Superdogs Succulent Sausages v. CKDU FM Society

Superdogs Succulent Sausages v. CKDU FM Society Court Small Claims Court Date 2014-02-17 Citation 2014 NSSM 8 Docket SCCH 421313 Judge/Registrar/Adjudicator Knudsen, Gregg W. (Adjudicator) Document Type Decision Decision Content IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Superdogs Succulent Sausages v. CKDU FM Society, 2014 NSSM 8 Claim No: SCCH 421313 BETWEEN: Name Steven Weagle c.o.b. as “Superdogs Succulent Sausages” Claimant Name CKDU FM Society Defendant Editorial Notice Addresses and phone numbers have been removed from this electronic version of the judgment. Date of Hearing: December 19, 2013 Date of Decision: February 17, 2014 Steven Weagle appeared on his own behalf. Gianna Lalonde and Russell Gragg appeared for CKDU FM Society. DECISION This matter was originally commenced by the Claimant, Steven Weagle, while carrying on business as Superdogs Succulent Sausages (“Superdogs”), against Gianna Lalonde in her personal capacity. As evidence was led, it became clear that Superdogs was contracted by Ms. Lalonde's employer, CKDU FM Society, rather than her personally. Accordingly, it is ordered that CKDU FM Society (“CKDU”) is named Defendant in this claim, and the claim against Gianna Lalonde is dismissed without costs. The style of cause shall be amended accordingly. Many of the pertinent facts in this matter are not seriously in dispute. The Claimant, Superdogs, was hired by CKDU to provide hot dogs at the Defendant’s annual community picnic, an event held for its volunteers, donors and members. The event was to take place on August 17, 2013 at the Halifax Commons. Mr. Weagle and Ms. Lalonde, the Station Coordinator for CKDU, exchanged e-mails to establish terms of this engagement. A formal document was not prepared and the parties rely on the e-mails to evidence their agreement. It is clear that at least some of the consideration for this service was "contra" services consisting of advertising spots on CKDU's programs and the display of Superdogs’ logos on CKDU’s printed material. It was also understood that certain persons at the event would be issued tickets which they could exchange at the Superdogs venue for a free hot dog (or veggie dog) and a drink. The event was held as scheduled but following the event, it was clear the parties had a misunderstanding of the terms of the contract. Mr. Weagle was of the view that he was to be paid by CKDU for any product ordered by those in attendance. Ms. Lalonde, on behalf of CKDU, believed that Mr. Weagle would be charging those in attendance for any food or drink they may order, except for those persons with tickets entitling them to a free hot dog and drink. The Issues. What were the terms of the contract between Superdogs and CKDU for the provisions of hot dogs and other food and drink items at the CKDU Community Picnic on August 17, 2013? The Evidence of Both Parties Witnesses Steven Weagle testified that he is the sole proprietor of Superdogs Succulent Sausages. He was contacted by Jerry Reddick on behalf of CKDU to supply hotdogs at the picnic on August 17. The parties exchanged e-mails in an effort to confirm the terms of agreement between them. Mr. Weagle was advised to prepare for 150 guests or volunteers who would be entitled to a free hot dog or drink which would be paid in “contra services”. He was advised that everyone else would have their food paid by CKDU. He testified that he was expected to calculate the overall sales, less any donations received at the cash and he would be reimbursed for the difference. Mr. Weagle dealt with Ms. Lalonde throughout the planning for this event. He testified that he collected 24 tickets at the event and served 163 food items and 77 drinks. He did not collect any money for these items. His claim is for $882, representing the total price of the food he provided less the donations he received and $250 for contra services. Under cross examination, he testified that he was genuinely of the belief that nobody in attendance had to pay for food at the event. Otherwise, he would have charged for food and drink. He left a jar or can on the table for donations. I took that to mean as a “tip jar” rather than funds earmarked for CKDU. Jerry Reddick (aka "Dawgfather PhD”) testified that he supplied hotdogs for CKDU in the past. Initially, he charged $4.00 per person but in 2008 it increased to $5.00 per person. In 2012, it was the first year that contra was supplied as consideration. He did not attend the event in 2013. I find his evidence was not relevant to this case. Kirsten Weagle testified that she was one of six people working that day for Superdogs. She is married to the Claimant, Steven Weagle. She collected members’ tickets and dispensed food and beverages. She counted six tickets and the donations were placed in a separate jar. She recalls wondering why a donation jar was present. Mr. Weagle submitted a statement from Keith Crews, one of his employees. It was not taken under oath and Mr. Crews was not present to testify. The statement pertains to the discussions between Mr. Weagle and Ms. Lalonde after the event on August 17th. It describes several proposals for settlement discussed between the parties. It is expected that parties would seek to have a negotiated settlement before proceeding to a hearing. It is clear the discussions were without prejudice, even though that has not been stipulated. It is not relevant. Gianna Lauren Lalonde is the Station Coordinator at CKDU. She testified that CKDU FM Society is a nonprofit organization which operates a radio station based out of Dalhousie University in Halifax. The station is operated by volunteers and its funding comes primarily from private donations received throughout the year. Every year the radio station hosts the CKDU Community Picnic to honor its volunteers and donors. Superdogs was recommended to Ms. Lalonde. She entered into evidence a series of e-mails showing her invitation to Superdogs to sell hotdogs and drinks at the event. In addition, Superdogs was to give away one hot dog and a beverage to each participant at the picnic. In consideration, they would receive contra service, i.e. a 30-second radio spot and the inclusion of their logo on print ads for CKDU. They determined a value of $250 for this service. They expected 150 people to attend and Ms. Lalonde testified that at no point was she expecting Mr. Weagle to give his product away other than to those holding tickets. Following the event, she testified to being invited by Mr. Weagle to meet with her on the following Tuesday or Wednesday. Until receiving notice by e-mail, she had no idea they would be discussing "settling up". She counted 24 tickets in his jar, even though CKDU gave out 45 or 50 of them. On cross examination, Ms. Lalonde testified that she was not aware that Mr. Weagle and his employees were collecting donations and not charging for food. She expected that any product not covered by tickets would be paid by the public in attendance. Ryan Patrick Mancini Delahanty testified that he has been a volunteer with CKDU on an "on-and-off" basis for ten years. He has attended the last four annual picnics including that held on August 17, 2013. When he arrived at the event, he was issued tickets for a hot dog and drink. At the Superdogs venue, he observed the menu, price list and the donation jar. At the time, he did not think it was a donation jar, but a tip jar. He did not notice a cash box present. He contributed money to the tip jar after he ordered his food. E-Mails The contents of the e-mails are not in dispute. I have identified those e-mails which are most applicable. On July 31, 2013, an e-mail was sent from Ms. Lalonde to Mr. Weagle outlining the nature of the event. With respect to the contra arrangement, the following is stated by Ms. Lalonde: “CKDU would like to offer you promotion and an ad spot on our airwaves in exchange for up to $250 worth of free hot dogs (I am calculating based on $3-$4 hot dog). Since this event also acts as a volunteer appreciation event for CKDU members, I would like to offer CKDU volunteers and staff a free meal. This can be determined by tickets that I hand out to CKDU members which they will turn in for a hot dog, and by the end of the day you and I will count them all. If we give out more tickets than what you and I discussed, CKDU will pay the remaining cost in cash." A series of e-mails followed. On August 8, 2013, Mr. Weigle addressed an e-mail to Ms. Lalonde, setting up a meeting, which included discussions on menu, pricing, contract ad (production and airtime), and special requests. He followed this up with an e-mail on August 9 showing the prices of various products with a drink and or a bag of kettle corn. On August 14, Ms. Lalonde is responded with an e-mail which contained the following: Under the heading of Menu, the following is stated: "As previously mentioned, CKDU members will get tickets to enjoy a meal from you, which you will keep track of and we will ultimately "reimburse" you. Once the day is done, however, I'm going to suggest to you that CKDU members are only eligible for the following: (a smaller list of items is given together with prices) and then the following appears: "If they require anything else, they will have to pay out-of-pocket." The remaining e-mails illustrate the positions of the parties following the event. The Law In order to be successful, the onus is on the Claimant to prove a breach of the contract on a balance of probabilities. In order to find a breach, one must look at the interpretation of the contract. The Supreme Court of Canada stated the following in Eli Lilly and Co. V. Novopharm Ltd. (1998), 161 D. L. R. (4th) 1: "The contractual intent of the parties is to be determined by reference to the words used in drafting the document, possibly read in light of the surrounding circumstances which were prevalent at the time." In reviewing all of the circumstances, particularly the explicit wording of the e-mails, I am unable to find any evidence that supports the interpretation advanced by Mr. Weagle. I am especially persuaded by the language of the terms of the contra deal in the July 31 e-mail by Ms. Lalonde and her e-mail of August14 when she followed up with the terms of the arrangement. Based on the e-mails from both parties, the following terms are clear: - Superdogs was to set up a hot dog venue at the CKDU Community Picnic on August 17, 2013; - CKDU Members (i.e. volunteers and donors) and staff were to be issued tickets entitling each of them to a free hot dog or veggie dog and a beverage. In consideration for this service, Superdogs would receive an advertising package or “contra arrangement” equal to $250. - If more than 150 tickets were redeemed, CKDU would pay cash to Superdogs for any hot dogs/veggie dogs or drinks issued to members holding tickets. A number less than that amount were issued. - Members who needed anything else would be required to pay from their “own pocket”. Unfortunately, the e-mail is silent as to any additional product sold to non-Members. However, it is logical in the circumstances that if a Member were required to pay over any free entitlement, then a non-Member would be expected to pay from “their own pocket” as well. I find the contract as evidenced by the parties’ e-mails can only support one logical interpretation, the attendees at the CKDU Community Picnic were responsible for their own food unless they were issued tickets. Further, I accept Ms. Lalonde’s evidence that nobody from CKDU knew Superdogs was distributing its merchandise for free. Mr. Weagle’s interpretation that he has advanced is incorrect. The interpretation advanced above is what a reasonable person would consider in the circumstances. In the case of a unilateral mistake, one remedy is the recission of the contract but that is no longer possible. He received that to which he was entitled under the contract. Payment for his products should have come from the attendees at the picnic. Unfortunately, that is no longer possible either. While I am sympathetic to the financial loss he has experienced, the claim is without merit and should be dismissed without costs. An order shall issue accordingly. Dated at Halifax, NS, on February 17, 2014; ______________________________ Gregg W. Knudsen, Adjudicator Original: Court File Copy: Claimant(s) Copy: Defendant(s)