Date Issued: July 18, 2018

File: SC-2017-005867

Type: Small Claims

Civil Resolution Tribunal

Indexed as: D & G Hazmat Services Ltd v. Troico Home Solutions & Manufacturing Inc., 2018 BCCRT 345

Between:

D & G Hazmat Services Ltd

Applicant

And:

Troico Home Solutions & Manufacturing Inc.

Respondent

REASONS FOR DECISION
Tribunal Member:	Kate Campbell

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.

2.         This dispute is about payment for drywall removal and demolition services.

3.         The parties are each self-represented. The applicant’s Dispute Notice originally named a second respondent, but the applicant withdrew its claim against that respondent. I have therefore amended the style of cause accordingly.

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 126, 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 claim.

ISSUES

8.         The issues in this dispute are:

a.      Should I hear the applicant’s claim without the respondent’s further participation, given the respondent’s non-compliance?

b.      Is the respondent required to pay the applicant $1,702.50 for drywall removal and demolition services?

EVIDENCE & ANALYSIS

Non-compliance

9.         My June 28, 2018 summary decision to hear the dispute without the respondent’s participation due to the respondent’s non-compliance was previously communicated to the parties by email through the case manager. The details supporting that decision are set out below.

10.      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 case manager to contact it with a request for a reply.

11.      The respondent filed a Dispute Response, and the parties had a mediation teleconference facilitated by the case manager on March 22, 2018. At that time, the parties reached an agreement to settle their dispute, contingent on confirmation of payments by the respondent to be completed by March 28, 2018. The case manager did not receive confirmation of the outstanding payments, and was therefore not able to conclude the dispute. The case manager then made the following attempts to contact the respondent, but received no response:

a.      May 30, 2018 email: The case manager noted that the parties were expected to comply with directions and deadlines set by the case manager. The case manager said that on May 15, the respondent was instructed to provide her with an update on the settlement, specifically the payments made into court per a garnishee order. The case manager said the respondent had failed to comply with that direction, was impacting the draft settlement, and could lead to a finding of non-compliance meaning that a Tribunal Member might decide the dispute without the respondent’s participation. The case manager requested an update by May 31.

b.      May 30, 2018 telephone call: The case manager left a message asking for a return call.

c.      June 19, 2018 telephone call: The case manager left a message at the respondent’s place of business. She was told that the respondent’s representative was in a meeting.

d.      June 20, 2018 telephone call: The case manager left a message with someone at the respondent’s representative’s workplace asking for a response. She was told that the representative would receive her message that day.

e.      June 20, 2018 email: The case manager repeated the June 20 telephone message, and said she needed to hear from the respondent by 4:00 pm that day.

f.       June 22, 2018 email: The case manager sent another email setting out a final warning for non-compliance, stating that if the respondent failed to respond by 4:00 pm that day, the dispute might be decided without its participation.

12.      The case manager then referred the matter of the respondent’s non-compliance with the tribunal’s rules to me for a decision as to whether I should hear the dispute without the respondent’s participation.

 

 

Should the tribunal hear the applicant’s dispute without the respondent’s participation?

13.      As referenced above, the respondent filed a Dispute Response. The respondent has provided no explanation about why it failed to communicate with the tribunal as required. I find the case manager made a reasonable number of attempts to contact the respondent. The respondent was informed in writing at the beginning the facilitation process that it must actively participate in the dispute resolution process and respond to the case manager’s emails. Given that the respondent provided its contact information and participated in the facilitation process based on that contact information until March 22, 2018, I find it is more likely than not that the respondent knew about the case manager’s subsequent contact attempts and failed to respond.

14.      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.

15.      First, this dispute does not affect persons other than the named parties.

16.      Second, although the respondent participated in the facilitation process to the point of agreeing to a draft settlement, the respondent then effectively abandoned the process without providing evidence or submissions, and without confirming the final settlement. Thus, at that point the applicant was left with the dispute unresolved.

17.      Third, given the case manager’s attempts at contact and the respondent’s failure to respond despite written warning of the consequences, I find the nature and extent of the non-compliance is significant.

18.      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 without a remedy, which would be unfair to it.

19.      Finally, the tribunal’s resources are valuable. Its mandate to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly is severely impaired if one party refuses 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.

20.      In weighing all of the factors, I find the applicant’s claim 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; and

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

Payment for Demolition and Drywall Removal

21.      Having decided to hear the dispute without the respondent’s participation, I turn to the merits of the dispute.

22.      The applicant’s claim is for payment of $1,702.50 for demolition and drywall removal services it says it performed. The applicant says the respondent hired them to perform the work and after it was completed the applicant asked for payment numerous times but did not receive any money.

23.       In its Dispute Response, the respondent says the applicant discarded a door they were instructed not to remove, causing financial loss for replacement and reinstallation. The respondent’s representative says he was sick and could not deal with the claim until January 2018, and also that the respondent billed the incorrect amount based on the parties’ agreement that the applicant would complete the work for $1,550 plus GST.

24.      The respondent has not provided any evidence to support those assertions, or to confirm the alleged cost of the door. Also, the fact that the respondent’s representative may have been ill does not reduce the respondent’s obligation to pay for work performed. Finally, where a respondent has failed to comply with the tribunal’s directions as required, as in this dispute, an adverse inference may be drawn against that respondent. This means that if the person or organization refuses to participate, it is generally assumed that the other party’s position is correct. This is similar to when a respondent fails to provide any response at all to the dispute and is in default and the respondent’s liability is assumed.

25.      Based on this assumption of liability against the respondent due to its failure to comply with the tribunal’s directions, I find that the respondent is liable for the $1,702.50 claimed by the applicant for drywall removal and demolition services performed.

26.      Under section 49 of the Act, and the tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees. As the applicant was successful in this dispute, I order that the respondent pay the applicant $125 as reimbursement for tribunal fees. There were no dispute-related expenses claimed.

27.      The applicant is also entitled to pre-judgment and post-judgment interest under the Court Order Interest Act (COIA), as set out below in my order.

 

ORDERS

28.      I order that within 30 days of this decision, the respondent must pay the applicant a total of $1,845.57, broken down as:

a.      $1,702.50 for drywall removal and demolition services,

b.      $18.07 in pre-judgment interest under the COIA, and

c.      $125 in tribunal fees.

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

30.      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.

31.      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.