Date Issued: November 20, 2018

File: SC-2017-006929

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Herbert v. SKILS Sea Kayak Instruction and Leadership Systems Ltd.,

2018 BCCRT 747

Between:

Leigh Herbert

Applicant

And:

SKILS Sea Kayak Instruction and Leadership Systems Ltd.

Respondent

INTRODUCTION

1)     The applicant, Leigh Herbert, paid $1,470 to the respondent, SKILS Sea Kayak Instruction and Leadership Systems Ltd., for a kayaking and guiding course. The applicant did not attend the course and claims for reimbursement of the cost of the course. The respondent says the applicant did not cancel more than 30 days before the course, as per the respondent’s cancellation policy. As such the respondent says it owes nothing.

2)     The applicant is self-represented. The respondent is represented by JF Marleau, an employee or principal.

JURISDICTION AND PROCEDURE

3)     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.

4)     The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.

5)     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.

6)     Under tribunal rule 126 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

7)     Should the respondent reimburse the applicant for any part of the cost of the course and, if so, in what amount?

EVIDENCE AND ANALYSIS

8)     In a civil claim such as this, the applicant bears the burden of proof, on a balance of probabilities. I have only referenced the evidence and submissions as necessary to give context to my decision.

9)     The applicant and respondent had been in touch by email about the applicant’s interest in a guiding course. The respondent emailed the applicant about a guiding course running from July 8 to 16, 2017, with limited spots available. On May 30, 2017 the applicant e-transferred a deposit of $350 to the respondent for the course.

10)  On June 8, 2017 the applicant emailed the respondent that he could no longer afford the course, given the extra expenses of travel, food, and equipment rental. The respondent and the applicant spoke on the telephone the same day.

11)  The respondent’s cancellation policy states that a full refund will be provided if a student cancels more than 30 days before the start of the course. No refunds are issued for cancellations within 30 days of the start of the course. I note that June 8, 2017 was exactly 30 days prior to July 8, 2017. The policy is available on the respondent’s website.

12)  The applicant says that, during the June 8, 2017 conversation, the respondent did not offer to refund the applicant’s $350 deposit. The respondent says that he did make that offer during the telephone conversation. Both parties agree that, during the telephone conversation, the respondent suggested ways he could make the course more affordable for the applicant including delayed payment, carpooling, or discounts. The applicant says that no clear agreement was reached during the telephone conversation.   

13)  On June 8, 2017 the respondent emailed the applicant that the total cost of the course would be $1,468.95, including tax. He asked for payment of $1,118.95, the balance owing for the course. He asked for payment a second time in a June 15, 2017 email.

14)  The applicant sent an undated money order for $1,200 to the respondent sometime between June 15 and 19, 2017. On June 19, 2017 he asked the respondent what kind of financial assistance he would be receiving for the course.

15)  Over the next several emails the parties continued to discuss what type of assistance the respondent would provide the applicant. The applicant was unsure if he wanted to continue to take the course. The respondent offered to refund the applicant’s course fee, minus the deposit of $350 if the applicant wanted to cancel the course. Eventually the respondent agreed to waive its usual equipment rental fee and the applicant thanked the respondent.  

16)  A few days before the course the applicant told another employee of the respondent he did not think he could attend the course, due to stress and overwork. The applicant travelled to the course location, but did not attend the morning of the first day of the course. He arrived at the course in the afternoon of the first day, returned the course materials, and requested the return of his bank draft in the amount of $1,200. The employee denied the applicant’s request.

17)  On July 14, 2017 the applicant emailed the respondent and asked for a refund or return of the bank draft he provided. The respondent said it would not refund any of money, as per the cancellation policy.

18)  The applicant argues that he felt pressured to sign up for, and pay for the course.  He says that he felt unsupported by the instructor, and that the course would not provide him with the accreditation he needed. He argued that he tried to cancel his attendance at the course on June 8, 2017, within the allowed cancellation period, but that the respondent did not respect his wish to cancel.

19)  A contract is enforceable because it represents a voluntary agreement by the parties to the terms of the contract. One of those terms in this case is the cancellation policy. The applicant is, in effect, arguing that he was pressured to sign up for the course and not to cancel within the cancellation period. I am not persuaded that the applicant was under duress in signing up for, or not cancelling his participation in, the course. He took active steps to transfer funds to the respondent and, subsequently, to obtain and send a money order. There is no indication of duress. The cost of the course was clearly set out in the respondent’s email. By sending the respondent a money order for the cost of the course the applicant showed that he agreed to pay that cost. I find that the applicant voluntarily entered into the contract with the respondent. He is thus bound by the cancellation policy. 

20)  I acknowledge the applicant’s argument that he was unsure what, if any, financial assistance the respondent would provide. Given the content of the emails between the two, it appears that the potential financial assistance would consist of some type of subsidy of food or accommodation cost, or equipment rental. In any event, any confusion was remedied when the respondent offered to waive the applicant’s equipment rental fee and the applicant accepted that offer.

21)  The applicant says that the respondent should at least be held to his previous offer to refund the cost of the course, minus the deposit of $350. He argues that he did not get the benefit of the training and should therefore not have to pay for it.

22)  While the respondent did offer to provide the applicant with a partial refund, this was well before the course started. The applicant did not accept that offer at the time. The respondent later revoked the offer, by refusing to return the applicant’s money order, well after the course had started. I do not find that the respondent is bound by the previous offer of a partial refund. The applicant is bound by the cancellation policy.  He did not cancel his participation in the course within the specified cancellation period and thus, is not entitled to a refund of his course fee.

23)   The applicant has not proven, on a balance of probabilities, that he is entitled to a return of any part of the $1,470 he paid for the course put on by the respondent.

24)  As the applicant was not successful in this dispute, I find that he is not entitled to reimbursement of tribunal fees or dispute-related expenses, in accordance with the Act and the tribunal’s rules.

ORDER

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