Date Issued: February 7, 2019

File: SC-2018-001491

Type: Small Claims

Civil Resolution Tribunal

Indexed as: J.P. v. K.P. (dba ABC Daycare), 2019 BCCRT 153

Between:

J.P.

Applicant

And:

K.P. (Doing Business As ABC Daycare)

Respondent

INTRODUCTION

1.      This dispute is about a refund for unused daycare services. The applicant, J.P., says the respondent, K.P. (Doing Business As ABC Daycare), terminated the applicant’s childcare agreement and refused to issue a refund.

2.      The respondent says there are no refunds and that the applicant’s son C broke a mirrored door that has a replacement value in excess of the $315 claimed.

3.      The parties are each self-represented. I have anonymized this decision to protect the identity of the applicant’s minor child C.

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 (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 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.

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.

ISSUE

8.      The issue is whether the applicant is entitled to a $315 refund for unused childcare services.

EVIDENCE AND ANALYSIS

9.      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.

10.   In a January 17, 2018 letter (misdated as January 15, but in context it is clear it must be January 17) the respondent asked the applicant to make new arrangements for the applicant’s son C as soon as possible, citing C’s aggression and concerns for the welfare of the entire daycare. However, it is undisputed that the respondent then verbally told the applicant that C could stay until the end of the month.

11.   Certainly, it is clear the applicant loves her son and wants the best care for him and it is undisputed that she was asking for help in different ways. The applicant does not dispute the respondent may have had some legitimate concerns about keeping C in her daycare. However, the applicant’s concern, in part, is that the respondent also spoke poorly of C in front of other children and staff, in addition to the various safety concerns. Given all of this, the applicant decided it was not in her son’s best interest to leave him in the respondent’s care.

12.   For the purpose of this dispute, I find nothing turns on the details of how the respondent and her staff spoke of C in his presence. It is clear that the staff took the position that either C left the daycare or they would quit. I appreciate from their perspective they were stating facts and expressing concern for their own welfare and that of the other children. I also accept from the applicant’s perspective it was hard for C to hear those concerns expressed. Given the respondent stated she felt it was unsafe for C to remain in her care, I find the applicant acted reasonably in declining the respondent’s offer that she leave C with the applicant until the end of the month.

13.   In her Dispute Response filed at the outset of this tribunal proceeding, the respondent said that her policy does not say anything about refunding money for unused days. The respondent’s argument appears to be that where silent, the default position is no refunds. I disagree.

14.   I find the material point is that the respondent’s policies do not expressly say fees are non-refundable in the event the childcare services are not provided. Under the respondent’s “Children Discipline” policy, it states the respondent reserves the right to ask parents to make alternative arrangements for care if a child is disruptive or poses an unsafe situation, which is what the respondent did. However, there is no mention of any non-refundable policy for pre-paid childcare services that are not used. The respondent’s “Fees Guidelines” mentions only a) 1 months’ notice being required if the parent wants to withdraw and b) the respondent has the right to give 1 months’ notice for student withdrawal if there is late payment or “abuse” of the respondent’s policy. Neither party gave a month’s notice, and I have found it was the respondent who initiated the termination of the relationship. In these circumstances, I find a refund for unused services is appropriate.

15.   The applicant provided a February 2, 2018 receipt, for $630, noted as being daycare fees for 2018. Based on the evidence before me, C’s last day in the daycare was January 17, 2018. The applicant says the respondent charged $35 per day and there were 9 days of care paid for but not provided. While the respondent disputes any liability to provide a refund, she does not challenge the calculation of the $315 claimed. I find the respondent owes the applicant $315 as a refund for unused daycare services. However, this is not the end of the matter.

16.   The respondent submits that C broke a number of items on his last day of care, including damaging a mirrored door after kicking it. Based on the photos, and the respondent’s statement and her staff members’ statements about C’s aggression, I accept that C broke the bottom of the mirror door and knocked the door off its track. I find the respondent’s expression in one letter that her husband said C “could have broke the door” was in the context of breaking it entirely and having it fall over the nearby napping children. I do not need to resolve the question of whether having a mirrored door is safe, as suggested by the applicant. Contrary to the applicant’s further suggestion, the respondent has no obligation to pursue recovery through her insurance.

17.   There is no counterclaim before me. However, I find the mirror damage is sufficiently connected to the termination of C’s care in the daycare and the applicant’s refund claim, such that a set-off is appropriate. I say this because I find the applicant is reasonably responsible to reimburse the applicant the cost of the mirror door replacement, because she is responsible for the damage caused by her son C. The respondent provided a website screenshot showing a $583.45 price for a new mirror door. This amount is reasonable. I find this amount set-off against the $315 award above brings the applicant’s award to zero. Because there is no counterclaim before me, I make no award for the difference to the respondent.

18.   The applicant expressly advised she makes no claim for reimbursement of tribunal fees, and so I will not address that issue.

ORDER

19.   I order the applicant’s claims, and this dispute, dismissed.