Date Issued: January 10, 2019
File: SC-2018-003936
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Price v. Johnson et al, 2019 BCCRT 43
Default decision – non-compliance
Between:
Stefanie Price
Applicant
And:
Raymond Johnson also known as Raymond Grey and raymond grey (Doing Business As Earthformers)
Respondents
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REASONS FOR DECISION |
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Tribunal Member: |
Julie K. Gibson |
INTRODUCTION
1. This final decision of the Civil Resolution Tribunal (tribunal) has been made without the participation of the respondent Raymond Johnson also known as Raymond Grey (“Mr. Grey”) and the respondent raymond grey (Doing Business As Earthformers). I find these 2 respondents are the same person, Mr. Grey. Mr. Grey has been non-compliant with the tribunal’s directions as required, as discussed below.
2. The applicant says that she hired Mr. Grey to build a fence, and paid him a deposit, but that the fence was never built. She claims $1,344 as a refund for the deposit paid on May 10, 2018, and $500 in punitive damages.
3. In a July 8, 2018 Dispute Response, raymond grey (Doing Business As Earthformers) said only that Ms. Li was misrepresenting herself as the owner of Earthformers.
4. In his July 8, 2018 Dispute Response, Mr. Grey also said Ms. Li was misrepresenting herself as the owner of Earthformers. He said that the deposit did not involve him. Otherwise he did not respond to the claims.
5. The applicant is self-represented, as is the respondent Melody Li. While they were participating, Mr. Grey and raymond grey (Doing Business as Earthformers) were represented by Mr. Grey.
6. The applicant had originally also named Melody Li as a co-respondent, but she withdrew her claims against Ms. Li and the style of cause has been amended accordingly. The effect is that Mr. Grey is the only remaining party in the dispute and he was non-compliant, as discussed below.
JURISDICTION AND PROCEDURE
7. Section 36 of the Civil Resolution Tribunal Act (Act) applies if a party to a dispute fails to comply with the Act or its regulations. It also applies if a party fails to comply with tribunal rules in relation to the case management phase of the dispute, including specified time limits, or an order of the tribunal made during the case management phase. After giving notice to the non-compliant party, the case manager (facilitator) may refer the dispute to the tribunal for resolution and the tribunal may:
a. hear the dispute in accordance with any applicable rules.
b. make an order dismissing a claim in the dispute made by the non-compliant party, or
c. refuse to resolve a claim made by the non-compliant party or refuse to resolve the dispute.
8. These are the formal written reasons of the tribunal. The tribunal has jurisdiction over small claims brought under section 118 of the 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.
9. 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
10. The parties reached an agreement on certain issues prior to this adjudication, and those issues are not before me in this decision.
11. The first issue is whether I should proceed to decide the applicant’s claim, without Mr. Grey’s further participation, given his non-compliance.
12. The second issue is to what extent I should order Mr. Grey to pay the applicant the claimed:
a. $1,344 deposit the applicant paid, and
b. $500 in punitive damages.
EVIDENCE AND ANALYSIS
Non-compliance
13. My September 13, 2018 summary decision to hear the dispute without Mr. Grey’s participation, given his non-compliance, was previously communicated to the parties by email, through the tribunal facilitator. The details supporting that decision are set out below.
14. Mr. Grey is the non-compliant party in this dispute. He has failed to participate in the case management phase, as required by sections 25 and 32 of the Act and tribunal rules 94 to 96, despite multiple attempts by the facilitator to contact him with a request for a reply.
15. After Mr. Grey stopped participating, the facilitator made the following attempts at contact:
a. August 31, 2018 – The facilitator emailed the parties asking them to confirm their attendance at a telephone conference on September 6, 2018, before 4:00 p.m. on September 3, 2018. The email warned that failing to respond may result in the dispute being referred to a tribunal member for a decision without that party’s further participation. Mr. Grey did not respond.
b. September 5, 2018 – The facilitator emailed Mr. Grey warning him that if he failed to respond by September 6, 2018 with his representative request, the dispute would be referred to a tribunal member who may decide it without his further participation. The facilitator also phoned Mr. Grey and left him a voice mail asking him to respond. The respondent did not reply.
c. September 11, 2018 – The facilitator emailed Mr. Grey with a final warning asking him to reply indicating whether he would be attending the teleconference mediation set for September 12, failing which the dispute would be referred to a tribunal member for a decision without his further participation. Mr. Grey did not respond.
16. The facilitator referred Mr. Grey’s non-compliance with the tribunal’s rules to me for a decision as to whether I should hear the dispute without his further participation.
Should the tribunal hear the applicant’s dispute?
17. Mr. Grey provided no explanation about why he failed to communicate with the tribunal as required. I find the facilitator made a reasonable number of attempts to contact him. Parties are told at the beginning of a tribunal proceeding that they must actively participate in the dispute resolution process. I find it is more likely than not that Mr. Grey was aware of the attempts to contact him and chose not to respond.
18. The tribunal’s rules are silent on how it should address non-compliance issues. I find that in exercising its discretion, the tribunal must consider the following factors:
a. whether an issue raised by the claim or dispute is of importance to persons other than the parties to the dispute;
b. the stage in the facilitation process at which the non-compliance occurs;
c. the nature and extent of the non-compliance;
d. the relative prejudice to the parties of the tribunal’s order addressing the non-compliance; and
e. the effect of the non-compliance on the tribunal’s resources and mandate.
19. First, this claim does not affect persons other than the parties involved in this dispute.
20. Second, the non-compliance occurred prior to the substantive part of the facilitation process.
21. Third, given the facilitator’s repeated attempts at contact and Mr. Grey’s failure to respond despite warnings of the consequences, I find the nature and extent of the non-compliance is significant.
22. Fourth, I see no prejudice to the applicant in hearing the dispute without Mr. Grey’s participation. The prejudice to Mr. Grey of proceeding to hear the dispute is outweighed by the circumstances of his non-compliance. If I refused to proceed to hear the dispute, the applicant would be left without a remedy. That would be unfair.
23. Finally, the tribunal’s resources are valuable. Its mandate to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly is impaired if one party fails to participate. I find that it would be wasteful for the tribunal to continue applying resources to this dispute, such as by making further attempts to seek Mr. Grey’s participation.
24. In weighing the factors, I find the applicant’s claims should be heard. In deciding to hear the applicant’s dispute I have put significant weight on the following factors:
a. the extent of the non-compliance is significant;
b. the applicant is not prejudiced if such an order is made; and
c. the need to conserve the tribunal’s resources.
Merits of the Dispute and Damages
25. I have decided to hear the dispute without Mr. Grey’s participation. I turn to the merits of the dispute.
26. Where a respondent filed a Dispute Response but has since failed to comply with the tribunal’s directions, an adverse inference may be drawn against him. This means that if the respondent refuses to participate, it is generally reasonable to assume that the applicant’s position is correct on the issue at hand. This concept is similar to where liability is assumed when a respondent has failed to provide any response to the dispute and is in default.
27. Having said that, I reviewed the Dispute Responses filed by Mr. Grey, because they were filed prior to his non-compliance.
28. While Mr. Grey appears to contest having any role in taking the deposit from the applicant, he did not provide evidence to support his assertion. For this reason, and given his non-compliance, I draw an adverse inference against Mr. Grey.
29. I accept the applicant’s evidence that she hired Mr. Grey to construct a fence and paid him a $1,344 deposit. I find that Mr. Grey never built the fence, nor did he repay the deposit.
31. I order Mr. Grey to pay the applicant the $844 debt owing, within 10 days of this decision.
32. In her submissions, the applicant abandoned her claim to punitive damages. I dismiss the punitive damages claim.
33. 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 is entitled to reimbursement of $125 in tribunal fees and $67.36 in dispute-related expenses, which I find to be reasonable based on the receipts provided.
ORDERS
34. Within 10 days of the date of this order, I order Mr. Grey to pay the applicant a total of $1,051.13, broken down as follows:
a. $844.00 as debt owing for the deposit,
b. $14.77 in pre-judgment interest under the Court Order Interest Act, from May 10, 2018 to the date of this decision, and
c. $192.36, for $125 in tribunal fees and $67.36 in dispute-related expenses.
35. The applicant is entitled to post-judgment interest, as applicable.
36. 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. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.
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Julie K. Gibson Tribunal Member |