Date Issued: December 17, 2018

File: SC-2017-006908

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Housewise Construction Ltd. dba Segal Disposal v. 0970153 BC Ltd., 2018 BCCRT 863

Between:

Housewise Construction Ltd. dba Segal Disposal

Applicant

And:

0970153 BC Ltd.

Respondent

INTRODUCTION

1.      This dispute is about payment for contracted waste disposal services. The applicant, Housewise Construction Ltd. dba Segal Disposal, and the respondent, 0970153 BC Ltd., entered a contract on February 10, 2015 for a 5-year term. The applicant claims the respondent breached the parties’ contract, having failed to make any payments after July 2017, and claims $2,878.09 in debt and liquidated damages.

2.      In its Dispute Response filed at the outset of this proceeding, the respondent stated that the contract was a 1-year term only and that it asked the applicant to remove the waste bin in July 2017. However, the respondent chose not to provide any evidence or submissions for this decision, despite being invited to do so on multiple occasions.

3.      The applicant is represented by Samuel Au, an employee or principal. The respondent was represented by a now-former employee.

JURISDICTION AND PROCEDURE

4.      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.

5.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. 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 that in Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, the BC Supreme Court recognized the tribunal’s process and found that oral hearings are not necessarily required where credibility is in issue.

6.      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.

8.      As referenced above, the respondent chose not to provide evidence or submissions for this decision, despite the tribunal staff inviting them to do so on multiple occasions. Parties are required at the outset of the tribunal process to provide a contact and how that person may be reached. Parties are also told they must keep the tribunal updated with any change in contact information. In this case, the tribunal learned in September 2018 that the respondent’s chosen representative no longer worked for the respondent. The staff then contacted the respondent directly twice to invite them to participate, with no response.

ISSUE

9.      The issue in this dispute is whether the respondent owes the applicant the claimed debt and liquidated damages under their waste disposal services contract.

EVIDENCE AND ANALYSIS

10.   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 submissions below as necessary to explain my decision.

11.   I find it is undisputed that the applicant continued to provide waste disposal services to the respondent through November 11, 2017. The applicant claims $1,271.59 in debt, $1,449 in liquidated damages (12 months at $115 per month), and $157.50 as a “bin removal fee” ($150 plus GST).

12.   The parties’ February 10, 2015 waste disposal services contract, effective February 1, 2015, is for monthly service of 1 “size 3” waste bin, at $50 per month. The applicant’s invoicing records indicate that at some point the monthly rate went up to $115, which is undisputed given the respondent chose not to provide any evidence. I accept the applicable monthly rate is $115 per month, plus tax. The contract sets a fee of $150 for bin removal, plus tax. It also provides for extra charges for locks and keys, and for payment of “additional charges” for materials that require special handling or exceed the weight limit. Some of these lock charges are part of the applicant’s debt claim, along with a bin removal charge. The contract also provides for 2% monthly interest (or 24% per year) on all accounts overdue past 30 days.

13.   The respondent sent the applicant a registered mail letter on October 19, 2017, stating it was “formal notice of cancellation”. The person who signed the letter wrote they were the new owner and had no contractual obligations with the applicant. While the new owner personally did not have those obligations, the respondent company did.

14.   Contrary to the respondent’s Dispute Response statement, the contract is clear that it is for a 5-year term, which is printed on the second page of the contract under the heading “Term”. The first page of the contract, which bears the signatures of the parties’ representatives, expressly states that the terms on the second page were read and agreed upon. This means the contract was to expire on January 31, 2020.

15.   The contract requires 30 days’ written notice, by registered mail, between 90 and 120 days before the expiration of the existing term. This means that the respondent could only cancel the contract in mid to late 2019. The October 19, 2017 notice was not compliant with the terms of the contract. I therefore find that under the contract the applicant was entitled to accept the termination and claim 12 months’ of liquidated damages.

16.   I find the $1,271.59 debt claim is supported by the applicant’s statement of account in evidence, which I find shows charges consistent with the parties’ contract. Again, the respondent did not dispute this evidence.

17.   The contract also includes a liquidated damages clause, which allows the applicant to bill 12 months of service if the customer (the respondent) terminates the contract early. Liquidated damages are a contractual pre-estimate of the damages suffered by a party in the event of a breach of contract.

18.   On November 30, 2017, the applicant issued the respondent an invoice for 12 months’ service as liquidated damages, at $115 per month, plus $150 as bin removal, plus $76.50 in GST. This invoice totaled $1,606.50. With the respondent’s outstanding debt balance, the respondent’s total balance was $2,878.09, the amount claimed in this dispute.

19.   I acknowledge prior decisions have found disposal service contracts are onerous. However, the court in Tristar Cap & Garment Ltd. v. Super Save Disposal Inc., 2014 BCSC 690 considered similar language involving the applicant and found the contract enforceable. While I am not bound by other tribunal decisions, I am bound by the court’s decision in Tristar (for similar reasoning see also: Super Save Disposal Inc. v. Paul’s Metal Service Inc., 2018 BCCRT 191, Super Save Disposal Inc. v. Gill’s Dream Enterprise Ltd., 2018 BCCRT 298, and Super Save Disposal Inc. v. K.M.I. Holdings Ltd., 2018 BCCRT 285). I agree with the above reasoning, and adopt it. The parties’ contractual terms are enforceable.

20.   I therefore find that under the parties’ contract, in addition to the $1,271.59 in debt, the applicant is entitled to the $157.50 bin removal charge and the $1,449 in liquidated damages as claimed. I order the respondent to pay the applicant the $2,878.09 claimed.

21.   The applicant in its evidence claims contractual interest, which as noted above is 24% per year. This applies only to the $1,271.59 debt claim and the $157.50 bin removal claim. I order 24% interest on these amounts, from November 30, 2017, the date I consider most reasonable given the applicant’s invoicing. The interest payable on $1,429.09 equals $358.95. The applicant is entitled to pre-judgment interest under the Court Order Interest Act (COIA) on the liquidated damages award of $1,449, from December 30, 2017, which equals $18.46.

22.   In accordance with the Act and the tribunal’s rules, as the applicant was successful I find it is entitled to reimbursement of $125 in tribunal fees. There were no dispute-related expenses claimed.

ORDERS

23.   Within 14 days of this decision, I order the respondent to pay the applicant a total of $3,380.50, comprised of:

a.    $1,429.09 in debt,

b.    $358.95 in contractual pre-judgment interest on the debt, at 24% per year,

c.    $1,449 in liquidated damages,

d.    $18.46 in pre-judgment interest under the COIA on the liquidated damages award, and

e.    $125 in tribunal fees.

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

25.   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.

26.   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.