Date Issued: February 25, 2019

File: SC-2018-002633

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Bakken v. Bakken, 2019 BCCRT 221

Between:

Jenny Bakken

Applicant

And:

Gordon Bakken

Respondent

INTRODUCTION

1.      The parties are siblings. The applicant, Jenny Bakken, says the respondent, Gordon Bakken, did not pay back a loan from 2012. The applicant seeks an order for payment of $750 for the loan.

2.      The respondent says the applicant’s claim is out of time. He does not admit a loan but says that if there was a loan the applicant earlier forgave it. The parties each represent themselves.

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 (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.

4.      The tribunal may decide the format of the hearing, including by writing, telephone, videoconferencing, or a combination of these. I find that I can fairly resolve this dispute by writing based on the documents and written positions before me because 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 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.      If the claim is not out of time, is the applicant entitled to $750 for the outstanding loan?

EVIDENCE AND ANALYSIS

8.      The applicant bears the burden of proof for the claim on a balance of probabilities. I have reviewed all submissions and evidence provided. I refer only to the relevant evidence necessary to give context to my decision.

9.      The applicant says that in 2012 she entered into a verbal agreement with the respondent loaning him $750. There is no evidence of terms agreed to between the parties. The respondent does not admit the applicant loaned the money as alleged.

10.   On November 14, 2016 the applicant advised the respondent that she was disappointed that he had not tried to pay back the $750 owing. Then on March 16, 2018 the applicant made a demand for payment.

11.   The respondent says that the dispute is outside the limitation period. The current Limitation Act requires a person to start a debt claim no more than 2 years after the day it is discovered. However, for claims discovered before June 1, 2013, the previous Limitation Act provision applies, and a debt claim must be started within 6 years of discovery. The Dispute Notice was issued on April 16, 2018, which stopped the running of time for the limitation period.

12.   The burden of proving which limitation period applies and whether it has expired falls to the party relying on it. The respondent does not acknowledge the debt but says that the applicant’s evidence is that the loan was agreed to more than 2 years before she started this dispute. While the loan was allegedly agreed to in 2012, the issue for the limitation period is when repayment of the loan was due.

13.   Since there is no evidence regarding repayment from the respondent, I find that the applicant expected repayment by at least November 14, 2016 when she wrote to the respondent expressing her disappointment that the loan was not yet repaid. Given the above, I find the claim was started in time.

14.   However, on the evidence, I find the applicant has not proved there was a loan agreement. A verbal contract is enforceable, but it can be harder to prove than a written one.  In this case, the applicant’s evidence lacks particulars and detail that would establish the agreement. There is no date or approximate date provided, and no terms or details of how or why the agreement occurred. As a result, I find the applicant has not met her burden.

15.   Given my finding above, I need not considered the respondent’s alternative argument that, if there was a loan, it was forgiven as a part of a subsequent partnership agreement.

16.   As the applicant was unsuccessful, under the Act and rules I also dismiss her claim for reimbursement of tribunal fees and dispute related expenses.

ORDERS

17.   I find the applicant’s claims, and therefore this dispute, must be dismissed.