Date Issued: June 11, 2019

File: SC-2018-009238

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Rai v. AM PM Landscaping & Tree Service Ltd., 2019 BCCRT 712

BETWEEN:

Amandeep Kaur Rai

APPLICANT

AND:

AM PM Landscaping & Tree service Ltd.

RESPONDENT

INTRODUCTION

1.      This dispute is about payment for tree removal services.

2.      The applicant, Amandeep Kaur Rai, had some tree removal services done on her property. The respondent, AM PM Landscaping & Tree Service Ltd., is a tree removal company. The applicant says the respondent put a fraudulent builders’ lien on her property at a time when she was arranging to sell the home, so she had to pay the respondent in order to remove the lien. The applicant seeks reimbursement of $2,900 ($2,150 for the value of the lien, plus interest, legal fees and a “value for stress”).

3.      The respondent denies the applicant’s claims. It says it needed to file the lien in order to be paid for its services.

4.      The applicant is self-represented. The respondent is represented by Kirpal Singh Dhesa, a principal or employee.

JURISDICTION AND PROCEDURE

5.      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.

6.      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 “she said, he said” scenario. The 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. 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 British Columbia Supreme Court recognized the tribunal’s process and found that oral hearings are not necessarily required where credibility is an issue.

7.      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.

8.      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.

ISSUES

9.      The issues in this dispute are:

a.    Whether the respondent must refund the applicant the $2,150 she paid to discharge the lien,

b.    Whether the applicant is entitled to reimbursement of legal fees, and

c.    Whether the applicant is entitled to damages for stress.

EVIDENCE AND ANALYSIS

10.   In a civil claim such as this, the applicant bears the burden of proof on a balance of probabilities. While I have read all of the parties’ evidence and submissions, I have only addressed the evidence and arguments to the extent necessary to explain my decision.

11.   The tribunal does not have jurisdiction to order remedies set out in the Builders Lien Act (BLA), or to make findings about whether parties complied with the requirements of the BLA (see: Mega Cranes Ltd. v. GoGreen Wastewater Ltd. et al, 2019 BCCRT 104, a tribunal decision that is not binding on me but which I find useful). As set out in the BLA, only the British Columbia Supreme Court has that authority.

12.   The remedies requested by the applicant do not arise directly from the BLA. However, I find I must dismiss the applicant’s damages claims for the following reasons.

13.   The parties disagree on when the tree removal work was done. The applicant submits she had a tree removed by the respondent in August 2015 and paid $1,000 cash for the work. No quote for the work, or receipt for the cash payment, was produced in evidence. The applicant did provide a copy of the August 2015 city tree removal permit, however the field for the “arborist/contractor” is blank. The applicant submits she never heard anything else from the respondent until the applicant listed her home for sale, and upon receiving closing documents in August 2018, noticed a lien had been placed by the respondent company.

14.   The respondent submits that it did not do any work for the applicant in 2015, but rather performed tree removal services in May 2019 for a quoted price of $1,500. The respondent produced a quote dated December 23, 2018 for $1,500 for tree trimming and removal services at the applicant’s home, and then an invoice dated May 25, 2019 for the same price and services. I note, however, that the dates of the quote and invoice occur after the Dispute Notice in this proceeding was issued, on December 17, 2018.

15.   Additionally, the lien was filed with the Land Title Office on June 25, 2018 and indicates the lien was for work done on May 25, 2018. Further, the applicant states the home was sold in August 2018, before the respondent alleges to have done the work. Although it is possible the respondent incorrectly dated the quote and the invoice, I am not satisfied those documents were ever seen or agreed to by the applicant. In fact, I am uncertain as to whether they were created before or after this dispute was started.

16.   However, as discussed above, this tribunal does not have jurisdiction to make findings about whether the parties complied with the BLA. Therefore, I make no findings as to the validity of the lien placed on the applicant’s property by the respondent.

17.   In any event, it is not disputed that the applicant paid the respondent’s lawyer the amount of $2,150 ($1,700 for the amount of the lien, plus $450 in legal fees) so the lien would be removed from the applicant’s property. However, I find the applicant has not proved her claim for reimbursement or damages. Most significantly, I rely on the reasoning in Willow Spring Construction (B.C.) Ltd. v. 3423 Hastings Ltd., 2008 BCPC 370.

18.   In Willow Spring, the British Columbia Provincial Court considered a case where a builders’ lien had been placed on a property and then removed upon partial payment of the claimed debt. The builder then sued in provincial court, seeking payment of a remaining portion of the debt. In paragraph 52, the judge wrote that the BLA provides the appropriate process and forum for disputes such as these to be properly adjudicated, and that the British Columbia Supreme Court is the only court through which builders’ liens can be enforced or discharged. Judge Romilly wrote that the parties should have availed themselves of that process if they considered the matters about the lien not fully settled between them. He noted that section 23 of the BLA allows for the contested debt to be paid to the court in trust, pending resolution of the matter, and section 30 of the BLA allows for a defendant to file a counterclaim when an action is commenced to enforce the claim, either at the instigation of the lien claimant or the owner. In paragraph 54, Judge Romilly concluded that in paying the debt, the defendant property owner effectively acknowledged that the money was owed to the builder, and could not then sue for return of that money. He explained this as follows:

It strikes me that paying out the lien without availing itself of the remedies offered by the Builders’ Lien Act, implies an acknowledgement that the money was duly owed to the Contractor, and that the work was performed in accordance with their Contract. I find that the Defendant cannot now claim that either the money was improperly paid out or that it is entitled to some return of the monies in the guise of a counterclaim in this Court.

19.   In summary, Judge Romilly found that if either party wanted to contest the debt giving rise to the lien, they needed to do that using the Supreme Court process laid out in the BLA. This precedent decision from the BCPC is binding on the tribunal, and I adopt it. Although not binding on me, the BCPC decision was also followed in Vigini v. Titan Slegg GP Inc., 2019 BCCRT 661. Although Willow Spring dealt with a previous version of the BLA, I find the substance of the cited provisions has not changed, and the same reasoning applies in this dispute.

20.   In this dispute, the applicant submits that she had no choice but to pay the respondent’s lawyer’s invoice as she was trying to sell her home and close that sale by a certain date. That is incorrect. As noted in Willow Spring, the BLA includes provisions in sections 23 and 24 where a party can pay the contested debt into court. The court will then remove the lien against the property and hold the money, pending final determination of the debt claim.

21.   Here, the applicant chose not to use the section 23 process. Following Willow Spring, I find she cannot not successfully claim for reimbursement of the invoice payment. By paying the claimed debt underlying the lien, and not following the BLA process, the applicant effectively acknowledged the debt. She cannot now claim damages from the respondent based on allegedly being forced to pay that same debt.

22.   For these reasons, I deny the applicant’s claim for reimbursement of $2,150 for the invoice.

23.   For the same reasons, I deny the applicant’s claim for legal fees and damages for stress. Also, I would not have ordered those claims in any event. First, for the legal fees, no evidence of legal fees paid by the applicant (apart from the respondent lawyer’s invoice) was provided in evidence. Additionally, tribunal rule 9.4(3) says that except in extraordinary cases, the tribunal will not order payment of legal fees in small claims disputes.

24.   Regarding the claim for damages due to stress, again, no evidence was provided in support of the applicant’s claim for stress. Although not binding upon me, I note the decision of Eggberry v. Horn et al, 2018 BCCRT 224, which states that where there is no evidence of mental distress, the claim must be dismissed.

ORDER

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