Date Issued: April 5, 2019

File: SC-2018-004719

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Faghani et al v. Regan, 2019 BCCRT 429

Between:

Pedram Faghani and Souzan Saadat-Sanei

ApplicantS

And:

Joshua Regan

Respondent

REASONS FOR DECISION
Tribunal Member:	Kate Campbell

INTRODUCTION

1.      This dispute is about a wedding video.

2.      The applicants, Pedram Faghani and Souzan Saadat-Sanei, hired the respondent, Joshua Regan, to provide videography services for their September 2017 wedding. The applicants say the respondent did not complete the contracted services, as he recorded only 2 hours of the event rather than the contracted 9 hours, lost files containing important parts of the wedding, provided only a 21-minute final video, and did not meet the 8 week deadline set out in the contract.

3.      The applicants seek a refund of the $2,520 they paid for the respondent’s services, plus $2,480 for mental distress.

4.      The respondent denies the applicants’ claims. He says he worked hard on the project, and provided an excellent final product and excellent customer service. He says he provided more than was required under the contract, but the applicants kept requesting more of his time.

5.      The applicants are represented by Mr. Faghani. The respondent is self-represented.

JURISDICTION AND PROCEDURE

6.      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.

7.      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 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.

8.      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.

9.      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

10.   The issues in this dispute are:

a.    Are the applicants entitled to a refund of the $2,520 they paid for the respondent’s videography services?

b.    Are the applicants entitled to $2,520 in damages for mental distress?

EVIDENCE AND ANALYSIS

11.   In a civil claim such as this, the applicant bears the burden of proof, on a balance of probabilities. I have only addressed the evidence and arguments to the extent necessary to explain my decision.

12.   The applicants provided detailed submissions setting out many alleged problems with the final wedding video provided by the applicant. These include the following:

a.    The video is only 21 minutes long, while they paid for a minimum of 40 minutes.

b.    The videographer did not provide 9 hours of video coverage, as contracted.

c.    The video did not include parts of the event the applicants identified as important in the pre-wedding questionnaire, including the grand entrance, the entire first dance, and the entire solo and group dances.

d.    The video is poorly filmed and edited.

e.    The respondent failed to keep the raw footage, resulting in lost files.

13.   The applicants say the respondent’s work does not meet a professional standard for wedding videography. They also say the respondent’s loss of some video footage caused them significant mental distress, as it is irreplaceable.

14.   The parties signed a written contract at the time the respondent was hired. That contract, which was prepared by the respondent, says the respondent would provide 9 hours of video wedding coverage, with a 2-camera setup.

15.   The contract says the respondent would provide 3 final videos: a 3-5 minute “polished wedding” video, a 1-minute Instagram edit, and a “flowing documentary” (FD) video. The applicants say the quality of all 3 videos was poor, but they only seek remedies in this dispute in relation to the FD video.

16.   The contract does not specify the final required length of the FD video. However, the respondent’s price sheet states that an “8 hours package” will include 8 hours of wedding day filming coverage, 2 short videos, plus a 30-40 minute FD video. The applicants say that based on this price sheet, which they reviewed before they signed the contract, they reasonably expected that with their 9-hour package the FD video would be at least 40 minutes long. I agree with that submission, and find that the 21 minute FD video provided by the respondent does not meet this reasonable expectation.

17.   The applicants also say that while they paid for 9 hours of video coverage, with 2 cameras, the raw video files provided by the respondent only contain 99.5 minutes of total footage. They say this is also unreasonable, based on the price paid and the respondent’s pricing sheet, and justifies a refund of the respondent’s fee.

18.   The respondent filed a Dispute Response form with the tribunal, but he did not provide any evidence or further submissions to the tribunal, although and was offered the opportunity to do so.

19.   As the respondent has not provided contrary evidence, I accept the applicants’ assertion that the total length of the edited FD video, and the length of the raw video footage, do not meet what they reasonably paid for, based on the respondent’s pricing sheet. This is supported by a November 23, 2017 text message from the respondent to Ms. Saadat-Senei, which asks what she would like the respondent to focus on during the FD video, as “We have 40-60 minutes to fill With this version” (reproduced as written).

20.   I also find that the quality of the FD video also does not meet the requirements of the parties’ contract.

21.   The parties’ contract says the respondent agreed to work in a professional manner consistent with the level of care, skill, practice and judgment exercised by other professionals in performing services of a similar nature under similar circumstances with requisite skills, and qualifications needed to carry out such work.

22.   I find the respondent has not met this requirement of professional service. First, emails the respondent sent to Mr. Faghani in March and April 2018 confirm that the respondent lost some of the video files, and that some were corrupted. He said he could not complete the FD video without them. I find that failing to keep proper backup files does not meet the level of care, skill practice, and judgment of a professional videographer, as a key part of the role is to successfully manage the relevant technology and data.

23.   Second, I agree with the applicants that the FD video is of poor quality, and does not meet a professional standard. The applicants provided an expert report from AB to support this assertion.

24.   Tribunal rule 8.3(2) says that the tribunal will only accept expert opinion evidence from someone the tribunal decides is qualified by education, training, or experience. Since AB’s stated experience was not disputed, I accept that AB is an expert in videography. AB listed the following problems with the FD video:

a.    Dark or over-exposed lights in multiple scenes.

b.    Bride and groom in absolute darkness in reception shots.

c.    Too many close ups rather than wide shoots, so no documentation of surrounding guests.

d.    Insufficient raw footage, which should be at least 6 hours rather than 99.5 minutes for a 9-hour event.

e.    In numerous scenes, the videographer was late in capturing important moments, or did not record them sufficiently (such as the group dance).

f.      Camera appears to have been left unattended in some scenes, as it was not relocated when an object blocked the view.

25.   Based on AB’s evidence, which is not contradicted by contrary evidence, I accept that the videography in the FD video does not meet a professional standard, as required by the contract. This is consistent with my own review of the FD video. During the scenes shot during the banquet, the camera visibly shakes and jerks, the light levels flicker, and the still photographer’s shoulder and elbow block some shots. Then, disembodied hands appear at the left side of the screen, and someone’s head enters the left side. Later in the video, an out-of-focus hotel employee blocks the shot of the wedding couple by standing in front of the camera. During the wedding couple’s first dance, the shot is poorly framed, and couple is not entirely within the shot, leaving an empty floor for part of the scene. The light levels during most of the dancing scenes are very dark, and do not appear to meet a professional standard. The soundtrack of the video is also problematic, as at one point the music cuts out and the video is completely silent for about 2 minutes.

26.   For all of these reasons, I find the respondent did not provide the professional level of services required under the contract. I conclude that in the circumstances, the applicants are entitled to a refund of the $2,520 they paid the respondent.

Mental Distress

27.   The applicants also claim $2,480 for mental distress. This amount, combined with the refund, reflects the tribunal’s $5,000 small claims limit.

28.   The applicants say they are very distressed by the respondent’s loss of video footage, and his failure to record the full wedding and the key moments they specifically requested in the pre-wedding questionnaire provided by the respondent. The applicants say they spent $50,000 on their wedding, and it cannot be recreated. They say they hired a videographer to preserve those memories, and also because many of their relatives, including their grandparents, live overseas and could not attend. They say they chose the 9-hour package so they could document the entire event for these overseas relatives.

29.   There are numerous prior cases in which courts have ordered damages for mental distress where wedding videos were not provided as contracted, or where the videos were poorly produced: see De Costa and De Genova v. Banh, 2013 BCPC 366 (CanLII), Richardson v. A.E.A. Designer Group Inc., [2007] O.J. No. 5036, and Capocciti v. Kaiten Communications Inc. Prism Video [1995] O.J. No. 2388. For example, in De Costa, the BC Provincial Court ordered $10,000 for mental distress after a videographer failed to supply a wedding video. The court noted by that failing to provide the video, the plaintiffs and their families were deprived of a record of a once-in-a-lifetime event, significant in their community and in the couple’s lives. The judge concluded that because of that, there was no difficulty in accepting that the couple suffered considerable mental distress.

30.   Following on these cases, I accept that the applicants suffered significant mental distress, and I find that $2,480 is a reasonable amount of damages in the circumstances. I find that this case should be distinguished on its facts from the tribunal’s recent decision in Talbot v. Gill dba Lloyd’s Drycleaners, 2019 BCCRT 366. In that case, a tribunal vice chair found that a bride who discovered the day before her wedding that her dress had been ruined by negligent alterations was not entitled to damages for mental distress, as the resulting stress and anxiety were “minor or transient”. I find the facts before me are different, as in Talbot the bride was able to find another wedding outfit before the event took place, and therefore remedy the primary harm resulting from the respondent’s negligence. In the wedding video cases cited above, the courts particularly noted that once a wedding is over, there is no way to re-create it. For that reason, I find the applicants’ mental distress was not minor and fleeting, but instead is serious and prolonged.

31.   In Talbot, at paragraph 27, the vice chair also noted that damages may be available for a breach of a “peace of mind” contract:

In contract, the law does not award damages for incidental frustration. The exception is where the object of the contract is to secure a particular psychological benefit and the damages were reasonably within the parties’ contemplation at the time the contract was made. I find this was not such a “peace of mind” contract where a major portion of the contract is to provide pleasure, relaxation or peace of mind.

32.   In the court cases cited above, and in Wilson v. Sooter Studios Ltd., 1988 CanLii 3100 (BCCA), the courts found that contracts for wedding photos or videos are “peace of mind” contracts, and that damages for mental distress are therefore available as remedies for breach of those contracts.

33.   For these reasons, I order the respondent to pay the applicants $2,480 as damages for mental distress. I find this amount is well within the range of De Costa, a 2013 case in which the court ordered $10,000 in mental distress damages where a wedding videographer failed to provide any video. I find the applicants are also entitled to pre-judgment interest on the refund and the damages award, under the Court Order Interest Act (COIA), from September 30, 2017.

34.   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 applicants are entitled to reimbursement of $175 in tribunal fees.

35.   The applicants claim $280 for AB’s report. Under tribunal rule 8.3(4), a party providing written expert opinion evidence must provide a copy of the expert’s invoice. The applicants provided no invoice or receipt confirming that they paid AB, or if so, how much they paid. For this reason, I dismiss this claim for reimbursement.

36.   The applicants also claim $82 for Mr. Faghani’s time spend attending the tribunal’s facilitation teleconference, as the respondent did not attend. I accept that the respondent’s failure to participate was frustrating, and wasted Mr. Faghani’s time. However, the tribunal typically does not award a party expenses for their own time in dealing with a dispute, consistent with the tribunal’s practice of not generally awarding legal fees. Also, Mr. Faghani provided no evidence to show that he missed work in order to participate, and to confirm that he would have been paid $82 for that time. I therefore do not order reimbursement for time spent on the dispute.

ORDERS

37.   I order that within 30 days of the date of this decision, the respondent pay the applicants a total of $5,274.97, broken down as follows:

a.    $2,520 as a refund of the respondent’s fees,

b.    $2,480 as damages for mental distress,

c.    $99.97 in pre-judgment interest under the COIA, and

d.    $175 for tribunal fees.

38.   The applicants are entitled to post-judgment interest, as applicable. The applicants’ remaining claims are dismissed.

39.   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.

40.   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.