Date Issued: January 7, 2019

File: SC-2018-005123

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Doyle et al v. Kristiana Bailey (Doing Business As Kristiana’s Consignment Fashion Boutique), 2019 BCCRT 23

Between:

Kelsey Doyle and Nancy Doyle

Applicants

And:

Kristiana Bailey (Doing Business As Kristiana’s Consignment Fashion Boutique)

Respondent

INTRODUCTION

1.      The respondent, Kristiana Bailey (Doing Business As Kristiana’s Consignment Fashion Boutique), operates a consignment clothing store in Fort Nelson. The applicant, Kelsey Doyle, entered into an agreement with the respondent to sell some of her clothing and accessories. Kelsey Doyle’s mother, the respondent Nancy Doyle, dropped the items off.

2.      While some of the items sold, the respondent donated many to a local charity thrift store. The respondent says that the parties’ contract allowed her to do so because the applicants failed to pick up the items when requested. The applicants say that they did not give permission to donate the items and claims $3,800, which they say is the market value of the items that the respondent donated. The applicants also seek an order that the respondent provide documentation about what happened to each of the items.

3.      The applicants are represented by Kelsey Doyle. The respondent is each self-represented.

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 118 of the Civil Resolution Tribunal 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. 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.

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 make one or more of the following orders:

a.    order a party to do or stop doing something;

b.    order a party to pay money;

c.    order any other terms or conditions the tribunal considers appropriate.

ISSUES

8.      The issues in this dispute are:

a.    Did the parties’ agreement allow the respondent to donate the items to a local charity?

b.    If not, how much should the respondent pay the applicants for the donated items?

EVIDENCE AND ANALYSIS

9.      In a civil claim such as this, the applicant must prove their case on a balance of probabilities. While I have read all of the parties’ evidence and submissions, I only refer to what is necessary to explain and give context to my decision.

10.   For the reasons that follow, I dismiss the applicants’ claims. I find that the respondent did not breach the contract.

11.   On July 26, 2017, Nancy Doyle dropped off clothing items with the respondent on behalf of Kelsey Doyle. The parties dispute how many items Nancy Doyle dropped off. The respondent says it was around 200 and Kelsey Doyle says it was well over 300. I do not need to decide how many items of clothing Kelsey Doyle consigned because it does not impact my decision.

12.   The respondent presented Nancy Doyle with their standard contract. There is a dispute about whether Nancy Doyle signed it or not, but the parties agree that they all considered themselves bound by its terms.

13.   The contract says that the respondent will display items for up to 8 weeks. The contract says that the respondent will choose what they will try to sell. The respondent will let the consignor pick up anything that they do not want to sell or give the items to charity if the consignor consents. If any items do not sell, the contract says that the respondent will give the consignor the opportunity to pick the items up, and if the consignor does not pick them up, the respondent will donate the items to charity.

14.   The respondent sold 54 of the items. Kelsey Doyle received $336 for these sales.

15.   The respondent decided not to try to sell a significant number of the items, and set them aside for Kelsey Doyle to pick up. The parties exchanged text messages about Kelsey Doyle picking the items up in September and November, 2017, and in February 2018.

16.   The contract requires the respondent to give Kelsey Doyle a specific time that she should pick up the items. On November 21, 2017, Kelsey Doyle stated that she would come the next day and asked for store hours. The respondent replied that she could come any time after lunch. In February 2018, the respondent reminded Kelsey Doyle that if clients do not pick up their clothes, she donates them. Kelsey Doyle said she still wanted to pick up what she considered the expensive items, but never did. In March 2018, the respondent donated most of the remaining items to a local charity thrift store.

17.   The respondent says that she sent a friend to pick up the items a number of times in November, during the store’s business hours, but the store was not open. The respondent’s friend provided a statement confirming that she went to the store on Kelsey Doyle’s behalf. However, she does not recall when she went and there is no evidence that Kelsey Doyle or anyone else went to the store after lunch on November 22, 2017, when the parties made specific arrangements for Kelsey Doyle to go.

18.   On May 31, 2018, Kelsey Doyle and a friend entered the store when the respondent was not around and took Kelsey Doyle’s items that were on display and tagged with Kelsey Doyle’s customer number. The applicants provided photographs of what they took.

19.   After May 31, 2018, the respondent found several more of Kelsey Doyle’s items in the store, which she returned to Kelsey Doyle through a third party. The respondent also went to a thrift store and found more of Kelsey Doyle’s items, and returned them through the same third party. Kelsey Doyle does not dispute receiving these items.

20.   The applicants claim that the respondent breached the contract by donating the items. I disagree. The contract gave the respondent the right to dispose of items that the respondent did not sell as long as the respondent gave the applicants a specific time to pick them up. I find that the respondent gave the applicants a specific time on November 21, 2017. The applicants failed to pick up the items and have not given an explanation for why they did not pick them up on the arranged date. In addition, the respondent did not donate the items for more than 3 months after that date. I do not agree with the applicants that the contract failed to get the applicants’ consent prior to donating. The respondent gave Kelsey Doyle a specific time to pick the items up and confirmed that she donated items that customers do not pick up. In response, Kelsey Doyle said she only wanted the expensive items and then never followed up, which I find was consent for the respondent to donate the remaining items.

21.   With respect to the applicants’ demand that the respondent provide a more detailed accounting of what she did with each item, there is no term in the contract requiring the respondent to keep detailed records of each item. I find that the evidence that the respondent provided in this dispute, which includes a copy of the store’s ledger of the applicants’ account, sufficiently explains what happened to the items that the applicants consigned with the respondent. The applicants point out that the respondent has been unable to account for every item, which is true. However, I find that the respondent’s explanation that she did not keep track of what she donated is an adequate explanation. There were several months when an unknown number of items were in a thrift store for sale.

22.   Given my conclusions above, I dismiss the applicants’ claims.

23.   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. The applicants have not been successful. I decline to order that the respondent reimburse the applicants for any of their tribunal fees or dispute-related expenses.

24.   The respondent claims $1,000 for her time and $500 in consultant fees. In general, claims for time spent on a dispute are not generally allowed. In addition, tribunal rule 132 says that except in extraordinary cases, the tribunal will not order one party to pay another party’s fees for getting assistance from a representative. This follows from the general rule in section 20(1) of the Act that parties are to represent themselves in tribunal proceedings. I find that there is nothing extraordinary in this case that would justify an award of fees for a representative. I dismiss the respondent’s claim for consultant fees and time spent on this dispute.

ORDER

25.   The applicants claims, and this dispute, are dismissed. 

26.   The respondent’s claim for dispute-related expenses is dismissed.