Date Issued: May 14, 2019

File: SC-2018-003604

Type: Small Claims

Civil Resolution Tribunal

Indexed as: ASAP RESTORATION LTD. v. BAINS., 2019 BCCRT 575

Between:

ASAP RESTORATION LTD.

Applicant

And:

Avtar Bains

Respondent

INTRODUCTION

1.      This dispute is about payment of a $2,500 insurance deductible. The applicant, ASAP RESTORATION LTD., says the respondent, Avtar Bains, hired it in November 2017 to do emergency repairs and agreed to pay the deductible on completion of the work.

2.      The respondent denies liability, saying while he agreed to pay the deductible the repair work was not completed to his satisfaction.

3.      The applicant is represented by Charanjit Dhamrait, who I infer is an employee or principal. The respondent is self-represented. For the reasons that follow, I allow 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. 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 9.3(2), 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 respondent is liable for the $2,500 insurance deductible related to emergency repair work completed by the applicant.

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.   The respondent’s home sustained water damage on November 15, 2017, mostly to a crawl space used for storage. It is undisputed that the respondent was ill at the time and not directly supervising any of the restoration work.

11.   The applicant says on May 4, 2018 it provided a “non restorable list” to the adjuster, NW, from Economical Insurance (Economical), the respondent’s insurer. The applicant says Economical was to forward that list to the respondent, their client. The respondent does not particularly dispute this, and as noted below complains that the insurer did not provide him with the list until September 2018.

12.   Yet, on May 4, 2018, the respondent’s spouse signed an authorization permitting the applicant to dispose of all the items on the “non restorable” list.

13.   The respondent denies ignoring multiple calls from the applicant, as alleged. The respondent says the applicant should be able to provide proof of its attempted calls. Contrary to the respondent’s focus in his submissions, the precise record of the applicant’s attempted debt collection efforts is not particularly relevant.

14.   Instead, what matters in this dispute is whether the applicant reasonably completed the work in question and whether the respondent had agreed to pay the associated $2,500 insurance deductible. It is uncontested that the respondent agreed to pay the $2,500 deductible. The respondent also does not deny the applicant did the restoration work.

15.   At one point in his submissions, the respondent says his insurance broker RL arranged for the applicant to “come and finish the job even without me asking them”. I find this suggests the applicant did finish the job.

16.   The respondent’s general argument is that the applicant failed to return or account for certain items.

17.   On the one hand, the respondent says he told the applicant’s representative that the respondent did not know what he had stored in parts of his house. The respondent describes his concern that the applicant removed items from the house, saying they would document them back at their warehouse. The respondent says when the applicant returned to set up his house again, “quite a few of my belongings were still missing”.

18.   The respondent stated his wife did not approve of the newly installed bathroom vanity, which on April 25, 2018 the respondent replaced at a cost of $422.02. While the respondent says the applicant agreed to replace and pay for this vanity, the respondent has not provided any evidence of such an agreement apart from his assertion. There is no statement in evidence from the respondent’s wife. I find the respondent has not established the agreement to replace the vanity, which I find is his burden given he is the one asserting that agreement.

19.   The respondent says a “Pivot Pro Hair Clipper” was missing, which he estimates at a cost of $120. However, there are no receipts or quotes in evidence, or any evidence that this item was removed by the applicant. I find the respondent has not established the applicant failed to account for the clipper nor has the respondent proved its value.

20.   The respondent made submissions about a vacuum cleaner, saying that a number of boxes for an expensive Dyson vacuum cleaner were not listed in the non-recoverable items nor were they returned to him. In support, the respondent relies on his son HSB’s January 21, 2019 statement. I do not accept the applicant mishandled any vacuum boxes. I say this because HSB’s statement refers to a conversation with his brother SB who died in January 2017. SB had lived in the home and HSB said he saw the vacuum boxes and that SB had said they were worth more than $4,500. Yet, HSB does not say that those vacuum boxes were in the house at the time of the water damage in November 2017, even if HSB was in Canada at the material time. Moreover, there is no quote or receipt for the vacuum pieces in evidence. There is simply insufficient evidence before me that would allow me to conclude the vacuum boxes were still in the house at the time of the November 2017 water damage or that the applicant is responsible for a loss related to them, in the amount of $4,500 or otherwise.

21.   The respondent also alleged a health supplement called ASEA was taken from his home, but in his later submission makes a “correction notice” and withdraws this from his “claim”, though I note no counterclaim was filed. In any event, the respondent did not prove the value of the ASEA supplement or that the applicant is responsible for its removal or lack of accounting in the list of the respondent’s belongings.

22.   On balance, I find the respondent has not proved the applicant mishandled the above items or failed to properly account for them.

23.   In addition, the respondent notes there were 2 separate companies, the applicant and another, working for the insurer to remove damaged items from the respondent’s home. As referenced above, the respondent admits that while he did not receive the applicant’s list of non-recoverable items until September 2018, the applicant had sent it to the insurer on May 4, 2018, 2 days after the restoration work had completed. While the respondent may have concerns about the timing of his receiving the list, I find that is an issue between him and his insurer, not the applicant. In these circumstances, I cannot agree that applicant has failed to properly account for the respondent’s items.

24.   I find the respondent must pay the applicant the $2,500 insurance deductible, which I find the evidence clearly shows he agreed to pay. I have found the respondent has not established his defense that the applicant improperly accounted for certain items.

25.   The applicant is entitled to pre-judgment interest under the Court Order Interest Act (COIA) on the $2,500, from May 4, 2018, a date I consider reasonable in all the circumstances. This equals $40.94.

26.   The applicant was successful. In accordance with the Act and the tribunal’s rules, I find the applicant is entitled to reimbursement of the $125 it paid in tribunal fees.

ORDERS

27.   Within 14 days of this decision, I order the respondent to pay the applicant a total of $2,665.94, broken down as follows:

a.  $2,500 in debt,

b.  $40.94 in pre-judgment interest under the COIA, and

c.   $125 in tribunal fees.

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

29.   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.

30.   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.