Date Issued: September 6, 2019

File: SC-2019-001988

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Walker v. Harrison, 2019 BCCRT 1055

Between:

JEREMEY WALKER

Applicant

And:

JOEL HARRISON

Respondent

INTRODUCTION

1.      This dispute is about a failed purchase of a used truck. The applicant, Jeremey Walker, says the respondent, Joel Harrison, took delivery of his “partially dismantled truck” but then refused to complete the purchase and did not pay the agreed $1,500. It is undisputed the applicant refused to take back the truck. At his own expense, the respondent returned the truck to the applicant. The applicant claims $1,200, which he says reflects the agreed purchase price less $300 that he recovered after selling it.

2.      The respondent says after he received the truck he realized 4 days later that a number of the agreed-on included parts were missing. When the respondent contacted the applicant about the missing parts, the applicant said everything was there. The parties are each self-represented.

JURISDICTION AND PROCEDURE

3.      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 (CRTA). 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.

4.      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 “he said, he said” scenario. Credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanor 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. 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.

5.      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.

6.      Under tribunal rule 9.3(2), in resolving this dispute the tribunal may do one or more of the following where permitted under section 118 of the CRTA: 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

7.      The issue in this dispute is whether the applicant is entitled to payment for the truck, or, whether the applicant breached the parties’ contract by failing to deliver all the included parts with the truck and so is not entitled to any payment.

EVIDENCE AND ANALYSIS

8.      In a civil claim such as this, the burden of proof is on the applicant to prove his claims on a balance of probabilities. Although I have reviewed all of the parties’ evidence and submissions, I have only referenced what I find necessary to give context to my decision.

9.      The following facts are undisputed. On February 27, 2019 the respondent agreed through Facebook messenger to buy the applicant’s dismantled truck, a 1999 F360 Crew Cab Long Box. The parties agreed that if the respondent took delivery of the truck on February 27, the applicant would sell it for $1,500 instead of the original $2,500 price. The parties agreed the respondent would pay the $1,500 on March 5. The truck was loaded on a tow truck flat deck hired by the respondent and delivered to the respondent’s home in the evening of February 27. As discussed further below, the central issue in this dispute is whether the truck was provided with all the agreed parts.

10.   The respondent says his hired tow truck arrived at the applicant’s home before the respondent got there. The respondent says the applicant insisted the truck get loaded and when the respondent arrived it was dark in the evening and he was not permitted to climb up onto the deck to inspect the truck, due to WorkSafeBC requirements. It is undisputed this was the driver’s instruction, not the applicant’s. The respondent says he needed to get home so he agreed to take the truck to his house to look it over in the morning to confirm it was as advertised. However, there is nothing in writing that indicates the parties agreed to such a conditional purchase, and I find it unlikely they did so. The applicant’s earlier Facebook messages indicated the parties agreed to documenting the purchase. The parties agree the reason the applicant agreed to reduce the truck’s price was to get it off his property, which supports the conclusion the sale was final. On balance, I find the parties did not agree to a conditional purchase such that the respondent could take delivery, inspect the truck the next day, and then possibly decide not to buy it. In any event, the respondent admits he did not look over the truck the next day, as discussed below.

11.   Both parties made submissions about whether there was a ‘bill of sale’ or transfer of title documentation. Nothing turns on this because the issue before me is whether the parties’ had an enforceable agreement for the respondent to pay $1,500 for the truck.

12.   It is undisputed, and the veterinary records in evidence show, the respondent’s dog went into duress and was unfortunately euthanized on March 1. Given this, the respondent says he did not have an opportunity to inspect the truck and its parts until March 3, 2019, at least 3 days after he took possession of it. The respondent says as soon as he looked at the truck he immediately noticed a “significant amount” of missing parts: batteries, power steering pump, intake, intake manifold, alternator, A/C compressor, and all the nuts/bolts/fittings required to install those parts. The respondent says the partially dismantled truck was advertised as complete, except for it was missing rear leaf springs, stereo, and both side mirrors.

13.   On March 3, 2019 the respondent messaged the applicant and asked about the missing parts. The applicant responded that the truck was loaded complete as advertised when the respondent picked up the truck. On March 6 the applicant requested the $1,500 as agreed. The respondent refused, citing the missing parts, and as noted above, the respondent returned the truck to the applicant on March 8, 2019.

14.   It is undisputed that soon after the respondent returned the truck to the applicant, the truck was relisted for sale on Facebook, apparently by the applicant’s son. In this listing, the truck was advertised as being sold for parts by piece. The respondent essentially says this shows the applicant was trying to run a scam. The applicant denies any scam and says he needed the truck gone and so he dealt with it the quickest way possible. This explanation is consistent with the respondent’s stated understanding of why the applicant agreed to the arrangement with the respondent taking the truck on February 27 but not paying for it until March 5. Contrary to the respondent’s assertion, I find I cannot draw anything from the fact that the applicant quickly took steps to re-sell the truck including to his son, since he never received payment from the respondent.

15.   The applicant has proved the parties’ agreement was for payment of $1,500 for the truck. The respondent never paid anything, and returned the truck that at that point was admittedly missing parts. As noted, the issue here is whether the truck had all the parts at the time the respondent picked it up.

16.   The Sale of Goods Act (SGA) applies to the tribunal and this dispute. Section 23(2) of the SGA says if there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer at the time the contract is made. Section 23(2) says it is irrelevant that payment was postponed. I find that section 23(5) of the SGA does not apply here, which deals with goods delivered conditionally or “on approval”, because I have found there was no agreement for the respondent to take the truck and later decide if he approved them. In any event, sections 23(5)(b) and 23(6) of the SGA state that if the buyer does not indicate rejection within a reasonable time, the property in the goods passes to the buyer. I find the 4-day delay in giving his rejection was unreasonable here, because the truck was left exposed in the respondent’s driveway. Once property in the goods passed to the respondent buyer, he had an obligation to pay for them. This is what section 25 of the SGA says: when the property in the goods is transferred to the buyer, the goods are at the buyer’s risk.

17.   I find the respondent chose to accept delivery of the truck, through the respondent’s hired tow truck, and took the truck home for several days. It is not the applicant’s responsibility that the respondent’s driver would not permit an inspection of the truck on the flat deck. The respondent could have refused to take delivery at that point. The weight of the evidence does not show the applicant failed to deliver the truck as advertised. The respondent says the truck was parked in his driveway under a security camera, but there is no security footage in evidence. While the respondent says the footage was deleted in the month before the applicant started this proceeding, that fact is not the applicant’s fault. While the respondent’s dog’s death was unfortunate, the associated delay in the truck’s inspection is not the applicant’s responsibility. The fact remains the truck was in the respondent’s driveway.

18.   I acknowledge the respondent’s allegations that the applicant has brought several other similar proceedings involving other vehicles. However, he provided no proof of those cases, so even if I were inclined to consider such alleged “similar fact evidence”, the respondent did not provide it.

19.   I turn then to the applicant’s claimed damages, now reduced to $1,200. The respondent’s contractual obligation is to put the applicant in the position he would have been in had the sale completed, subject to the applicant’s obligation to mitigate his loss. The respondent says the applicant could have sold the truck for more than $300, and notes he sold it to his son. Given the original advertised price of $2,500, ordinarily I might be inclined to agree. However, it is undisputed that the respondent knew the applicant was anxious to get the truck off his property as he was being evicted. This known fact supports the conclusion that the respondent acted reasonably in the circumstances by selling the truck quickly. It is also undisputed the truck was missing many parts when it was returned (presumably some of the same parts the respondent said were missing). The applicant also says that the tow truck had damaged the exhaust system. In all these circumstances, I find the applicant must pay the respondent $1,200, putting the applicant back into the position he would have been if the sale to the respondent had completed.

20.   Under the CRTA, the applicant is entitled to pre-judgment interest under the Court Order Interest Act (COIA) on the $1,200 award, from March 5, 2019, the date the respondent was supposed to pay the applicant. This equals $11.92.

21.   Under the CRTA and the tribunal’s rules, the successful applicant is generally entitled to reimbursement of their tribunal fees and reasonable dispute-related expenses. I find the respondent must reimburse the applicant’s $125 in tribunal fees. The applicant did not claim dispute-related expenses.

ORDERS

22.   Within 14 days of this decision, I order the respondent to pay the applicant a total of $1,336.92, broken down as follows:

a.    $1,200 in debt,

b.    $11.92 in pre-judgment interest under the COIA, and

c.    $125 in tribunal fees.

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

24.   Under section 48 of the CRTA, 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.

25.   Under section 58.1 of the CRTA, 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.