Date Issued: November 27, 2019

File: SC-2019-001360

Type: Small Claims

Civil Resolution Tribunal

Indexed as: 0794718 BC Ltd v. Schiller, 2019 BCCRT 1335

Between:

0794718 BC LTD

Applicant

And:

SHELDON SCHILLER

Respondent

INTRODUCTION

1.      The applicant 0794718 BC LTD says it sold an appliance package, made up of a fridge, range, dishwasher, microwave, washer and dryer, to the respondent Sheldon Schiller. The applicant says the respondent paid a deposit but failed to pay the $2,672.88 balance as agreed.

2.      The respondent agrees that he bought a “kitchen package” but says he then bought a washer and dryer separately, also from the applicant. The respondent says he only owes money on the fridge but does not say how much. However, the respondent says the fridge is defective and leaky, but that the applicant refuses to repair it or take it back. The respondent also submits that the microwave and range were dented at the time of delivery. The respondent asks that the dispute be dismissed.

3.      The applicant is represented by business contact George Luc. The respondent is self-represented.

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 (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.

5.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.

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 make one or more of the following orders, where permitted under section 118 of the CRTA:

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

8.      The issue in this dispute is whether the respondent must pay the applicant the claimed $2,672.88 balance for an appliance package purchase.

EVIDENCE AND ANALYSIS

9.      In this civil claim, the applicant bears the burden of proof on a balance of probabilities. I have reviewed all of the evidence but only refer to the evidence and submissions as I find necessary to provide context for my decision.

10.   Based on the invoices filed in evidence, I find the following facts:

a.    On September 16, 2017, the respondent bought a range, dishwasher, microwave and fridge from the applicant for a total of $4,146.00.

b.    According to the invoice, the fridge price was $1,899.00 plus tax.

c.    The respondent paid $2,100.00 against the fridge invoice, leaving $2,273.88 owing.

d.    On October 26, 2017, the respondent bought a washer and dryer from the applicant for $1,399.00.

e.    The respondent paid $1,000 against the washer/dryer invoice, leaving $399.00 owing.

f.     The $2,273.88 and the $399.00 owing against these two invoices, taken together, is the claimed $2,672.88.

11.   The respondent does not dispute that $2,672.88 is the total outstanding balance on the applicant’s invoices. However, he submits he should not have to pay because the appliances are defective.

12.   Because the respondent is the one seeking to rely on the proposition that the appliances are defective, he bears the burden of proving the defects, on a balance of probabilities (see McCrea v. Fournier, 2017 PBCP 30 at paragraph 80).

13.   Specifically, the respondent says the fridge leaked and that the ice and water machine in the fridge door does not work. The respondent filed photographs in evidence that he says show the fridge leaked and was otherwise defective. The photographs show the top or sides of the fridge, some hardwood flooring, a corner in the kitchen, an ice tray containing a block of ice, and a scratch on what appears to be the range. I find the photos do not show the fridge leaks.

14.   As well, the respondent submits that he had to replace his hardwood flooring after the fridge leaked. However, he did not file evidence, such as a receipt for the replacement flooring, to prove the replacement occurred.

15.   The respondent says the range arrived scratched and the microwave dented. However, his photograph of the range was taken about 2 years after he bought it. The applicant says that the respondent raised these issues for the first time in this proceeding. I find the photos do not show the range scratch was caused by the applicant, given the passage of time. The photos do not show the alleged dent in the microwaved.

16.   While I understand that the respondent says he has problems with the ice maker and water dispenser, he did not prove any defect in these parts of the fridge when he bought it. Instead, the photographs suggest a lack of routine maintenance.

17.   One photograph shows a broken or worn piece of the fridge’s door seal. I find this photograph consistent with two years of regular wear and tear. The photograph does not prove that there was a defective seal at the time of purchase.

18.   Having closely reviewed the photographs, I find that the appliances were not damaged or defective at the time of purchase or delivery.

19.   I find that the respondent must pay the applicant the $2,762.88 owing on the appliances, within 30 days of this decision.

20.   The Court Order Interest Act applies to the tribunal. The applicant is entitled to pre-judgement interest on the $2,762.88 from November 25, 2017, when the respondent says it was owing, to the date of this decision. This equals $87.45.

21.   Under section 49 of the CRTA and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. I find the applicant is entitled to reimbursement of $125 in tribunal fees. The applicant did not claim dispute-related expenses.

ORDERS

22.   Within 30 days of the date of this order, I order the respondent to pay the applicant a total of $2,885.33, broken down as follows:

a.    $2,672.88 being the amount owing for the appliances,

b.    $87.45 in pre-judgment interest under the Court Order Interest Act, 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.