Date Issued: August 31, 2018

File: SC-2018-000711

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Dabirvaziri v. Tiffany N.Y. Bridal Co. Ltd. et al, 2018 BCCRT 494

Between:

Sanaz Dabirvaziri

Applicant

And:

                        Tiffany N.Y. Bridal Co. Ltd. and Lloyd Chung

Respondent

INTRODUCTION

1.         This is a dispute about a contract to purchase a wedding dress. The applicant, Sanaz Dabirvaziri, says the respondents agreed to sell her a particular wedding dress for $2,000 plus taxes, for a total of $2,240. She says that after taking a deposit for 50% of the total price, the respondent emailed and said he could not provide the dress for the agreed price.

2.         The applicant seeks an order that the respondent provide the dress for the agreed price, or alternatively an order that the seller refund the $1,120 deposit plus pay her $900, which is the difference between the dress’s original contract price of $2,000 and the market price.

3.         The respondent’s principal, Lloyd Chung, says he offered the dress to the applicant for $2,000 because she told him she could get it for that price at another store. He says that after taking the deposit, he emailed the designer’s office and learned he could not provide the dress for the agreed price because the dress was too expensive. He also says he learned a few weeks later that he could not order the dress in any event, as it is only offered by the manufacturer to specific stores and his is not on that list.

4.         Both parties are self-represented.

JURISDICTION AND PROCEDURE

5.         These are the formal written reasons of the 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.

6.         The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Some of the evidence in this dispute amounts to a “he said, she said” scenario. Credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. In the circumstances here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note the recent decision Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, in which the court recognized the tribunal’s process and that oral hearings are not necessarily required where credibility is in issue. 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 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.

ISSUES

8.         The issues in this dispute are:

a.      Is the applicant entitled to refund of the $1,120 dress deposit?

b.      Is the applicant entitled to an additional $900 as compensation for the respondent’s breach of contract?

EVIDENCE AND ANALYSIS

9.         In a civil claim such as this, the applicant bears the burden of proof, on a balance of probabilities. I have only addressed the evidence and arguments to the extent necessary to explain my decision.

10.      The applicant says the respondent verbally quoted a price of $2,000 for the dress during a telephone conversation on January 16, 2018. The respondent admits this, but says he misread the style number on the price list and gave a price for the wrong dress.

11.      The invoice and receipt provided by the applicant shows that on January 21, 2018, she paid a deposit of $1,120 for the dress. This was half of the total purchase price of $2,000 plus taxes. The dress style number was listed as 8128.

12.      In a January 22, 2018 email, the respondent said he had misread the price and given an incorrect quote. He said he could not order the dress for the quoted price of $2,000. He said they would either refund the deposit, or she could buy it from his store for a “good, reasonable price”. The exact new price was not specified.

13.      On January 23, 2018, the respondent repeated his offer to refund the deposit. He said there was “nothing I can do about this order.” The applicant replied on January 25, 2018, stating that if the respondent did not agree to provide the dress for $2,000 plus taxes, she would pursue the matter in small claims court.

14.      The respondent replied that he had a right to refuse the order, as the price was wrong. He said the retail price of the dress was $4,099. He said the applicant told him another store offered the dress for a promotional price until January 21, 2018. He said she needed to provide the store name and contact information, and if they offered the dress for $2,000 then he would order it and sell it to her for that price. The applicant did not provide the requested information.

15.      In her submissions to the tribunal, the applicant said she could not provide evidence showing the dress for sale for $2,000 because special prices offered by bridal shops are confidential and they will not provide them in writing. However, there is no special rule of confidentiality applicable to bridal shops. Also, even if the applicant did not have a written document to confirm a $2,000 price offered elsewhere, she could have provided the name and address of the store. She did not do so.

16.      The applicant submits that by accepting her deposit, the respondent entered into a contract and is obligated to provide the dress for the agreed-upon price of $2,000. I do not agree. Rather, I find that the respondent was induced to enter into the contract based on the applicant’s representation that the same dress was for sale elsewhere for $2,000. Before she paid the total price and completed the contract, the respondent asked for confirmation of the other store’s price. Because the applicant has not provided this information, I find she has failed to prove that the parties had an enforceable contract.

17.      I note that the burden of proof in this dispute is on the applicant. Thus, the respondent does not have to prove that the applicant’s assertion about another stores’ price was a fraudulent misrepresentation. The respondent says he had a right to refuse to complete the contract when the applicant failed to confirm her representation that the dress was for sale for $2,000 at another store. I find that the applicant has failed to address this defense in her evidence and submissions. The reason the respondent initially agreed to sell the dress for $2,000 was because the applicant told him she could buy it for that price elsewhere, and she has failed to prove that this statement was true. Thus, she has not proved that the parties had an enforceable contract.

18.      Because the applicant has not met the burden of proving that her contract with the respondent was enforceable, I find she is not entitled to damages or an order that the respondent provide the dress for $2,000. The applicant is entitled to refund of her deposit. I therefore order the respondent to refund the applicant’s $1,120 deposit.

19.      I find the applicant is not entitled to interest on the deposit because the respondent offered to refund it the day after it was paid. The applicant says she declined the refund because if she accepted it, that action would have confirmed her agreement to terminate the contract. I disagree. The applicant’s January 25, 2018 email to the respondent cited section 54 of the SGA, which shows she knew of and asserted her statutory rights at that time. It was not legally necessary to decline the deposit, so the applicant is not entitled to interest on it.

20.      The tribunal’s rules provide that the successful party is generally entitled to recovery of their fees and expenses. The applicant was not substantially successful in this dispute, as she was offered the ordered amount of $1,120 before the dispute was filed. For that reason, I do not order any reimbursement of fees or expenses.

ORDERS

21.      I order that within 30 days of this decision, the respondent reimburse the applicant’s $1,120 dress deposit.

22.      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.

23.      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.