Date Issued: December 4, 2017

File: SC-2017-002663

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Valley Copiers Ltd. v. Ekaas Law Corporation, 2017 BCCRT 130

Between:

Valley Copiers Ltd.

Applicant

And:

Ekaas Law Corporation

Respondent

REASONS FOR DECISION
Tribunal Member:	Andrew Pendray

INTRODUCTION

1.         In February 2016, the applicant Valley Copiers Ltd. (Valley) agreed to rent a multi-function printer (the copier) to the respondent Ekaas Law Corporation (Ekaas).  This dispute relates to the termination of that rental agreement.

2.         Specifically, Valley says that after it provided notice to terminate the rental agreement in December 2016, Ekaas prevented it from retrieving the copier until July 27, 2017.  Valley says that Ekaas therefore owes rental payments up to that date.

3.         Ekaas says it in fact provided rental payments to Valley for the period of January through April 2017, and that the delay in retrieving the copier from April 2017 to July 27, 2017 was solely caused by Valley.

JURISDICTION AND PROCEDURE

4.         These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 3.1 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

5.         The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.  Both parties were self-represented and provided written submissions in support of their positions.

6.         The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

7.         Under tribunal rule 121, in resolving this dispute the tribunal may make one or more of the following orders:

a.     order a party to do or stop doing something;

b.     order a party to pay money;

c.      order any other terms or conditions the tribunal considers appropriate.

ISSUE

8.         The issue in this dispute is whether Ekaas owes monthly rental fees for the copier from February through July 2017.

EVIDENCE AND ANALYSIS

Background

9.         On February 2, 2016 Ekaas signed an agreement (the agreement) to rent the copier from Valley. That agreement set out a monthly rental rate of $110.88.

10.      The agreement also set out details about each party’s right to terminate the agreement.

11.      Valley was given the right to terminate the rental agreement in two different ways.  First, Valley could terminate the agreement by providing one month of notice of its intention to do so.  Second, Valley could terminate the agreement and remove the copier from Ekaas immediately, as long as it refunded any already rent that had already been paid.

12.      Ekaas was provided with a right to terminate the agreement by providing one month of notice of its intention to do so.

13.      In a December 14, 2016 email Valley notified Ekaas that it was terminating the agreement. The email requested that Valley provide a date and time that the copier could be picked up after January 2, 2017, noting that rental payment for the final month (December 2016) had already been paid at the time the agreement was signed.

14.      Ekaas replied that same day via email.  In that email Ekaas objected to the termination of the agreement in general, and the termination date of January 2, 2017 specifically.   Ekaas noted that it would not be able to obtain a suitable replacement for the copier by January 2, which would have a negative effect on its business.  It also referenced that it had, earlier in December 2016, purchased $109.00 in toner from Valley which would be a wasted expenditure if the copier was removed by January 2, 2017.  Ekaas further suggested that Valley was terminating the agreement simply because Mr. P of Valley did not like being told to check in at reception prior to conducting maintenance on the copier, which was not a valid basis for terminating.

15.      In a January 4, 2017 email Valley informed Ekaas that it could keep the copier until January 29, 2017 at no charge in order to avoid disruption of Ekass’ business and in acknowledgement of the December 2016 toner purchase.  Valley indicated that it would arrange a time and date for picking up the copier in the first week of February.

16.      Valley wrote Ekaas again on January 26, 2017, looking to establish a time and date at which it could retrieve the copier in early February.  At that time Ekaas again objected to the termination of the agreement, and did not provide a date and time for retrieval.

17.      In reply, Valley indicated that it had already given Ekaas more notice of termination than it was entitled to under the agreement. Valley suggested that if there was anything further it could do to Ekaas would need to explain what that was in order for Valley to consider its position.  Valley noted that if Ekaas was not willing to engage in discussion as to how to bring about the termination of the contract and the retrieval of the copier, it would have to bring legal action.  Ekaas did not respond.

18.      As a result, on February 22, 2017 Valley’s legal counsel wrote Ekaas.  That letter noted that Valley had, on December 14, 2016, provided termination notice for the agreement.  Valley indicated in its February 22 letter that it would deposit the rental payment for January 2017, and would extend its previous offer of a free month’s rent to March 2017, in acknowledgement of the purchase of toner.  Valley requested that Ekaas contact either its legal counsel or Valley directly, at Ekaas’ “earliest convenience”, to make arrangements for a specific date and time for the copier to be removed on or before March 29, 2017.

19.      On March 7, 2017 Valley’s legal counsel, having not yet received a reply to the February 22, 2017 letter, wrote to Ekaas.  In that letter Valley suggested that the lack of a reply to the February 22 letter showed a lack of good faith on the part of Ekaas and requested an immediate response providing a date that Valley may pick up the copier.

20.      Ekaas replied to Valley’s February 22 letter on March 13, 2017.  In that letter Ekaas complained of the level of service it had received during the course of the rental agreement and suggested that Valley was seeking to terminate the agreement in bad faith.

21.      Specifically, Ekaas suggested that the termination was the result of its requiring Mr. P of Valley to check in at reception when attending on maintenance calls, that the selling of the supply of toner (Which Ekaas says was a year’s supply) just days before terminating the contract showed bad faith.  Ekaas requested that Valley return all pre-signed monthly payment cheques, refund the amount paid for the toner in December 2016, refund the January 2017 rental payment, and that Valley send someone other than Mr. P to retrieve the copier.  In its letter Ekaas indicated that it was not scheduled to return to the office until April 17, 2017.

22.      Valley did not reply to Ekaas’ March 13, 2017 letter.

23.      Ekaas followed the March 13, 2017 letter with an April 25, 2017 email.  In that email Ekaas said that Valley could retrieve the copier, and requested that Valley propose dates and times to do so.  Ekaas again requested that Mr. P not be the representative sent to retrieve the copier.

24.      Valley again did not reply.

DECISION

Rent

25.      Valley seeks an order directing that Ekaas pay damages of $665.28, the value of the monthly rental payments for the copier from February through July 27, 2017, the date on which Valley retrieved the copier from Ekaas.

26.      I find that Ekaas owes rental payments to Valley for the months of February, March, and April 2017.  Ekaas continued to enjoy the use of the copier throughout that period because of its objections to the notice of termination on December 14, 2016.  Even in the March 13, 2017 letter Ekaas made clear that the copier would not be available for retrieval until April 17.  Ekaas subsequently did not indicate the copier was actually available until April 25. I consider that Ekaas can be understood as having sought extensions to the agreement until April 25, 2017.

27.      In finding that Ekass owes rental payments for February, March, and April 2017, I note that Ekaas has indicated in its submissions that Valley ought to have already cashed rental cheques Ekaas had provided to it through April 2017.  I take that submission to mean that Ekaas now acknowledges, contrary to the position it set out in its March 13, 2017 letter to Valley, that it owes rent for the copier through April 2017.

28.      It is the period after April 2017 that, in my view, causes more difficulty for Valley.

29.      I find that by April 25, 2017, it was clear that Ekaas was accepting the termination of the agreement and that the copier was available to be retrieved by Valley.  Ekaas specifically requested that Valley identify a date to retrieve the copier.  Valley did not reply.

30.      While it is true that the agreement required Ekaas to not unreasonably withhold access to the copier for removal, Valley has not provided evidence to show that such access was in fact withheld by Ekaas from April 25 forward.

31.      The only explanation in the evidence and information before me as to the delay in retrieving the copier from the end of April 2017 to July 27, 2017 is set out in Valley’s submissions.  There, Valley says that its view was that the request that Mr. P not be the individual Valley send to retrieve the copier was insulting and baseless.

32.      I do not consider the evidence to support a conclusion that the fact of Valley, and Mr. P, feeling insulted is particularly relevant to a consideration of whether the copier was available for retrieval by Valley prior to July 27, 2017.  Mr. P’s involvement or non-involvement in the retrieval of the copier would be relevant if Valley had provided some indication that it could not retrieve the copier unless Mr. P was involved in that retrieval.  Valley did not provide any evidence or make any submission taking that position.

33.      Further, the evidence before me does not suggest that Valley indicated to Ekaas that the request to have a representative other than Mr. P retrieve the copier was unacceptable to it, or that such a request amounted to an unreasonable withholding of access.  Without having indicated that position to Ekaas in March or April 2017, I do not consider that Valley can now rely on that position to say that the copier was not available to be retrieved as a result of that request.

34.      I find the evidence to fall short of supporting a conclusion that access to the copier for retrieval purposes was unreasonably withheld from Valley after April 25, 2017.  I therefore find that Valley is not entitled to rental payments for the months of May, June, or July 2017.

Bad Faith

35.      Valley also seeks compensation for the time and effort its director, Mr. P, spent in pursuing the return of the copier and bringing the dispute to the tribunal. The amount identified was $1,039.50, based on Mr. P’s regular hourly rate of $99.

36.      I agree with Ekaas that there is no basis for Valley to request damages in the form of payment for the time spent by one of its employees who was involved in this dispute by having to send emails and meet with legal counsel.  I decline to make such an award in this case.

37.      In declining to make that award, I acknowledge that Valley has argued in its reply submissions that Ekaas acted in bad faith with respect to the termination of the agreement.  Although not pursuing damages for such an allegation in this action by way of a counterclaim, I note that Ekaas had previously accused Valley of acting in bad faith when it provided notice to terminate the agreement in December 2016.

38.      In my view, rather than involving bad faith, this case involves nothing more than a dispute over the way a contract was to be terminated.  After Valley provided the initial notice of termination on December 14, 2016, the parties entered into what can best be described as a negotiation regarding how the termination of the agreement would in fact come about.

39.      I note that Valley in fact appears to have generally agreed with Ekaas’ initial objection to the notice of termination, having extended the notice period to the end of January 2017.  Valley then further extended the notice period to the end of March 2017.  I have no doubt that Valley found the position taken by Ekaas during the negotiation of the termination of the agreement to be frustrating. However, the fact that opposing parties take different views of how a contract should be terminated does not mean that there has been bad faith.

ORDERS

40.      I order that Ekaas pay Valley $332.64 for rental of the copier in the months of February, March, and April 2017, plus $1.95 in pre-judgment interest under the Court Order Interest Act (COIA).

41.      Under section 49 of the Act, and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. Here Valley was successful, and I therefore order that Ekaas reimburse Valley $100 for tribunal fees.

42.      In making that decision I acknowledge that Ekaas indicated in its submissions that it was of the view that Valley ought to have simply cashed the rent cheques through April 2017, and that as a result there was no basis for Valley to bring this dispute.  I reject that position.   Given the position Ekaas had taken in its March 13, 2017 letter, I accept that Valley had reason to bring this dispute.

43.      Valley is entitled to post-judgment interest under the COIA.

44.      Under section 48 of the Act, the tribunal will not provide the parties with the Order giving final effect to this decision until the time for making a notice of objection under section 56.1(2) has expired and no notice of objection has been made.  The time for filing a notice of objection is 28 days after the party receives notice of the tribunal’s final decision.

Andrew Pendray, Tribunal Member

45.     Under section 58.1 of the Act, a validated copy of the tribunal’s order can be enforced through the Provincial Court of British Columbia.  A tribunal order can only be enforced if it is an approved consent resolution order, or, if no objection has been made and the time for filing a notice of objection has passed. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.