Date Issued: July 2, 2019

 File: SC-2019-000036

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Baker v. Carmel Custom Contracting Ltd., 2019 BCCRT 794

Between:

SADIE BAKER

Applicant

And:

                        CARMEL CUSTOM CONTRACTING LTD.

 Respondent

INTRODUCTION

1.      This dispute is about non-payment for bookkeeping services the applicant, Sadie Baker, performed for the respondent, Carmel Custom Contracting Ltd.

2.      The applicant says she performed bookkeeping services in November 2017 but the respondent has not paid the $1,709.66 invoice. The applicant is self-represented.

3.      The respondent says the applicant failed to submit government remittances on time which led to penalties and that it had to hire another bookkeeper to rectify the applicant’s incomplete work. It says that the amount it expended exceeded the amount of the applicant’s invoice. The respondent is represented by Marlin Gait, the owner of the company.

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. 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 respondent requested an oral hearing. 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, this dispute amounts to a “she said, he said” scenario with both sides calling into question the credibility of the other. The applicant says she diligently performed the work requested and the respondent says she did not. In the circumstances of this dispute, I find that I am properly able to assess and weigh the 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 the decision Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. I therefore decided to hear this dispute through written submissions.

6.      It should be noted that the respondent was told by the tribunal that written submissions were required on numerous occasions after he requested an oral hearing but he declined to send in any submissions beyond those contained in his Dispute Response. I find that the submissions in the Dispute Response adequately set out the respondent’s position and that the respondent had ample opportunity to provide further submissions and evidence but he chose not to do so.

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.

9.      The applicant submitted that she attempted mediation with the Employment Standards Branch but was unsuccessful, seemingly because the parties did not take part in the conference calls scheduled.

10.   The evidence does not indicate that the applicant was an employee of the respondent but rather that she billed him at an hourly rate via invoices. The applicant indicates that she has worked for eight years as a bookkeeper and has other clients. She says that at the time her part-time work with the respondent made up the majority of what she termed her “self-employment” income.

11.   Based on this, I find that the applicant was an independent contractor rather than an employee of the respondent. The respondent did not dispute this. Therefore, I find the applicant’s claim for payment is within the tribunal’s small claims jurisdiction under the Act and is not within the exclusive jurisdiction of the Employment Standards Branch under the Employment Standards Act.

ISSUE

12.   The issue in this dispute is whether the applicant is entitled to $1,709.66 for bookkeeping services.

EVIDENCE AND ANALYSIS

13.   In a civil dispute such as this, the applicant must prove her claim. She bears the burden of proof on a balance of probabilities.

14.   I will not refer to all of the evidence or deal with each point raised in the parties’ submissions. I will refer only to the evidence and submissions that are relevant to my determination, or to the extent necessary to give context to these reasons.

15.   The respondent says that the applicant was hired to complete bookkeeping services and reconcile its books from August, September, October, and November 2017. He says that this included completing “each month end” to submit government remittances on time, to avoid penalties. As noted above, the respondent argues that the applicant did not complete these services and that the company had to pay several penalties due to late remittances. It says it hired another bookkeeper to remedy the incomplete work done by the applicant. It submits it did not pay the invoice because the cost of the above was more than what was owed.

16.   The applicant says that government reporting was the responsibility of a different bookkeeper and not part of the services she provided. Her job was to post previous transactions and she notes that the books were over three months behind when she started working with the respondent. I note that the respondent’s evidence that the applicant was to reconcile its books from August to November 2017 supports the applicant’s statement that it was months behind when the applicant began to work for it.

17.   The applicant provided an invoice dated October 31, 2017 for work done from October 6, 2017 to October 31, 2017 with proof that the respondent paid that invoice on November 10, 2017. She says this demonstrates that the two had a working relationship and that it made prompt payment. I infer from this that the respondent at that time did not suggest that the applicant’s work was substandard or incomplete.

18.   The applicant then invoiced the respondent again on November 30, 2017 for the $1,709.66 amount claimed. The applicant followed up with an email on December 15, 2017 reminding the respondent that the invoice had not been paid. The email’s tone is friendly and there is no suggestion that she has been alerted by the respondent in any way that it is unhappy with her work. The applicant sent another reminder email on January 2, 2018.

19.   The applicant has provided the invoice to show the amount owing. The respondent does not dispute that this was the accurate amount, rather its arguments center on why it feels it should not have to pay the $1,709.66. Therefore, I find the applicant has established she worked the hours she billed for and that $1,709.66 is the correct amount owing.

20.   The respondent claims it should not have to pay the invoice because it had to pay penalties due to late remittances. It has not provided evidence to establish that this was part of the applicant’s job description. It has not provided any documentation showing that it paid these penalties. The respondent also claims it had to hire another bookkeeper to rectify the applicant’s work. Again, it has not provided any evidence to show this to be the case.

21.   Further, the respondent paid one invoice around the middle of November 2017. The invoice was paid in full. There is also no email or other proof that it became unsatisfied with the applicant’s work between the middle of November and November 30, 2017 when the last invoice went unpaid. Based on all of the evidence, I do not accept that the respondent has a legitimate reason for not paying the outstanding invoice.

22.   I find the applicant is entitled to $1,709.66 for work performed. The applicant is also entitled to interest under the Court Order Interest Act (COIA) from November 30, 2017.

23.   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. As the applicant was successful in her claim she is entitled to have her $125.00 tribunal fees reimbursed. She is also entitled to be reimbursed $11.34 for the expense incurred in serving the respondent by registered mail. As the respondent was unsuccessful, it is not entitled to be reimbursed the $25.00 paper response filing fee.

24.   The applicant also requests to be reimbursed $122.68 which she states has to do with a previous “unresponded claim.” She explains that the previous claim was closed because she was hospitalized. She wants $100.00 for filing fees and $22.68 for serving the respondent by registered mail. As those amounts were not expended under this dispute, I find that the applicant is not entitled to be reimbursed for them.

ORDERS

25.   Within 30 days of this decision, I order the respondent to pay the applicant a total of $1,886.43, broken down as follows:

a.    $1,709.66 for work performed

b.    $40.43 in pre-judgement interest under the COIA, and

c.    $136.34 as reimbursement of tribunal fees and expenses.

26.   The applicant is entitled to post-judgement interest under the COIA. The applicant’s remaining claims are dismissed.

27.   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.

28.   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 passes. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.