Date Issued: November 2, 2018

File: SC-2018-000533

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Chernenkoff v. Forster, 2018 BCCRT 683

Between:

Peter Chernenkoff

APPLICANT

And:

Mike Forster

RESPONDENT

INTRODUCTION

1)     This dispute is about the installation and servicing of a heat pump. The applicant, Peter Chernenkoff, asks for a total of $394.50 in damages. This claim is for the cost of hiring someone else to service the heat pump the respondent, Mike Forster, had installed and agreed to service, reimbursement for a thermostat, and lost energy savings. The parties are each self-represented.

JURISDICTION AND PROCEDURE

2)     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 relationships between parties that may continue after the dispute resolution process has ended.

3)     The tribunal may decide the format of the hearing, including by writing, telephone, videoconferencing, or a combination of these. Some of the evidence in this dispute amounts to a “he said, he said” scenario, in that the respondent denies that he did not properly service the heat pump. Credibility of interested witnesses, particularly where there is conflict, cannot be decided 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.

4)     In the circumstances here, I find that I am 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.

5)     The tribunal may accept as evidence information that it considers relevant, necessary, and appropriate, whether 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.

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.

ISSUE

7)     The issue in this dispute is whether the respondent must pay the applicant for the cost of hiring someone to service the heat pump, the cost of a thermostat, and lost energy savings.

EVIDENCE AND ANALYSIS

8)     The applicant bears the burden of proof on a balance of probabilities. I have commented upon the evidence and submissions only to the extent necessary to give context to these reasons.

9)     It is undisputed that the respondent agreed to supply and install a heat pump for the applicant, and that the installation included a thermostat.  The applicant says that the respondent did not install the heat pump properly.  Given the facts of this case, as discussed below, I find that I do not need to consider whether the installation was correct or address the implied warranties in section 18 of the Sale of Goods Act. 

10)  As a part of the sales and installation agreement, I find that the respondent also agreed to service the heat pump.  The respondent gave the applicant an assurance that as an authorized dealer he had the full factory backing should the unit not perform properly. For the reasons set out below, I find that the respondent did not service the heat pump as agreed.

11)  The heat pump worked when installed.  The day after the installation, it is undisputed that the heat pump stopped working. On the same day, the respondent inspected the heat pump and adjusted the thermostat. The heat pump then began working again.

12)  Three to four weeks later the heat pumped stopped working again.  I accept the applicant’s evidence that the respondent did not show up and re-inspect the heat pump, as he had agreed to do.  The applicant tried multiple times to reach the respondent. After a few days the respondent explained that a sudden family emergency took him out of the province.  At that time, the respondent asked the applicant to re-set the heat pump and explained how to do that.  I find that the applicant followed the respondent’s instructions.  The respondent agreed to check the heat pump once he returned if resetting did not resolve the problem.

13)  Ten or so days later the applicant told the respondent that the system was still not working properly.  The applicant explained that he got the heat pump running again but once the temperature dropped to around -2 degrees Celsius the pump would go into high pressure lock. The electric furnace would then come on and stay on and the heat pump would cycle every 10 minutes without allowing the applicant to vary the heat inside more than a degree or so. 

14)  The respondent again told the applicant when he would come to inspect the system.  The respondent again did not show up.  The respondent said that he did not go because the applicant did not confirm the date. I accept the respondent’s evidence on this point as he specifically noted that he needed to see the thermostat, which I find was inside the home.

15)  The respondent then offered to meet on a further date.  The applicant confirmed the meeting. The applicant says that the respondent did not show up. The respondent says that he did go and that no one was there.  The respondent also says that the heat pump was running and that trouble codes did not show a lock out. I prefer and accept the applicant’s evidence.  My reasons follow.

16)  I find that the applicant would not have left on the rescheduled day after following up diligently with the respondent. The applicant also says that the heat pump was off at the time of the rescheduled appointment and that the respondent could not have inspected it.  Correspondence from the time supports the applicant’s evidence.  The applicant told the respondent that the heat pump was off for three weeks waiting for the respondent. I accept that the applicant got the heat pump working at one point, but because it was cycling and locking out he turned the heat pump off so that he did not damage it.

17)  If the respondent had attended, I would expect to see that mentioned in the correspondence following the agreed date.  This is especially so because the applicant references in the communication the failure to attend twice.  In reply, the respondent does not say that he attended when no one was home and checked the heat pump, as I would have expected. Additionally, in rescheduling the respondent specifically told the applicant that he needed access to the thermostat. If the respondent had attended as he says, I would have expected to see him raise with the applicant that he still needed access to the thermostat to complete the inspection.

18)  When the respondent did not show up at the last service appointment the applicant reasonably hired another certified HVAC repair company to service the heat pump.  That company invoiced for $199.50 for servicing the heat pump and adjusting the thermostat.

19)  Following that service, the applicant sent the respondent the $199.50 invoice and requested a refund for the total amount.  The applicant also requested the respondent refund $45 for the thermostat that was not installed with the heat pump. The respondent refused to pay the cost of the invoice except to offer a $40 refund for a sensor, different from the thermostat, that the respondent may have failed to install.

20)  The respondent says that the manufacturer would have paid for the $199.50 invoice if the applicant had hired an approved company.  I find the fact that the manufacturer may have paid for the invoice is not determinative. In this dispute, what matters is that the respondent agreed to service the heat pump and did not do that. I find the applicant’s decision to hire another repair company was reasonable given the delays.  I allow the applicant’s claim for $199.50.

21)  The applicant also claims $45 for a thermostat. I find that the initial purchase and installation agreement between the parties included an upgrade thermostat. The parties agree that the respondent did not install the thermostat. I find that the thermostat was not installed by agreement between the parties because the applicant already had a better thermostat, which was discovered during installation. The applicant should be reimbursed for that part of the installation that the parties agreed to change. I allow the applicant’s claim for $45.

22)  The applicant also claims $150 for lost energy savings. It is undisputed that the installed heat pump, when running, saves energy as compared to the applicant’s furnace system. Many factors arguably could affect the energy savings and I find that the claim for $150 has not been proven in full. However, I accept that the heat pump was off for at least three weeks.  As well, since both parties provided some evidence, though differing, of the overall potential energy savings I find that an award for some lost energy savings is appropriate. On a judgment basis, I allow $75 for lost energy savings.

23)  Given the above, I find that the respondent must pay the applicant $319.50 plus pre-judgment interest under the Court Order Interest Act (COIA), from December 2017.

24)  The applicant also claims $10 for registered mailing costs supported by a receipt. I find the claimed cost for dispute-related expenses reasonable in the circumstances and I allow it.

25)  The applicant was substantially successful.  Given that, I find that the respondent should reimburse the applicant $125 for his tribunal fees.

ORDERS

26)  I order that within 30 days of this decision, the respondent pay the applicant a total of $458.07 broken down as:

(a)  $199.50 for the cost of servicing the heat pump and thermostat,

(b)  $45.00 for reimbursement of the thermostat,

(c)  $75.00 for lost energy savings,

(d)  $3.57 in pre-judgment interest under the COIA,

(e)  $10.00 in dispute-related expenses, and

(f)    $125.00 for tribunal fees.

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

28)  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.

29)  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.