Date Issued: December 5, 2019

    File: SC-2019-002455

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Tong v. Vo, 2019 BCCRT 1369

Between:

LI TONG

Applicant

And:

PHUC MINH THU VO and ROYAL PACIFIC REALTY (KINGSWAY) LTD.

  RespondentS

INTRODUCTION

1.      This dispute is about an agreement to take over a home security contract after the sale of a property. The applicant, Li Tong, says that the respondent, Phuc Minh Thu Vo, agreed to take over the security contract for the house Ms. Tong sold to her.

2.      Ms. Tong also says that the other respondent, Royal Pacific Realty (Kingsway) Ltd. (Royal Pacific), represented Ms. Vo in the sale and negotiated the transfer of the security contract after the property was sold but before Ms. Vo took possession.

3.      Ms. Tong requests $1,283.00 reimbursement for the cost of cancelling the security contract as well as $790.00 for the cost of the security equipment left in the home when Ms. Vo took possession. Ms. Tong represents herself.

4.      Royal Pacific says that Ms. Tong is responsible for paying the fees for breaking her contract with the security company. It says that the security equipment was installed in the property before the sale and removing it was not a subject of the sales contract. It also says that it has no agency contract with Ms. Tong and that it fulfilled its duties to Ms. Vo. Royal Pacific is represented by the realtor involved in the sale of the home.

5.      Ms. Vo was properly served with the Dispute Notice but did not submit a Dispute Response. I discuss her default status below.

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 (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.

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, this dispute amounts to a “she said, it said” scenario with both sides calling into question the credibility of the other. 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.

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, 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.

ISSUES

10.   The issue in this dispute are:

a.    Did Ms. Vo or Royal Pacific breach an agreement entitling Ms. Tong to reimbursement of her security contract cancellation fees, and

b.    Is Ms. Tong entitled to reimbursement of the value of the security equipment?

EVIDENCE AND ANALYSIS

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

12.   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.

13.   It is undisputed that Ms. Tong sold her home to Ms. Vo on May 9, 2018 with a possession date of August 1, 2018. The property disclosure statement states that the unit does not have any equipment leases or security system contracts. The contract of purchase and sale does not mention the security system.

Did Ms. Vo or Royal Pacific breach an agreement entitling Ms. Tong to reimbursement of her security contract cancellation fees?

14.   After the property’s sale contract was signed on May 9, 2018, Ms. Tong contacted her security company to discuss options about her service. Ms. Tong says that the security company told her that she could either move her service to a new location or the new owner, Ms. Vo, could continue to use it.

15.   Ms. Tong does not argue that she had a written contract with Ms. Vo to take over the security contract. Rather, her argument is that Ms. Vo and Royal Pacific said that she would. A contract does not need to be written or signed, but when a contract is written and signed, it creates certainty about its terms and the parties’ intentions. When there is no written contract, the party trying to prove that a verbal contract exists must prove that the parties agreed on the essential terms of the agreement.

16.   Ms. Tong says that she told her realtor to contact Ms. Vo and ask whether she wanted to take over the contract and that Ms. Vo said she did. Ms. Tong provided a statement from her realtor who dealt with Realty Pacific. Ms. Tong’s realtor says that Ms. Vo confirmed that she would take over the security system. He says that he has emails and messages confirming this.

17.   I first note that some of the messages submitted are not in English and therefore I place no weight on these communications as it is unclear what they say.

18.   The contract shows that the closing date for the sale of the home was July 31, 2018. The evidence indicates that on July 12, 2018 Royal Pacific asked Ms. Tong’s realtor if the security alarm system belonged to the security company and had an accompanying monitoring contract or if was monitored by Ms. Tong. On July 13, 2018, Ms. Tong’s realtor told Royal Pacific that the security system belonged to the security company and that if Ms. Vo wanted it then she could take over the contract. On July 15, 2018, Royal Pacific told Ms. Tong’s realtor that Ms. Vo wanted to have a walkthrough of the property and that she would decide at that time if she wanted the security alarm system.

19.   Ms. Tong provided telephone logs to show that she spoke with the security company on September 10 and 12, 2018 and she says she was assured that Ms. Vo could take over the contract.

20.   The email messages show that on November 6, 2018 Ms. Tong’s realtor emailed Royal Pacific. He attached an email from Ms. Tong which said that the security company sent her a letter indicating that the contract was broken. Ms. Tong said in the email that she contacted the security company and they said Ms. Vo never called to set up the new account.

21.   Royal Pacific emailed Ms. Tong’s realtor on November 6, 2018 and said that Ms. Vo had called the security company and was told that since Ms. Tong did not cancel her account, they could not set up another account at the same address. Royal Pacific denied that it ever said Ms. Vo would take over Ms. Tong’s contract, it only said it would look into it. Royal Pacific told Ms. Tong’s realtor to get Ms. Tong to cancel her account and settle her payment.

22.   I accept Royal Pacific’s evidence that it was told by Ms. Vo that she could not set up another account. However, the question is whether Ms. Vo could take over Ms. Tong’s account not necessarily if she could set up a new one. Ms. Vo did not provide a Dispute Response or submissions, so it is impossible to tell what exactly she was told by the security company.

23.   Royal Pacific sent Ms. Tong’s realtor another email on November 14, 2018 saying that Ms. Vo contacted the security company and they said the contract could not be transferred. This is contrary to the information Ms. Tong said she received on more than one occasion and again there is no evidence coming directly from Ms. Vo before this tribunal that she was told this.

24.   Ms. Tong’s realtor sent her an email on January 11, 2019 assuring her that Ms. Vo clearly said she would take over the alarm system.

25.   I note that an adverse inference may be drawn against a party if that person or organization refuses to participate, meaning it is generally assumed that the other party’s position is correct. This is similar to when a respondent fails to provide any response at all to the dispute and is in default and the respondent’s liability is assumed.

26.   The evidence shows that Ms. Vo was interested in taking over the contract and called the security company. Pacific Realty says that Ms. Vo said it could not be done but there is no evidence to support this, not even a statement from Ms. Vo. Ms. Tong says that the security company told her that it could transfer the contract. Ms. Tong’s realtor says that Ms. Vo said she would take over the alarm system. Because Ms. Vo has not participated, I draw an adverse interest and assume that Ms. Tong’s position is correct. I have taken into account the evidence provided by Pacific Realty but since it is based on what Ms. Vo said and Ms. Vo has not provided evidence, I place little weight on it. Therefore, I find that Ms. Tong is liable for reimbursing Ms. Vo’s $1,283.00 cancellation fee.

27.   Ms. Tong is also entitled to $31.09 interest under the Court Order Interest Act (COIA) from the July 31, 2018 completion date to the date of this decision.

28.   I do not find Pacific Realty liable for any part of the cost of the cancellation. Pacific Realty has participated in the process and therefore I do not draw an adverse inference against it. Also, the evidence does not show that it made any promises to Ms. Tong. Ms. Tong’s realtor was present at the walkthrough of the property where the security system was discussed. Ms. Tong’s realtor was present when Ms. Vo told him that she would take over the alarm system. Therefore, I find Ms. Tong placed reliance on her own realtor and not on Pacific Realty that Ms. Vo was going to take over the security contract.

Is Ms. Tong entitled to reimbursement of the value of the security equipment? 

29.   Ms. Tong submits that Ms. Vo should reimburse her the value of the security equipment left at the property. The contract of purchase and sale does not mention the security system equipment. The property disclosure statement states that the unit does not have any equipment leases or security system contracts. Based on the evidence, this is inaccurate. Ms. Tong submitted that the information in the property disclosure statement was her realtor’s mistake. Ms. Tong does not have a remedy against Ms. Vo or Pacific Realty for her realtor’s mistake.

30.   I also note that Ms. Tong’s realtor told Pacific Realty that the security company owned the security system. He also indicated that the security company would repossess the security equipment. This shows that Ms. Tong does not own the equipment and therefore cannot ask for reimbursement of its value. Also, Ms. Tong has provided no documentation to support her claim of how much the equipment is worth. She has not proved that she owned it or that she had to pay the security company for its value.

31.   I again note that Ms. Vo is in default and I have made an adverse inference against her. However, it does not make sense to order Ms. Vo to pay the cancellation fee and then also charge her for the equipment, since the evidence does not show that Ms. Tong was charged anything additional for the equipment. Also, if Ms. Vo had taken over the contract, Ms. Tong would not have expected the equipment back.

32.   Based on the evidence, I find that Ms. Tong is not entitled to reimbursement for the amount of the security equipment left at the property when Ms. Vo took possession.

33.   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. As the applicant was largely successful in her claim, she is entitled to have her $125.00 tribunal fees reimbursed.

ORDER

34.   Within 30 days of this decision, I order Ms. Vo to pay Ms. Tong a total of $1,439.09, broken down as follows:

a.    $1,283.00 as reimbursement for the cancellation fee,

b.    $125.00 for tribunal fees.

c.    $31.09 for pre-judgement interest under COIA, and

35.   The applicant is also entitled to post-judgement interest under the COIA. The applicant’s other claims are dismissed.

36.   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.

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