Date Issued: December 18, 2018

File: SC-2018-003863

Type: Small Claims

Civil Resolution Tribunal

Indexed as: FOLIVI v. TANVEER, 2018 BCCRT 875

Between:

JOHN FOLIVI

APPLICANT

And:

KASHIF TANVEER

RESPONDENT

INTRODUCTION

1.      This is a dispute about the private sale of a cell phone that the applicant, John Folivi, purchased from the respondent, Kashif Tanveer. The applicant claims a refund of $700 paid for the phone and an order that the RCMP place the respondent on a watch list. The parties are 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. 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.

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.

ISSUES

7.      Did the respondent sell a counterfeit phone, and if so, what is the appropriate remedy?

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 replied to the respondent’s Facebook advertisement for a brand-new Samsung Galaxy S9+ cell phone with accessories. The parties negotiated a sale price of $700. The applicant and respondent met. I find that the applicant bought the phone for the agreed price after thoroughly inspecting it for physical damage and inspecting the functions and accessories.

10.   The respondent’s sale of the phone to the applicant was a private sale. It was private because the respondent is not in the business of selling phones, and the parties do not suggest otherwise. As a private sale, section 18(b) of the Sale of Goods Act does not apply and there is no implied or legislated warranty for the buyer that the item will be of saleable quality. In other words, the sale was “buyer beware.”

11.   Shortly after buying the phone the applicant contacted the respondent and requested a refund, alleging the phone was counterfeit. The applicant refused and said the phone was not counterfeit.

12.   Responsibility for assessing an item’s condition before buying rests with the buyer. Generally, in a private sale such as this one, a buyer must beware. Here, the applicant personally inspected the phone. The applicant chose not to have a professional inspect the phone before buying it.

13.   In a private sale, there can be no claim based on an innocent misrepresentation. The applicant must prove that the misrepresentation was negligent or fraudulent. In either case, the applicant must prove that the representation made was untrue.

14.   If a buyer can show that there was a breach of contract, fraud, non-innocent misrepresentation, a warranty, or a known latent defect that was not discoverable through reasonable inspection or inquiries, buyer beware will not apply. Here, the applicant is alleging breach of contract, misrepresentation or fraud. The applicant says that the respondent knowingly sold him a counterfeit phone.

15.   On balance, I am not satisfied that the respondent sold the applicant a counterfeit phone. The evidence before me about authenticity is a video showing the International Mobile Equipment Identity (IMEI) number on the phone is different than a phone box. Assuming the phone and the box were both provided by the respondent, the phone being in a different box does not prove the phone is counterfeit.

16.   Furthermore, the video shows an SN number on the phone screen that matches the serial number on the box in the video. On the evidence, I find that the applicant has not proven the phone is counterfeit.

17.   I decline to order the RCMP to place the respondent on a watch list, which is not within the tribunal’s jurisdiction, and given my conclusion above would not be appropriate in any event

18.   For these reasons, I find the applicant has not proved his claims.

19.   As the applicant was unsuccessful in his claims, under the Act and the tribunal’s rules I find the applicant is not entitled to reimbursement of tribunal fees.

ORDERS

20.   I dismiss the applicant’s claims and this dispute.