Date Issued: March 22, 2019

File: SC-2018-006242

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Williams v. Holtsbaum, 2019 BCCRT 361

Between:

James Williams

Applicant

And:

Rick Holtsbaum

Respondent

INTRODUCTION

1.      This dispute is about payment for guns. The applicant, James Williams, says the respondent Rick Holtsbaum failed to pay in full for 7 guns, ammunition, and accessories that he received. The applicant claims $2,700.

2.      The respondent says he took only 6 guns and that he paid for them in full, in cash. The respondent says the small amount of ammunition received was included in the purchase price for the 6 guns. The respondent says the applicant is also not the guns’ owner and has no legal license to sell the guns.

3.      The parties are each self-represented. For the reasons that follow, I dismiss the applicant’s claims.

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. Some of the evidence in this dispute amounts to a “he said, he said” scenario. Credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. 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 that in Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, the BC Supreme Court recognized the tribunal’s process and found 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 in this dispute is to what extent, if any, the respondent owes the applicant $2,700 for purchased guns and related accessories.

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 the Dispute Notice that started this proceeding, the applicant said the respondent agreed to buy 18 rifles, ammunition and accessories from him, for $11,000. The evidence shows that full agreement never crystallized.

11.   The applicant also said in the Dispute Notice that the respondent was “picking up several guns at a time and paying as he received the guns”. The applicant said the initial deposit was 2 payments of $1,000, and that the complete payment would be made by 90 days. The applicant stated in the Dispute Notice that the respondent then took more rifles, ammunition and accessories but failed to pay for them and then cancelled the contract. In the Dispute Notice, the applicant claimed $2,700 as the balance owing. He also claimed, perhaps in the alternative, the return of the guns, ammunition and accessories he says the respondent took but did not pay for.

12.   During or after the tribunal’s facilitation process, the applicant’s claim evolved to a single claim for $2,700, because “the respondent has cancelled a contract and refuses to pay for goods received”.

13.   It is undisputed the parties’ contract was based on a verbal agreement. While enforceable, verbal agreements are harder to prove than written ones.

14.   The applicant specifically submits that on March 11, 2018 he emailed the respondent in reply to a request about guns for sale. The respondent attended the applicant’s home on March 12, 2018, looked at the guns, and the applicant says they arranged a price per gun.

15.   The applicant says on the March 12 visit, the respondent took 3 guns home and gave the applicant $1,000 cash. The applicant says the following week the respondent came and took 4 guns home and gave another $1,000 cash. The applicant says the respondent also took all the ammunition “for the antique guns” plus all the accessories “we valued at $1,000”. The applicant says based on the agreed-on values of the 7 guns and ammunition the respondent took, the total value was $4,700. The applicant says the respondent paid only $2,000. Despite repeated requests for the balance, the applicant says the respondent cancelled the deal.

16.   I find the applicant’s claims must be dismissed because he has not proved the respondent took more than the 6 guns the respondent said he did and has not proved the values the applicant asserts were agreed upon. In other words, the applicant has not proved the respondent failed to pay for the guns he took.

17.   First, the applicant’s stated claim in the Dispute Notice is substantially different from what he asserts in his later submissions for this decision. As noted above, in the Dispute Notice he said the respondent picked up “several guns at a time” and paid for them as he received them, and that later the respondent took more rifles without paying for them. The applicant now submits the respondent took 7 guns, not 6, and that he paid less than half the total $4,700 required. I find this later submission inconsistent with “several guns at time” being paid for as they were picked up. I also find the applicant has not explained the discrepancy between the Dispute Notice allegation of the respondent later taking “more rifles” without payment and his later acknowledgement that the applicant took guns only twice, 3 guns and then 4 guns, and paid $1,000 each time.

18.   Second, I acknowledge the applicant’s inventory list, with handwritten pricing beside them. There is however insufficient evidence before me that the respondent saw this pricing list or that he ever agreed to it. As for the ammunition, the applicant has provided insufficient evidence to support his assertion as to what he allegedly sold the respondent or for how much. I say the same about the claimed “accessories”.

19.   Third, after a first request for payment that was denied, the applicant followed up on May 8, 2018 and wrote that the respondent had 7 guns and the balance owing was $1,700. The applicant has provided no explanation for why the balance was $1,700 instead of the $2,700 he now claims.

20.   Fourth, while the applicant says his records show the respondent owes a $2,700 balance, I find the applicant has not provided any such record or bookkeeping. There is no bill of sale, no receipt, and I find the applicant’s own varying descriptions are not reliable as to what the applicant sold the respondent and for what amount. As noted above, the applicant bears the burden of proof.

21.   Finally, quite apart from the other concerns, the applicant has not proved he has legal standing to make this claim. Here, I note the applicant’s inventory list that is titled “Guns for Sale from the Estate of [B.S.]”. The applicant has not provided evidence that he is the executor of the estate in question or that he had the authority to sell the guns.

22.   Given my conclusions above, I find the applicant’s claims must be dismissed. In accordance with the Act and the tribunal’s rules, as the applicant was unsuccessful I find he is not entitled to reimbursement tribunal fees or dispute-related expenses.

ORDER

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