Date Issued: June 6, 2019

File: SC-2019-001231

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Qin v. Vancouver International College of Health and Wellness Inc., 2019 BCCRT 687

Between:

ZHEN QIN

Applicant

And:

VANCOUVER INTERNATIONAL COLLEGE OF HEALTH AND WELLNESS INC.

Respondent

INTRODUCTION

1.      This is a dispute over tuition fees.

2.      The applicant, Zhen Qin, says the respondent, Vancouver International College of Health and Wellness Inc., issued her a diploma in acupressure and body massage the same day she paid her tuition. She says that the respondent did not provide her with any educational program or work experience and that the program was not approved by the Private Training Institutions Branch of the Ministry of Advanced Education and Skills Training (PTIB). She also says her massage services were not reimbursable under her clients’ extended health insurance plans. She seeks a full refund of her $5,000.00 tuition fee.

3.      The respondent’s position is that the applicant needed the diploma urgently to start her massage business and the transaction was voluntary and fair. It says that its lack of certification did not affect its diploma’s effectiveness in allowing the applicant to open a massage business. It also says she is welcome to take lessons at the school anytime.

4.      The applicant is self-represented. The respondent is represented by Chun Wang, its president and sole director.

5.      The respondent’s legal name was Canadian Institute of Reflexology Inc. (CIR) until September 18, 2018.

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. 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 some respects, both parties in this dispute call into question the credibility of the other. Credibility of 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. In Yas v. Pope, (2018 BCSC 282 at paragraphs 32 to 38), the court recognized that oral hearings are not necessarily required where credibility is in issue. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me. 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 decided to hear this dispute through written submissions.

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 9.3(2), in resolving this dispute the tribunal may make one or more of the following orders:

a.    order a party to do or stop doing something;

b.    order a party to pay money;

c.    order any other terms or conditions the tribunal considers appropriate.

ISSUE

10.   The issue in this dispute is whether the respondent must refund the applicant’s $5,000.00 tuition fee.

EVIDENCE, ANALYSIS & FINDINGS

11.   Although I have reviewed all submissions and evidence provided, I refer only to the relevant evidence necessary to give context to my decision.

12.   Some of the parties’ evidence is not in English but translations were provided. Neither party challenged the accuracy of any of the translations, so I accept them as accurate and will only refer to the English translations.

13.   There is no dispute that on March 22, 2017, the applicant paid the respondent $5,000.00 in cash. The same day, the respondent issued the applicant a diploma for 1,000 hours of acupressure and body massage, signed by Mr. Wang (massage diploma). The respondent also issued the applicant a diploma for Chinese foot reflexology, dated April 10, 2017, although the applicant says she received it on March 22, 2017. There is no dispute that the applicant never attended any instructional classes or training at the respondent’s school. The applicant says she has prior experience in massage.

14.   The applicant says that in a telephone conversation prior to her paying tuition fees (no date provided), Mr. Wang told her that with the massage diploma she could join the Natural Health Practitioners of Canada (NHPC), and then she would be able to write receipts for clients with extended health insurance. She did not record that conversation, but she provided documents that she says show the respondent or Mr. Wang making similar claims. She says that most of her clients have extended health insurance, so it is important for her to be able to provide receipts for them.

15.   The applicant did not engage in the massage industry immediately upon receiving her massage diploma in March 2017. In June 2018, she made membership inquiries with the NHPC but discovered that she would not be able to issue her customers receipts that would be accepted by insurance companies in BC. When the applicant asked Mr. Wang to refund her tuition fees, he refused.

16.   Mr. Wang denies ever discussing NHPC membership or massage service coverage under extended health insurance. He says the applicant was not concerned with these things. She was purchasing a condominium and applying for a mortgage loan. She needed to prove that she could earn additional income from providing massage services at home, and she needed a massage school certificate to apply for a business licence. After considering her situation, Mr. Wang agreed to issue the certificates first, to help her out, and then do the training later. The respondent’s school had never done that before. The respondent submits that the applicant’s request for a refund over a year later was not reasonable. The respondent does not know how the applicant used the certificates in the meantime.

17.   Although the applicant does not use these exact words, I find that her claim is a misrepresentation claim against the respondent. As this is a civil claim, the applicant bears the burden of proving her claim on a balance of probabilities.

18.   Some of the applicant’s claims relate to the respondent’s lack of certification status with the PTIB and its failure to comply with requirements under the Private Training Act (PTA). The PTA creates obligations for certified institutions and establishes a Tuition Protection Fund (fund) into which certified institutions pay. Students may make claims against the fund if the institution misled the student regarding any significant aspect of an approved program of instruction. The evidence shows that in July 2018 the applicant attempted to address her concerns regarding the respondent through the PTIB. A student claims officer advised the applicant that the PTIB only accepts complaints from students enrolled at a certified institution, and that she attended the institution prior to its initial PTIB certification date of November 17, 2017, meaning she was not eligible to file a complaint with the PTIB. Accordingly, I find that the tribunal has jurisdiction to hear the applicant’s claim. However, I have not considered the respondent’s lack of PTIB certification in the context of the applicant’s misrepresentation claim because she does not say that the respondent ever represented to her that it was certified with the PTIB or that she relied on such a representation.

19.   A negligent misrepresentation occurs when: (1) there is a duty of care based on a “special relationship” between the seller making the representation and the buyer, (2) the representation in question was untrue, inaccurate, or misleading, (3) the seller acted negligently in making the representation, (4) the buyer relied in a reasonable manner on the negligent misrepresentation, and (5) the reliance must have been detrimental to the buyer (see Queen v. Cognos Inc., 1993 CanLII 146 (SCC)).

20.   I find that the respondent, as an educational institution, owed a duty of care to the applicant, who was a prospective student.

21.   There is conflicting evidence about the representations the respondent made. The applicant refers to an advertisement for CIR on the website vansky.com, which appears to be an online classified advertising website. She does not say that she saw or relied on the ad at the time she paid the respondent her tuition fee. The publication date for the ad was June 4, 2015. It says that massage certificates issued by CIR are “the certificates solely certified by the Province of British Columbia to permit the massagists to lawfully perform the work of massage and open the shop of health & wellness and massage.” It also says that massagists holding certificates issued by CIR can join the NHPC. It lists various insurers that reimburse holders of certificates from the NHPC.

22.   The respondent submits that the ad includes its business phone number, which it says the school only acquired in May 2018. An invoice from Shaw confirms the acquisition of the phone number in May 2018. The respondent also provided an email from a vansky representative stating that the date of the advertisement is the date it originally appeared on their website and cannot be changed regardless of subsequent updates.

23.   I find that June 4, 2015 was the date the ad was originally placed, and that the phone number on the ad was not the respondent’s phone number until May 2018, proving that the version of the ad that the applicant submitted had been updated after May 2018. As a result, I place little weight on the content of the ad because there is no way to tell when the content regarding the NHPC and insurers that reimburse coverage was added.

24.   The applicant submitted screenshots from Mr. Wang’s WeChat, a Chinese online messaging and social media application. On November 29, 2016, Mr. Wang indicated that the acupressure and massage therapy 1,000-hour course was “registered in the Ministry of Education of British Columbia and certified by the association of NHPC.” Similarly, on December 17, 2016, Mr. Wang stated that CIR “is a formal professional school registered by the BC provincial education department” and that the “acupressure pressure massage certificate course” was open for enrollment and featured the most authoritative NHPC association certification in Canada. I have inferred that these were public posts and not direct messages to the applicant.

25.   Although the applicant did not state that she saw or relied on these posts when paying her tuition fee, they support the inference that Mr. Wang made similar representations to her verbally. However, these posts say nothing about issuing receipts for clients with extended health insurance, or insurance coverage generally. The evidence only allows me to infer that Mr. Wang may have told the applicant that the respondent’s school was certified by the NHPC. If so, that statement was true at the time – the evidence confirms that the NHPC rescinded its recognition of the respondent’s program as of January 2019. The NHPC is an association of health practitioners. There is no evidence indicating that it determines whether insurers reimburse clients for particular services. To the contrary, the evidence of the NHPC’s credentials manager was that NHPC membership did not assist massage practitioners in BC because massage therapy in BC is regulated by the College of Massage Therapists (college). The credentials manager stated that CIR’s 1,000-hour massage program only allows the member’s services to be eligible for insurance coverage in non-regulated provinces and with certain insurance companies in those provinces.

26.   I find that the applicant has failed to establish on a balance of probabilities that the respondent made any untrue statements that she relied on. However, even if the applicant had relied on a misrepresentation the respondent made I would find that her reliance would not have been reasonable.

27.   The BC Provincial Court has considered misrepresentation in the post-secondary education context. The court stated that it is incumbent upon the student before entering an institution to make due inquiry about the merits, reputation, and value of its certificates (Cohen v. Keeran, 2004 BCPC 6). In context, I find that it was not reasonable for the applicant to rely on Mr. Wang’s statements before inquiring with the relevant authorities.

28.   Under the PTA, the PTIB is required to publish on its website a list of certified institutions. The website is publicly accessible without charge. The applicant did not explain why she did not check if the respondent’s school was certified. She waited to contact the NHPC to ask about recognition of diplomas from the respondent’s school until more than a year after paying tuition. I find that a reasonable person would have inquired with NHPC and PTIB first. I also find that a reasonable person would have inquired with the college or with BC-based health insurance companies.

29.   There were several red flags in the respondent’s business methods. First, there was the respondent’s offer of the diplomas in exchange for a cash payment with no requirement that the applicant take any training. The applicant says that she did not ask to receive the diplomas without attending class and that she was surprised by the offer, but that was the offer that she accepted. There is no evidence that she questioned that approach. She also says that Mr. Wang did not think she needed any more training, but he did not evaluate her. The respondent’s willingness to issue diplomas with no instruction and no evaluation of its students should have made her question its legitimacy. Finally, when she asked about paying by installments, Mr. Wang offered a tuition discount of $1,000.00 and offered an extra diploma, further calling into question the legitimacy of the institution. In this context it was not reasonable for the applicant to rely on the respondent’s statements without further inquiry.

30.   Given my conclusions above, I dismiss the applicant’s claim for reimbursement of tuition fees paid to the respondent.

31.   As the applicant was unsuccessful, under section 49 of the Act and tribunal rules I dismiss her claims for reimbursement of tribunal fees and dispute-related expenses.

32.   Nothing in this decision prevents the applicant from accepting Mr. Wang’s offer to enroll in massage training classes at any time.

ORDER

33.   I dismiss the applicant’s claims and this dispute.