Date Issued: November 2, 2018

File: SC-2017-006242

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Mckay v. Mclaughlin, 2018 BCCRT 684

Between:

Corinne Mckay

Applicant

And:

Mike Mclaughlin

Respondent

And:

Corinne Mckay

Respondent by counterclaim

 

REASONS FOR DECISION
Tribunal Member:	Julie K. Gibson

INTRODUCTION

1)     This dispute is about the division of personal property, including engagement rings, after the relationship between the parties ended abruptly.

2)     The applicant Corinne Mckay says the respondent Mike Mclaughlin borrowed her credit card to purchase engagement rings, and then failed to pay her back.  Ms. Mckay seeks an order that Mr. Mclaughlin refund her the $3,490 cost of the rings and $694.00, being one year’s interest at the credit card’s 19.9% rate.

3)     Mr. Mclaughlin counterclaims, saying that, when their relationship ended, Ms. Mckay failed to return some of his personal property.  He asks for an order to have the property returned, or to have Ms. Mckay pay the $4,900 replacement value.

4)     The parties are each self-represented.

JURISDICTION AND PROCEDURE

5)     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 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.  The assessment of what is the most likely account depends on its harmony with the rest of the evidence.  In these circumstances, 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 decision in 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.

7)     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.

8)     Although the parties were in a romantic relationship, the evidence is that they only lived together for four months.  Neither party suggested their dispute would fall under the Family Law Act (FLA), which addresses division of property between unmarried spouses who have lived together continuously in a marriage-like relationship for at least two years.  I find that the FLA does not apply to this dispute.

9)     Under tribunal rule 126, in resolving this dispute the tribunal may make one or more of the following orders:

1)    order a party to do or stop doing something;

2)    order a party to pay money;

3)    order any other terms or conditions the tribunal considers appropriate.

ISSUES

10)  The issue in this dispute is whether Mr. Mclaughlin agreed to pay Ms. Mckay for the two engagement rings purchased using her credit card. If he did, I will consider what remedy is appropriate.

11)  On the counterclaim, the issue is whether Mr. Mclaughlin is entitled to the return of his belongings or payment for their replacement cost.

EVIDENCE AND ANALYSIS

 

12)  Ms. Mckay says Mr. Mclaughlin told her he wanted to buy an engagement ring and ask her to marry him.  He did not have a credit card, so asked to borrow hers. She agreed, on the condition that he repay her in full.  She says they agreed to a payment plan of $500 per month until the total was paid.

13)  Later, Mr. Mclaughlin ordered a matching engagement ring for himself, and also charged it to Ms. Mckay’s credit card.

14)  The parties then became engaged to be married but, shortly thereafter, the relationship ended.

15)  Ms. Mckay has possession of both engagement rings.  She says that once Mr. Mclaughlin pays her for them, he can have them back.

16)  Mr. Mclaughlin argues the rings were a “joint purchase” and that there was no agreement that he would pay for them.  He also argues, in the alternative, that he should not be responsible for paying “for her entire ring”.  He says Ms. Mckay pressured him to make payments for the rings.  There is no evidence that he has paid Ms. Mckay anything for the rings, and I find that he has not.

17)  Ms. McKay relies on text messages, emails and voice recordings that she says show Mr. Mclaughlin accepted responsibility for the engagement ring debt on her credit card.  Mr. Mclaughlin disagrees, saying the recordings were taken without his consent and that they may be incomplete or taken out of context.  He raises a preliminary issue about whether the recordings should be considered as evidence.  Mr. Mclaughlin does not identify any particular facts in the recordings that he says are incorrect, or any content that he says is missing.

18)  I find the recordings admissible as evidence in this dispute.  Under section 42(1)(a) of the Act, the tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not that information would be admissible in a court of law.  In British Columbia, it is legal for one party to record a conversation even if the other party is unaware of the recording (see Lam v. Chiu 2012 BCSC 440). The reliability and quality of the recording will go to the weight I place on it.

19)  I accept Ms. Mckay’s evidence on the issue of the payment for the engagement rings.  Mr. Mclaughlin did not contest that he agreed to purchase the rings for the purpose of a wedding proposal, and the parties agree he proposed marriage and that, for a time, the couple were planning their wedding.  The recordings are consistent with the other evidence available, including the credit card bill and text message evidence, demonstrating Mr. Mclaughlin’s intent was to pay for the rings.

20)  I find that Mr. Mclaughlin agreed to pay the cost for the engagement rings, both of which were charged to Ms. Mckay’s credit card in June 2017.

21)  Based on the credit card bill filed in evidence, I find that two engagement rings, total cost of $3,490.28, were charged to Ms. Mckay’s credit card.  I also find that the credit card has a 19.9% interest rate.

22)  Having found that Mr. Mclaughlin agreed to pay Ms. Mckay the cost of the engagement rings, I order that he repay her $3,490.28 within 10 days of this decision.

23)  I was not provided with any evidence that the charges for the rings remain on Ms. Mckay’s credit card at the 19.99% interest rate.  Therefore, Ms. Mckay has not proved that she continued to pay that rate.  Therefore I decline to award the contractual rate for longer than one month.  I order that Mr. Mclaughlin pay one month’s interest at the credit card rate, $57.08, and interest under the Court Order Interest Act thereafter.

24)  I now turn to the question of what should become of the rings. In British Columbia, engagement rings are treated as conditional gifts in contemplation of marriage (see P.S. v. H.R. 2016 BCSC 2071 at paragraph 69).  If the condition of marriage fails, regardless of who is responsible for the end of the engagement, the rings must be returned unless a contrary intention is demonstrated.  I have no evidence of a contrary intention on the part of either party.

25)  Here, I find that Mr. Mclaughlin decided to purchase two rings, with matching pink gemstones, to facilitate his engagement to Ms. Mckay.

26)  As such, upon payment by Mr. Mclaughlin to Ms. Mckay for the amount ordered herein, Ms. Mckay will have 10 days to return the engagement rings to him.  If Mr. Mclaughlin declines the return of the rings or does not make himself reasonably available for their return within 10 days after payment, Ms. Mckay can keep both rings and dispose of them as she sees fit. 

Counterclaim

27)  Mr. Mclaughlin counterclaims for $4,900 in what he calls “stolen property”, but describes items that were in their shared apartment after the relationship ended.

28)  Mr. Mclaughlin says Ms. Mckay kept his couch, matching chair, Playstation, Sony smartbox, microwave, Sony 5.1 Digital surround system, 1 set of Cuisinart triple wall professional pots and pans, and a 58 inch LG Flatscreen TV.  He says the replacement value of these items is between $4,500 and $4,900.

29)  In his Dispute Response, Mr. Mclaughlin submits he would file listings of his property on Letgo and other websites showing that Ms. Mckay offered them for sale. However,Mr. Mclaughlin only filed one screen shot, showing a brown leather couch for sale for $1,000.  The screen shot does not reveal who posted the photograph, or where, nor whether the item ever sold.

30)  Mr. Mclaughlin did not provide receipts or other evidence of the value of the items he says were taken. 

31)  Ms. Mckay says that when Mr. Mclaughlin moved in with her, he threw out a number of her personal items including patio chairs ($40), patio glass table ($20), shelving unit ($100), DVD/CD rack holder ($50), toaster oven ($35), bedding ($250), vacuum ($75), microwave ($50), large big screen tv ($4,999) and Ikea futon ($200).  Mr. Mclaughlin did not contest this evidence.

32)  Ms. Mckay agrees that she kept Mr. Mclaughlin’s couch and chair initially, but says she gave them both back to him on December 11. She provided text messages which show that the couch and chair were offered to be returned to Mr. Mclaughlin.

33)  Ms. Mckay also filed a witness statement from Alex Forman, who was present at her address on October 25, 2017 and observed Mr. Mclaughlin, three other people and two trucks attend to pick up his belongings and to drop off Ms. Mckay’s tires and couch.  Mr. Forman says that Mr. Mclaughlin said he would return in half an hour to pick up his remaining belongings, but he later texted to say he would not be coming back.

34)  In a recording made after Mr. Mclaughln picked up his belongings on October 25, 2017, Ms. Mckay asks what he wants to do about the rest of his stuff and he says “Throw it away.  It doesn’t matter.”  As well, Mr. Mclaughlin told Ms. Mckay he was going to counterclaim against her for “twice as much” as her claim, suggesting an unprincipled approach to how he values his counterclaim.

35)  Ms. Mckay provided evidence, both through text message and photographs, showing that Mr. Mclaughlin was given ample opportunity to pick up his belongings, and that he attended at least once with two trucks and picked up a number of items.

36)  I find that Ms. Mckay made reasonable attempts to ensure that Mr. Mclaughlin could retrieve all of his belongings and, to the extent that he failed to pick up remaining items, she may now dispose of them as she sees fit.

37)  I am troubled by Ms. Mckay’s evidence where she admitted to taking “a ring that was equivalent to the one that was charged” to her credit card, from Mr. Mclaughlin.  If Ms. Mckay is in possession of another ring belonging to Mr. Mclaughlin, she must also return that to him within 10 days of receiving payment from him as ordered below.

38)  Otherwise, given the lack of evidence to establish, on a balance of probabilities, that Ms. Mckay kept other items belonging to Mr. Mclaughlin, and lack of evidence to support the value claimed, I dismiss the counterclaim.

Tribunal Fees

39)   Under section 49 of the Act, and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. I find the applicant Ms. Mckay has been largely successful is entitled to reimbursement of $125 in tribunal fees. I dismiss Mr. Mclaughlin’s claim for tribunal fees.

ORDERS

40)       Within 10 days of the date of this order, I order the respondent Mr. Mclaughlin to pay the applicant Ms. Mckay a total of $3,722.78, broken down as follows:

a)    $3,490.28 as reimbursement for the engagement rings;

b)    $57.08 in credit card interest for the engagement ring charges;

c)    $50.42 in pre-judgment interest under the Court Order Interest Act, and

d)    $125.00 in tribunal fees.

41)  Upon payment from Mr. Mclaughlin for the $3,722.78, Ms. Mckay will have 10 days to return the engagement rings, and any ring she took in lieu of the engagement rings, to him. 

42)  If Mr. Mclaughlin declines the return of the rings or does not make himself reasonably available for their return within 10 days after payment, Ms. Mckay can keep the rings and dispose of them as she sees fit. 

43)  The applicant is entitled to post-judgment interest, as applicable.  

44)  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.

45)  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.