Date Issued:  February 7, 2018

File: SC-2017-003557

Type: Small Claims

Civil Resolution Tribunal

Indexed as: C. v. ABC Services Inc., 2018 BCCRT 31

Between:

C.

Applicant

And:

ABC Services Inc.

Respondent

REASONS FOR DECISION
Tribunal Member:	Shelley Lopez, Vice Chair

 

INTRODUCTION AND JURISDICTION

1.         This final decision of the Civil Resolution Tribunal (tribunal) has been made without the participation of the respondent, due to the respondent’s non-compliance with the tribunal’s directions as required, as discussed below. The applicant’s dispute is that she hired the respondent skip tracing firm to locate and disburse funds to the applicant’s deceased father’s relatives. The applicant provided $3,000 for those 2 disbursements, but says the respondent failed to provide proof it had made the disbursements as agreed

2.         The parties names are anonymized in this decision, to protect the applicant’s identity as the parties’ agreement originally contemplated the gifts be made anonymously.

3.         The parties are each self-represented.

4.         Section 36 of the Civil Resolution Tribunal Act (Act) applies if a party to a dispute fails to comply with the Act or its regulations. It also applies if a party fails to comply with tribunal rules in relation to the case management phase of the dispute, including specified time limits, or an order of the tribunal made during the case management phase. After giving notice to the non-compliant party, the case manager (facilitator) may refer the dispute to the tribunal for resolution and the tribunal may:

a.      hear the dispute in accordance with any applicable rules.

b.      make an order dismissing a claim in the dispute made by the non-compliant party, or

c.      refuse to resolve a claim made by the non-compliant party or refuse to resolve the dispute.

5.         These are the formal written reasons of the tribunal. The tribunal has jurisdiction over small claims brought under section 3.1 of the 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.

6.         Under tribunal rule 121, in resolving this dispute the tribunal may: order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate. 

7.         For the reasons that follow, I have allowed the applicant’s claims in part. The applicant’s first request was for orders that the respondent complete its obligations under the agreement, such as verifying it had made the disbursements. Given the respondent’s non-compliance and the need for finality, I find the applicant’s alternative requested remedy is more appropriate, namely for a refund of monies provided to the respondent. To that end, the applicant claims $3,120 plus tribunal fees, and it is that remedy that I have addressed below.

ISSUES

8.         The first issue in this dispute is whether I should proceed to hear the applicant’s claim, without the respondent’s further participation given the respondent’s non-compliance.

9.         The second issue is to what extent I should order the respondent to pay the applicant the $3,120 claimed.

EVIDENCE & ANALYSIS

Non-compliance

10.      My January 18, 2018 summary decision to hear the dispute without the respondent’s participation, given the respondent’s non-compliance was previously communicated to the parties by email, through the tribunal facilitator. The details supporting that decision are set out below.

11.      The respondent is the non-compliant party in this dispute and has failed to participate in the case management phase, as required by sections 25 and 32 of the Act and tribunal rules 94 to 96, despite multiple attempts by the facilitator to contact its representative with a request for a reply.

12.      In particular, the applicants filed their Dispute Notice on July 24, 2017. The respondent filed its Response on July 28, 2017. Following December 20, 2017 instructions, the facilitator set a January 12, 2018 deadline for the parties to provide their evidence and evidence list. The respondent did not comply. The facilitator made the following further attempts at contact, with no response:

a.      January 15, 2018: Phone call, voice mail message left reminding the respondent about the evidence deadline with a request for a return call.

b.      January 16, 2018: Email sent requesting a response by January 17, 2017. The facilitator warned the respondent that participation in facilitation is mandatory, and that if the respondent failed to respond as required he would refer the dispute to a tribunal member for adjudication without further participation by the respondent.

13.      The facilitator referred the respondent’s non-compliance with the tribunal’s rules to me for a decision as to whether I should hear the dispute in the absence of participation from the respondent.

14.      Should the tribunal hear the applicants’ dispute?

15.      As noted, the respondent filed a response but provided no explanation about why it suddenly stopped communicating with the tribunal as required. I find the facilitator made a reasonable number of attempts to contact the respondent. Parties are told at the beginning of a tribunal proceeding that they must actively participate in the dispute resolution process. The respondent participated at the outset of the tribunal process, but has made no contact despite multiple attempts and thus given no explanation for its failure to communicate. I find it is more likely than not that the respondent was aware of the facilitator’s attempts to contact it and chose not to respond.

16.      The tribunal’s rules are silent on how it should address non-compliance issues. I find that in exercising its discretion, the tribunal must consider the following factors:

a.      whether an issue raised by the claim or dispute is of importance to persons other than the parties to the dispute;

b.      the stage in the facilitation process at which the non-compliance occurs;

c.      the nature and extent of the non-compliance;

d.      the relative prejudice to the parties of the tribunal’s order addressing the non-compliance; and

e.      the effect of the non-compliance on the tribunal’s resources and mandate.

17.      First, this claim does not affect persons other than the parties involved in this dispute. While the applicant does intend to provide disbursements to third parties, that fact is not relevant to whether this proceeding should continue.

18.      Second, the non-compliance here occurred at the outset of the facilitation process and no substantive discussions between the parties occurred. The respondent has effectively abandoned the process after providing a response.  Third, given the facilitator’s repeated attempts at contact and the respondent’s total failure to respond despite warnings of the consequences, I find the nature and extent of the non-compliance is significant.

19.      Fourth, I see no prejudice to the applicant in hearing the dispute without the respondent’s participation. The prejudice to the respondent of proceeding to hear the dispute is outweighed by the circumstances of its non-compliance. If I refused to proceed to hear the dispute, the applicant would be left entirely without a remedy and that would be unfair to her.

20.      Finally, the tribunal’s resources are valuable and its mandate to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly is severely impaired if one party does not want to participate.  I find that it would be wasteful for the tribunal to continue applying its resources on this dispute, such as by making further attempts to seek participation from the respondent. 

21.      In weighing all of the factors, I find the applicant’s claims should be heard. In deciding to hear the applicant’s dispute I have put significant weight on the following factors:

a.      the extent of the non-compliance is significant;

b.      the applicant is not prejudiced if such an order is made; and

c.      the need to conserve the tribunal’s resources.

Assessment of damages

22.      Having decided to hear the dispute without the respondent’s participation, I turn then to the merits of the dispute. Where a respondent filed a response but has since failed to comply with the tribunal’s directions as required, as is the case here, an adverse inference may be drawn against that respondent. This simply means that if the person or organization refuses to participate, then it is generally reasonable to assume that the applicant’s position is correct on the issue at hand. This concept is similar to where liability is assumed when a respondent has failed to provide any response at all to the dispute and is in default.

23.      However, where the dispute involves non-debt claims, I find I must assess the value of the claims in order to make the appropriate orders. Arguably, the applicant’s claims here are debt claims, but given the respondent’s Dispute Response, I will address them.

24.      The applicant paid the respondent a total of $6,000.96, about half of which reflects the respondent’s “location” fees that are not in dispute. Here, the applicant claims reimbursement of the $3,000 it paid the respondent in 2 installments of $1,500, which was the amount to be disbursed to her 2 relatives. The additional $120 claimed by the applicant is for her purchase of bank drafts, cost of deliveries with signature.

25.      The applicant says the respondent has not proven it has disbursed the two $1,500 payments to the two relatives. While the respondent in its Dispute Response appears to indicate that it mailed cheques to those relatives, there is no evidence before me that the relatives received those cheques or that such mailing was reasonable given the parties’ agreement. I draw an adverse inference against the respondent, given its non-compliance, and find that the respondent has not properly disbursed the $3,000 and must reimburse that sum to the applicant. I further find the respondent must reimburse the applicant $120, for the delivery and bank draft expenses referenced above.

26.      The applicant is entitled to pre-judgment interest under the Court Order Interest Act (COIA) on the $3,120, from April 20, 2017.

ORDERS

27.      Within 30 days of this decision, I order the respondent to pay the applicant a total of $3,264.16, comprised of:

a.      $3,000 as reimbursement for the funds the applicant provided to the respondent and intended as gifts to her 2 relatives,

b.      $120 for the applicant’s bank draft and courier delivery charges,

c.      $19.16 in pre-judgment interest under the Court Order Interest Act (COIA), and

d.      $125 in tribunal fees.

28.      The applicant is also entitled to post-judgment interest under the COIA.

29.      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.

30.      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.