Date Issued: June 1, 2018

File: SC-2017-007630

 

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Hong v. British Columbia Hydro and Power Authority, 2018 BCCRT 226

Between:

Soon Hong

Applicant

And:

British Columbia Hydro and Power Authority

Respondent

 

REASONS FOR DECISION
Tribunal Member:	Kate Campbell

INTRODUCTION AND JURISDICTION

1.         This is a summary decision of the Civil Resolution Tribunal (tribunal) about an issue of non-compliance. Only the evidence and submissions relevant to this issue are referenced below.

2.         Both parties are self-represented.

3.         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.

4.         The applicant 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 several attempts by the facilitator to contact her.

5.         The facilitator has referred the applicant’s non-compliance with the tribunal’s rules to me for a decision as to whether I ought to refuse to resolve this dispute or dismiss it.

6.         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.

7.         For the reasons which follow, I dismiss the applicant’s dispute.

ISSUES

8.         The issue in this dispute is whether I should dismiss the applicant’s claim, hear the applicant’s claim, or refuse to resolve the claim or the dispute.

BACKGROUND AND EVIDENCE

9.         The key difference between a dismissal order and a refusal to resolve under section 36 of the Act is that, subject to cancellation or notice of objection requests, disputes that are dismissed may not be re-filed with the tribunal, another tribunal or a court at a later date. Claims or disputes that the tribunal refuses to resolve may be re-filed with leave of the tribunal, subject to any applicable limitation period.

10.      As shown on the January 10, 2018 Dispute Notice, the applicant made two claims against the respondent, seeking a refund of hydroelectricity payments made after she moved residences, and seeking to have unpaid amounts removed from her bill. These claims total $600.

11.      In their Dispute Response, the respondent says that while the applicant closed her account online, closing her existing account required additional steps that she did not perform.

12.      Over a 3-week period, the facilitator attempted to contact the applicant 6 times through the email address and telephone number she provided. These attempts occurred between May 4, 2018 and May 25, 2018. The facilitator spoke to the applicant on the telephone on May 14, 2018. During that conversation she asked the applicant to provide information about the amount she allegedly overpaid the respondent, and evidence to support her claims. The facilitator told the applicant that it was important for her to respond to calls and emails, as if she did not her dispute might proceed without her participation or be dismissed. The facilitator also told the applicant that she should inform the tribunal whether or not she wanted to request a representative, by 9:00 am on May 22, 2018.

13.      Although the applicant told the facilitator that she would email the requested information by May 18, 2018, she never did so. The facilitator followed up the telephone call with an email requesting a response by May 22, 2018, but the applicant did not respond.

14.      In a May 22, 2018 email, the facilitator warned that applicant that if she did not respond by 9:00 am on May 25, 2018, her dispute might be dismissed. After the applicant still did not respond, the facilitator sent an email on May 25, 2018 setting out a final warning. The email said that if the applicant did not provide by 9:00 am on May 30, 2018 a description of the amount overpaid, her evidence, and whether she would like to request a representative, her dispute might be dismissed or decided without her participation without further warning, pursuant to section 36 of the Act.

ANALYSIS

Should the applicant’s claim be dismissed or should the tribunal refuse to resolve the claim or dispute?

15.      For the following reasons, I dismiss the applicant’s dispute.

16.      Based on the emails provided by the facilitator, I find the facilitator made a reasonable number of attempts to contact the applicant. Given that the facilitator actually spoke to the applicant on May 14, 2018 and communicated her instructions verbally, I find that the applicant was aware of facilitator’s instructions and chose not to respond.

17.      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.

18.      I find that in the circumstances of this case, it is appropriate to dismiss the applicant’s dispute. Although it is not a binding precedent, I agree with the tribunal’s reasoning in Grand-Clement v. The Owners, Strata Plan, KAS 2467, 2017 BCCRT 45 that it is problematic to force an unwilling applicant to pursue a dispute with the tribunal. I agree that to do so would go against the mandate of the tribunal and impair the fairness of the process by creating an imbalance of the tribunal’s fact finding and decision-making functions.

19.      Further, this claim only affects the parties involved in the dispute.

20.      The non-compliance here occurred at the outset of the facilitation process and no discussions between the parties occurred. The applicant was unwilling to provide particulars of her claim, or to provide evidence to support her claim. Given this, I find the nature and extent of the non-compliance is significant.

21.      While English appears not to be the applicant’s first language, she was able to communicate with the facilitator over the telephone, and was given both written and verbal opportunities to request a representative or assistance. I therefore find that this factor does not mitigate the effect of her non-compliance with the tribunal’s directions.

22.      Given that no counterclaim was filed, I see no prejudice to the respondent caused by dismissing the applicant’s dispute.

23.      On the other hand, if I refuse to resolve the claim, there would be no finality to this dispute as it would be open to the applicant to make a further request for tribunal resolution, subject to any limitation period. I find that in refusing to resolve, there would be no finality and no consequence to the applicant for failing to participate, which would be unfair to the respondent.

24.      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 a dispute where the applicant does not appear to want the tribunal’s assistance in resolving her claim.

25.      In weighing all of the factors, I find the applicant’s claims in this dispute should be dismissed. Given that there is no counterclaim, the dispute is also dismissed.

26.      In deciding to dismiss the claim rather than refuse to resolve it, thereby issuing a final order to resolve the dispute, I have put significant weight on the following factors:

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

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

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

DECISION AND ORDERS

27.      I order that the applicant’s claims, and therefore this dispute, are dismissed.

28.      Under tribunal rule 131 the tribunal can make orders regarding payment of fees or reasonable expenses in the case of a withdrawal or dismissal. The respondent did not pay tribunal fees or claim expenses in this dispute. Therefore, I make no order as to the payment of tribunal fees or expenses.