28,448 from Mrs. Souphilavong and the defendant numbered company, subject to the defendants’ establishment of a reason to deny recovery for some or all of this amount.

Are the plaintiffs entitled to recover the entire amount of their investments?

95I find that the defendants have established that there is a valid reason for this Court to deny the plaintiffs full recovery of the value of the funds and items they invested in the Thai Flame restaurant.

96The evidence establishes that Ms. Souphilavong materially changed her position as a result of the plaintiffs’ conduct in late 2010 and early 2011. When she received the money and goods they sent to Canada, she borrowed money in order to move the restaurant project forward. By the time she realized that the plaintiffs were not going to send her the rest of the start-up costs, she had incurred significant debt and felt she had no choice but to forge ahead. It would be unjust, in these circumstances, to require Mrs. Souphilavong and the defendant company to reimburse the plaintiffs for their entire investment. Their recovery should be offset by amounts that the defendants lost as a result of the plaintiffs’ actions.

97I have found that Mrs. Souphilavong or companies under her control loaned or advanced the following monies to the plaintiffs:

Date	Amount	Description
March 21, 2013	$1,000	Moneygram transfer to plaintiffs for travel expenses
August 8, 2013	$1,500	Moneygram transfer to plaintiffs for travel expenses
Sept. 1, 2013	$1,100	Loan to Ms. Sajjawiso for rent and living expenses
Nov. 16, 2013	$844	Loan to Mr. Matakaew of USD $800
Dec. 12, 2013	$2,000	Cheque to Ms. Sajjawiso from Orchid Comfort Cleaning
Jan. 15, 2014	$1,026	Cash given to Ms. Sajjawiso of $2,000 less vacation pay of $974
Total	$7,470

98Mr. Souphilavong testified at length about the problems caused as a result of the unexpected arrival of the plaintiffs’ shipment of goods from Thailand in April 2012. The defendants should obviously not have to pay the $2,000 fine imposed by the Canadian Border Service Agency for contraband within the shipment. The defendants also had to pay money to have items clear customs, and to transport and store them until the restaurant opened in October 2012. I accept Mr. Souphilavong’s evidence on these issues.

99This does not mean that all of these expenses should be deducted from the amount that the plaintiffs should recover. Since some of the items shipped were used for the restaurant, some of the expenses in relation to the shipped items were not thrown away. I find that the 50% of the defendants’ costs in relation to the shipment, including expenses incurred for a customs agent ($229), duty ($607), delivery ($450), and storage ($4,017) were spent to procure items they legitimately needed, or at least could have used, in the restaurant. This leaves $2,651 that the defendants should not reasonably have had to pay, in addition to the $2,000 CBSA fine.

100Mrs. Souphilavong also paid a lawyer fees of $500 on October 22, 2010 and a further $3,000 on February 8, 2011. The lawyer’s efforts did not bear fruit, and Mrs. Souphilavong later paid someone else another $2,700 for their assistance with Ms. Sajjawiso’s foreign worker application. I find that Mrs. Souphilavong should be entitled to recover these fees.

Impact of the offsets on the plaintiffs’ claim for unjust enrichment

101I conclude that the amount by which Mrs. Souphilavong and her defendant numbered company were unjustly enriched is offset by a total of $18,321. This reduces the plaintiffs’ recovery for unjust enrichment from $28,448 to $10,127.

Are the plaintiffs owed any unpaid wages, vacation pay or pay in lieu of notice? If so, how much and by whom?

102On the evidence in this case, Ms. Sajjawiso’s employer was the defendant numbered company. There is no basis to pierce the corporate veil and make Mrs. Souphilavong liable for any amounts owed to her company’s employee. There is no basis for any liability on the part of Mr. Souphilavong.

103The defendant numbered company acknowledges that Mrs. Souphilavong is owed $1,200 in unpaid wages, based on the number of hours worked on her record of employment. I have already found that Ms. Sajjawiso was given $2,000 in January 2014, which included an advance for her vacation pay. The only question, therefore, is whether she is entitled to any damages for unjust dismissal and, if so, how much.

104In the defendants’ statement of defence, the only basis pleaded for the plaintiffs’ termination is their alleged theft of money from the restaurant. They do not allege that they had the right to fire the plaintiffs based on insubordination or any other cause.

105Theft is obviously a very serious allegation. It requires proof not only that the defendants took money from the business but that they did so with a dishonest intent.

106Mr. Matakaew has admitted that he retained over $3,500 in cash he took from the till in May 2014. He contends, however, that he had a right to keep this money because Mrs. Souphavilong gave him complete control over the restaurant in mid-March 2014. Although I have rejected the plaintiffs’ evidence about the parties arrangement in early 2014, I am not persuaded that the plaintiffs deliberately stole money from the restaurant. I believe that Ms. Sajjawiso and Mr. Matakaew may have genuinely believed that they were authorized to use the cash in the register for the restaurant’s operations. The tone and content of Mrs. Souphavilong’s August 8, 2014 letter is also inconsistent with a sincere belief that the plaintiffs deliberately misappropriated funds to which they knew they had no legal entitlement.

107I therefore conclude that the defendants have not established that they had cause to dismiss the plaintiffs without notice.

108The notice period in Ms. Sajjawiso’s May 2013 employment contract is two weeks, which would entitle her to an additional $1,200 in salary. I do not find that she is entitled, in the circumstances, to any damages over and above this. Her counsel argued that the termination put her in a vulnerable position due to her immigration status and the lack of demand for Thai cooks in Ottawa. There was no evidence to support these arguments. In any event, there is no basis to grant Ms. Sajjawiso entitlement to notice beyond the period provided for in the contract that she signed.

109Ms. Sajjawiso is therefore entitled to a total of $2,400 for unpaid wages and damages in lieu of notice.

Is the defendant numbered company entitled to recover $8,193 counterclaimed from the plaintiffs?

110The numbered company counterclaims for $8,193. This is the sum of cash sales at the restaurant between March 16 and May 31, 2014.

111Beyond the $3,569 that Mr. Matakaew refused to remit to Mrs. Souphilavong before being fired, the defendants have not proved that he misappropriated other cash amounts from the restaurant. The evidence establishes that he was almost certainly over-compensated for the work he performed. The Souphilavongs acknowledged, however, that the cash in the restaurant’s till could be legitimately used for small purchases and for tips distributed to staff. They did not present any accounting to show that the restaurant’s revenues between March 16 and May 31, 2014 declined, or any comparison of the cash that Mr. Souphilavong had to add to the till during this period and the cash he had to add during other periods.

112I therefore find that the numbered company’s counterclaim should succeed but that it is entitled to recover only $3,569 from Mr. Matakaew.

Disposition

113For the reasons set out above:

(i) The plaintiffs’ claim for unjust enrichment is allowed against Mrs. Souphilavong and the numbered company in the amount of $10,127.

(ii) Ms. Sajjawiso’s claim for unjust dismissal against the defendant company is granted in the amount of $2,400.

(iii) The defendant company’s counterclaim against Mr. Matakaew is granted in the amount of $3,569.

(iv) All claims against Mr. Souphilavong are dismissed.

114If the parties are unable to agree on costs, they may each serve and electronically file cost submissions on or before August 30, 2021. The submissions shall be no longer than three pages in length and shall attach a bill of costs and any other relevant document.

Footnotes

1. 1Money amounts in these reasons are in Canadian dollars unless otherwise specified, and are generally rounded to the nearest dollar.
2. 2The texts of this and other emails are reproduced with the original words and punctuation.
3. 3In their correspondence, Ms. Sajjawiso was addressed as “Lek” and Mr. Matakaew as “Nick”.
4. 4The exact wording of the contract is reproduced here.
5. 5Garland v. Consumers’ Gas Co., 2004 SCC 25, at para. 30, citing the Court’s earlier decisions in Becker v. Pettkus, 1980 CanLII 22 (SCC), [1980] 2 S.C.R. 834, at p. 848, and Peel (Regional Municipality) v. Canada, 1992 CanLII 21 (SCC), [1992] 3 S.C.R. 762, at p. 784.
6. 6These are identified as receipts 22, 23, 24 and 25 on Exhibit D.
7. 7Receipt 21 on Exhibit D.