IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: MacFarlane v. Digital Glam Film Group, 2016 NSSM 12 REASONS FOR DECISION

Transcription

1 BETWEEN: Claim No: IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: MacFarlane v. Digital Glam Film Group, 2016 NSSM 12 ROBYN MACFARLANE and STEPHEN BOUDREAU Claimants - and - DIGITAL GLAM FILM GROUP and ANGELA KEATING Defendants REASONS FOR DECISION BEFORE Eric K. Slone, Adjudicator Hearing held at Halifax, Nova Scotia on April 13, 2016 Decision rendered on April 20, 2016 APPEARANCES For the Claimants For the Defendants Michael Berrigan Articling Student Angela Keating

2

3 -1- BY THE COURT: [1] The Defendant Angela Keating operates a non-registered business, the named Defendant Digital Glam Film Group, to perform services that include wedding videography. Because that business name is a non-entity, legally speaking, I will refer only to Angela Keating as the Defendant. [2] The Claimants were planning to get married on August 30, 2014, and somewhat late in the process decided that they would like to have videos taken of the occasion. The Claimants were working with a wedding planner, who recommended the Defendant. [3] The Claimants did not negotiate price or other terms of the engagement directly with the Defendant. That was done by the wedding planner, who also understood what the Claimants were hoping to receive. In the result, the Claimants paid the Defendant $ in advance of the wedding. [4] The Claimants seek a refund for the full amount that they paid, plus some other relief, because they claim that they did not receive what they were promised, and (perhaps more importantly) they did not receive anything in a timely way. [5] As such, the important questions for the court are to determine what was promised, and whether what was delivered was so deficient as to amount to a fundamental breach of contract.

4 -2- [6] On August 27, 2014, three days before the wedding, a form of contract was sent to the Claimants by . It appears to be a standard form of contract used by the Defendant, with areas to be filled in by hand. The important parts of the contract on page 2 (partly printed, and partly handwritten) are these: I, Robyn Macfarlane, have agreed to hire Digital Glam Film Group for services of Wedding Videography at the price of $ quoted to me today. for my event held at The Lord Nelson Hotel on August 30, 2014 at 4:00 p.m. (Getting 12 or 1 pm) for the duration of 8-10 hours [7] The undisputed evidence is that the contract was signed by Robyn Macfarlane and ed to the Defendant. There is no evidence that the Defendant ever signed it. However, later that same day, the Defendant ed an invoice to the Claimants, which acknowledged payment in full and included the following terms: * two shooters for 8 hrs ** edited photos * HD imaging shot at 1080 * professional audio * music and titling with video * edited Wedding Video (colour correction, music, audio, after effects) Regular Edit * DVD Copy and digital copy

5 -3- [8] The only arguable difference between the contract document and the invoice, was that the contract specified 8-10 hours, while the invoice said 8 hours. [9] The Defendant contends that she is not bound by the contract document, because she says it was not intended to used. She says that it was something given to the wedding planner quite a while ago, as a general idea of what services she provided. [10] I will say at the outset that I find this evidence difficult to accept. She admits receiving the document signed by Dr. Macfarlane, and never responded with any sort of disclaimer saying that she did not intend to be bound by it. Also, her evidence that it had been provided to the wedding planner a long time ago, is clearly not true. The printed portion of the document includes the date of August 25, 2014, a mere two days before it was sent and signed. What is far more likely than not is that the Defendant tailored it (at least in part) for the specific event and had to have known that it would be passed on by the wedding planner to the Claimants. [11] As for the discrepancy between the 8 and 10 hours of shooting, the Claimants say that they expected at least 8 hours of shooting, which they expected would include some scenes of them getting ready. The contract specified that the shooting would start at 12:00 or 1:00 p.m., and as such they expected the Defendant and her co-shooter to be there until well into the evening.

6 -4- [12] The evidence is conflicting as to when Ms. Keating and her other cameraperson showed up. Ms. Keating says that they showed up at about 2:00 p.m., and took some footage of the location - flowers, place settings etc. it was her testimony that they were only obliged to work for six hours. Included in that time, she says, was an hour for a meal break. She admitted that they left at about 7:00 p.m., because they had fulfilled their duties. She stated that this was all someone could expect to get for the low amount of money she was paying. She stated you don t get full coverage until midnight for $ [13] Ms. Keating testified that they did not film the Claimants preparing (eg. getting dressed) because she did not know where they were, and because she did not think she had been instructed to do so. [14] The Claimants testified that, as far as the raw video footage was concerned, the Defendant did not start filming until about 3:30, and the last footage appears to be at about 7:00 p.m., which was the time of the first dance between the couple. As such, entire parts of the wedding, including the rest of the reception, were not filmed. [15] Ms. Keating s statement that you don t get full coverage until midnight for $ reflected a view, on her part, that the Claimants were actually only paying $ for her lowest package. The other $250.00, she said, was a deposit for reserving the date and something for editing time. There is not a shred of evidence that the Claimants were told this. Indeed, that is totally at odds with the contract and invoice. There was no need for a deposit, because they were paying in full, in advance. Even so, when deposits are paid, the deposit is typically applied to the price. It is only forfeited if the client cancels. As for a

7 -5- breakdown between filming time and editing, there is no such breakdown in the contract. It is irrelevant how the Defendant may have wished to break it down. The Claimants were offered, and accepted, a package deal. [16] I have no hesitation in finding that the Defendant did not fulfill her promise to provide 8 hours of filming. If she started at 2:00 p.m., she should have been there until 10:00 p.m. It might have been reasonable for a meal break to be fitted in somewhere, although the contract says nothing about that. Arguably, the meal break would have been unpaid time and the end of the engagement should have been pushed later. [17] Although the time spent by Ms. Keating and her co-worker was an issue that occupied much of the trial, this was not initially the Claimants complaint. [18] The Claimants understood that it might take some time for the Defendant to provide the various components, namely the raw footage, an edited version and a so-called highlight reel of about 90 seconds. But they expected to receive this in a reasonable time. [19] The contract is silent on delivery time. However, on October 9, 2014, Dr. Macfarlane ed Ms. Keating asking how long it might be for them to receive what they had paid for. On October 11, approximately 6 weeks after the wedding - Ms. Keating wrote back and said that the expectation would be about weeks for projects started in peak wedding season. This would have meant another 6 to 8 weeks.

8 -6- [20] I would not elevate this estimate into a contractual term, but it is a good measure of what the Defendant regarded as reasonable. Where a contract is silent on the question of delivery time, a court would infer that the intention is that it will be performed within a reasonable time. [21] Even at 14 weeks, which would have meant roughly the second week of December, the deadline for completion came and went. The Claimants were disappointed because they had planned to bring the video to share their wedding day with Dr. Macfarlane s grandparents, who live out of town and who could not make it to the wedding. [22] On January 13, 2015, the Defendant forwarded the short highlight reel, but not the full length edited film or even the raw footage. By late January 2015, after various exchanges, all the Defendant could promise was that she was working on it, and that it would be delivered soon. The Claimants were disappointed in the quality of the highlight reel, and worried whether the rest would be as good as they were hoping for. [23] On January 14, 2015, the Claimants first asked for a refund. The exchanges that followed brought to light the considerable variance in expectations. On January 15, 2015, Ms. Keating first floated her view that the package she provided only allowed for 4 to 6 hours of filming. [24] In an dated January 26, 2015, Ms. Keating insisted that if the Claimants had wanted a full day of coverage, this would have cost them approximately $2,000. She reiterated that their standard bronze package was

9 -7- only 4 hours, although she says that they stayed 6 hours, which is not true even on Ms. Keating s evidence where she says they arrived at 2:00 and left at 7:00. [25] In response, Dr. Macfarlane stated in an that what they wanted, at that point, was a refund. They were willing to allow Ms. Keating to retain 20% as a non-refundable deposit. [26] On February 2, 2015, having had no response, and still not having received the videos (other than the highlight reel) it was made clear that the Claimants simply wanted a refund, failing which they would launch legal action. [27] On February 20, 2015, the Defendant delivered a package containing the balance of the video to the office of the Claimants lawyer. [28] The Claimants have reviewed the video footage, at their lawyer s office, and it only reinforced their determination to cancel the contract. They found the edited version to be poor quality and unprofessional. The raw footage consisted of 2 clips, each less than an hour in length, further reinforcing their view that the Defendant had only started filming at about 3:30 and stopped at about 7:00, missing many parts of the wedding and reception that they had expected to be included. [29] The court has not viewed the video. The Claimants intended to screen it at the hearing, but that did not happen because of technical difficulties. Although they were offered the opportunity to adjourn to another day for that sole purpose, both parties agreed that they wanted to conclude that evening.

10 -8- [30] As such, I draw no direct conclusions about the quality of the video. It is obvious that the Claimants are not satisfied with the quality, though their opinion may be tainted by the fact that it is incomplete and was delivered late. [31] The Claimants argue that there has been a fundamental breach of contract. The term fundamental breach refers to situations where the breach goes to the root of the contract. An ordinary breach of contract gives rise to a claim for damages, which are designed to place the injured party in the position they would have been in, had the contract been performed. A fundamental breach entitles the injured party to cancel the contract altogether, and to have returned any consideration paid under that contract. It is as if the contract never existed. [32] This court has discussed the concept of fundamental breach in past cases. In Aarons Sales and Lease v. Rafuse, 2013 NSSM 40 (CanLII), I had occasion to say this: 14 In my view, this view would only be correct if the breaches by the Defendant could be said to have been "fundamental breaches" of contract, serious enough to excuse the Claimant from continuing to perform any of its obligations. Not every contract breach excuses performance by the "innocent" party. 15 One of the leading case in Canada on fundamental breach of contract is Syncrude Canada Ltd. v. Hunter Engineering Co. (1989), 1989 CanLII 129 (SCC), 57 D.L.R. (4th) 321 (S.C.C.). Wilson J. wrote at p. 369: The formulation that I prefer is that given by Lord Diplock in Photo Production Ltd. v. Securicor Transport Ltd., [1980] A.C. 827 (H.L.). A fundamental breach occurs "Where the event resulting from the failure by one party to perform a primary obligation has the effect of depriving the other party of substantially the whole benefit which it was the intention of the parties that he should obtain from the contract" (p. 849).

11 -9- (Emphasis added.) This is a restrictive definition and rightly so, I believe. As Lord Diplock points out, the usual remedy for breach of a "primary" contractual obligation (the thing bargained for) is a concomitant "secondary" obligation to pay damages. The other primary obligations of both parties yet unperformed remain in place. Fundamental breach represents an exception to this rule for it gives to the innocent party an additional remedy, an election to "put an end to all primary obligations of both parties remaining unperformed" (p. 849). It seems to me that this exceptional remedy should be available only in circumstances where the foundation of the contract has been undermined, where the very thing bargained for has not been provided. 16 Applying this test, the Claimant would only be excused from performing its obligation to provide fire insurance, if the breaches by the Defendant were fundamental. For breaches of a contract that are not fundamental, the remedy of the innocent party is to claim damages for the breach, assuming any had been suffered. [33] The argument in favour of fundamental breach rests on the premise that the Claimants were entitled to have video covering a substantial part of their wedding day, and to have a finished video within a reasonable time. They say that the video is missing many of the important events of the day, and that it was delivered so late as to have frustrated their intention. [34] These defects, if seen as fundamental breaches, are not curable. There is no way that the Defendant can capture events that were missed, or provide the finished product within a reasonable time - even by her own measure. [35] Other aspects of the video could probably be fixed. Assuming there is enough good raw footage, a decent edit could still be created out of it (assuming that what was created is not up to par.)

12 -10- [36] On the other side of the coin, the Defendant could argue that the work was done and the video has some value. She could argue that it is unfair that she would have to forfeit compensation for all of the time spent, both at the wedding and thereafter. [37] While I am not without some sympathy for the Defendant s arguments, I find that her breaches were fundamental. Regrettably, she did not present as an honest witness. She had no good explanation for the lengthy delay in finishing the work. Her attempts to minimize her obligations suggest to me that she was unhappy with the amount of money that the Claimants were paying, and was prepared to shortchange them by spending less time than was promised. She also appears to have given completion of the project a very low priority. [38] In the end, instead of receiving a nicely done video in a timely manner, the Claimants received excuses. Instead of joy reliving their wedding, they experienced frustration. By the time they demanded their money back, I believe they had a valid claim to terminate the contract. The later delivery by the Defendant of a possibly-substandard product does not cure the fundamental breach. [39] The law of fundamental breach can have harsh results, but in some types of contracts - using this case as an example - the Defendant cannot expect to do a half job and collect part-payment. Whether part payment is deserved or not will depend on the nature of the contract. The Claimants here contend that the video has no value to them, at this time, and I accept their position. The Defendant is entitled to have whatever product she delivered returned to her, so long as she pays the judgment.

13 -11- [40] The Claimants have also sought general damages of $100.00, interest plus costs. General damages are meant to compensate for injury, which includes hurt feelings. I am satisfied that this minimal amount sought is well justified. [41] The Claimants paid their $ on August 27, Interest at the annual rate of 4%, as mandated by regulation, amounts to $49,48. Costs claimed are $99.70 for filing fee and $ to serve the claim. [42] The Claimants are accordingly entitled to recover from the Defendant the total of $1,108.43, consisting of the following: Debt owing (refund) $ General damages $ Interest $49.48 Costs $ Total $1, [43] Upon the Defendant presenting payment in full, she is entitled to have returned to her all of the video products delivered. It would not be in the spirit of this decision for the Claimants to make and retain any copies of this material. Eric K. Slone, Adjudicator