Date Issued: January 11, 2019

File: SC-2018-004782

Type: Small Claims

Civil Resolution Tribunal

Indexed as: stark drive llc v. Wulf, 2019 BCCRT 51

Between:

stark drive llc

Applicant

And:

Stephen Wulf

Respondent

INTRODUCTION

1.      The respondent, Stephen Wulf[1], ordered and paid for 2 electric bikes from the applicant, stark drive llc. The respondent received 3 bikes in total, two of which the applicant says are worth more money than the amount paid by the respondent. The applicant asks for an order that the respondent pay $3,500 in damages, as compensation in part for the extra bike.

2.      The respondent is self-represented. The applicant is represented by Oscar Stark, an employee or principal of the company.

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 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.

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, 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

7.      The issues in this dispute are whether the respondent owes the applicant any money for the bikes he received and, if so, how much?

EVIDENCE AND ANALYSIS

8.      On April 29, 2017 the respondent placed an order for two electric bikes with the applicant (order #287). The bikes cost $424 and $525 respectively while shipping cost an additional $300, for a total cost of $1,323, which the respondent paid. The invoice provided by the applicant included 2 courier tracking codes.

9.      The applicant provided proofs of delivery from a courier company which shows that two packages with the same tracking codes as those listed on order #287 were delivered on February 5, 2018 at 5:48 pm to the respondent’s city. No address is indicated on the proofs of delivery.

10.   The respondent acknowledges that 2 bikes were delivered to his residence. He says his name was on the boxes but also says that his roommate had assembled one bike and thrown out the packaging by the time the respondent arrived home. He acknowledges that the bikes were the wrong colours, but thought it was a mistake. The respondent says that he did not realize that he received the wrong bikes. The respondent gave one bike to his roommate and rode the other one.

11.   The applicant says that, due to an error by the courier company, all the Canadian bound bikes were mistakenly sent randomly to the Canadian purchasers instead of matching each bike to the person who ordered it. The company says that, as a result, the respondent received 2 electric bikes “as good as or better than” the ones he paid for.

12.   The applicant says that another customer, K, received one of the bikes from order #287. On February 7, 2018 K confirmed by email to the applicant that she had given the respondent “his bike” the day prior. The respondent had thus received 3 bikes in total, but only paid for 2.

13.   The applicant says that the respondent denied having received any bike “that he paid for” in a telephone conversation. The applicant traced the courier deliveries in March 2018 and, only then, learned that the respondent had already received 2 bikes.

14.   The respondent says that, during that conversation, he acknowledged receiving the bike from K and said that he would hold on to the “bikes” he had until he received the second bike he ordered. The respondent says he was told his second bike was in Ontario with another customer, who would ship the bike to the respondent within the week. The respondent says he never received the second bike he ordered.

15.   I find that the respondent knew, or should have known, that he received the wrong bikes from the applicant. Even if the respondent believed that only the colour of the bikes was wrong when he received them on February 5, 2018, he must have realized that he received the wrong bikes when another customer personally delivered a third bike to the respondent on February 6, 2018. Furthermore, the respondent acknowledges that he had more than one bike when he spoke with the respondent (sometime after receiving the bike from K on February 6, 2018).

16.   The respondent spoke with Oscar Stark 2 weeks later. The respondent says that Mr. Stark asked him how many of “his bikes” the respondent had received, to which the respondent answered “one”. He says that Mr. Stark then accused him of stealing two bikes and threatened to call the police.

17.   The applicant says that, during the conversation, it told the applicant that the courier company had confirmed delivery of 2 bikes in February 2018. The applicant says the respondent then changed his story about the bikes and acknowledged receipt of the 2 bikes.

18.   I do not accept that the respondent stole any bikes. I find that he received delivery of 2 electric bikes that were intended for another customer, and then received 1 of the 2 bikes he had ordered, for a total of 3 bikes. I find that the respondent knew that he had received an extra bike that he did not pay for. I also accept that the respondent was aware that the 2 bikes he initially received were not the same ones that he ordered.

19.   The applicant says that it asked the respondent to send photos of the bikes he received, but the applicant did not. I am not persuaded that the respondent did anything wrong or incriminating by not sending photos of the bikes he received to the applicant. Given that Oscar Stark accused the respondent of theft and threatened to involve the police in the matter, it was reasonable for the respondent not to communicate directly with the applicant any further.

20.   The applicant claims that the respondent received the most expensive bikes manufactured by the applicant, priced at approximately $2,100 USD each. It has not, however, provided any evidence showing that it sells any bike for $2,100 USD, or any evidence supporting its belief that the respondent received 2 of those expensive models of bikes. The applicant provided the name of the customer who was supposed to have received one of the bikes sent to the respondent in error, but did not provide the amount that other customer paid for the bike, or any information about that specific bike. I find the applicant has failed to prove that the bikes sent to the respondent are valued at $2,100 USD each.

21.   The applicant says, as the respondent kept the 2 most expensive models of bikes, it had to manufacture another expensive bike and express ship it to the rightful customer from China, at a cost to the applicant of $2,700 USD or $3,500 Canadian. I do not find that the respondent is responsible for paying the applicant these damages as the applicant has not proven that the respondent received the particular bike intended for that other customer. While the applicant provided the name of the other customer it did not provide copies of invoices or courier slips or any information showing which bike ended up with the respondent. In other words, the applicant has failed to prove, on a balance of probabilities, that the respondent received the more expensive bike intended for the other customer. Furthermore, any extra cost to the applicant arising from the shipping mix up is not the responsibility of the respondent.

22.   The applicant argues that the respondent should pay $3,500 in damages as part of the difference between the bikes he paid for and those he received, and as partial reimbursement of some of the applicant’s expenses arising from the respondent’s refusal to return the bikes he received in error.

23.   While I am not convinced that the respondent received 2 of the applicant’s most expensive models of bike, I accept that he received a total of 3 bikes, yet only paid for 2. In riding 1 of the bikes received in error, and giving the other away, the respondent has acted in a manner consistent with taking ownership of those bikes. The respondent has acted in the same way in using the bike received directly from K. He has received the benefit of having 3 bikes, yet he only contracted for, and only paid for, 2 bikes. It is clear that the respondent has no intention of returning any of the 3 bikes received, and the applicant has not requested the return of any of the bikes in their claim. I therefore find it appropriate that the applicant receive some compensation from the respondent for the extra bike.

24.   The applicant has failed to establish the value of the 2 bikes received by the respondent in error, or the value of any of its bikes, other than those ordered by the respondent. On a judgment basis, and using the values of those bikes ordered by the respondent ($424 and $525), I order the respondent to pay the applicant $500 for the extra bike he received.

25.   The respondent submits that the bike he received from K is poorly made and no longer works properly; it no longer charges, moves forward, and the seat is no longer adjustable. The respondent asks for a replacement bike or a refund for this bike that he paid for. The respondent says he was told by a mechanic that the bike was poorly made but provided no evidence directly from that mechanic.

26.   The respondent did not file a counterclaim to this dispute and, as such, is not entitled to a remedy in this dispute. Nor do I find it appropriate to reduce the amount owed by the respondent to the applicant for the third bike by any amount to compensate the respondent for the alleged defects in the third bike. The respondent has not proven the alleged defects or that they are the applicant’s fault. He has not set out when the alleged defects arose or provided any direct evidence from the mechanic. I decline to order any set-off relating to the alleged damages to the bike the respondent received from K.

27.   I find that the applicant is entitled to prejudgment interest under the Court Order Interest Act, as of February 6, 2018, which is the date the respondent received the extra bike.

28.   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. Although the applicant did not receive the amount of damages they claimed, I find it was successful in this dispute and, as such, is entitled to reimbursement of $125 in tribunal fees. No dispute -related expenses were claimed.

ORDERS

29.   Within 30 days of the date of this order, I order the respondent to pay the applicant a total of $631.24, broken down as follows:

a.    $500 as payment for the extra bike received,

b.    $6.24 in pre-judgment interest under the Court Order Interest Act, and

c.    $125 in tribunal fees.

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

31.   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.

32.   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.