Date Issued: December 5, 2019

    File: SC-2019-004958

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Bahmutsky v. Big Joes Movers Ltd., 2019 BCCRT 1370

Between:

MOSHE (MICHAEL) BAHMUTSKY

Applicant

And:

BIG JOES MOVERS LTD.

  Respondent

INTRODUCTION

1.      This dispute is about a contract for moving services. The applicant, Moshe (Michael) Bahmutsky says that the respondent, Big Joes Movers Ltd., overcharged him for moving services and put extra unauthorized charges on his credit card. The applicant requests the $2,928.45 he says he was overcharged. The applicant represents himself.

2.      The respondent says that the applicant was charged the correct amount based on the weight of his goods. It says that the applicant authorized the amount charged to his credit card. An organizational contact represents the respondent.

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. In some respects, this dispute amounts to a “he 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.

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 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

7.      The issue in this dispute is whether the respondent breached the parties’ moving services agreement by charging too much and, if so, what is the correct remedy.

EVIDENCE AND ANALYSIS

8.      In a civil dispute such as this, the applicant must prove his claim. He bears the burden of proof on a balance of probabilities.

9.      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.

10.   It is undisputed that the parties entered into an agreement for the respondent to move the applicant’s goods.

11.   The applicant says that he hired the respondent on June 4, 2019. He says that the respondent estimated that it would cost $3,471.30 based on the respondent’s evaluation that the good’s weight was 5,000 pounds. It is undisputed that the applicant paid a $500.00 deposit on his credit card on June 5, 2019. The respondent moved the applicant’s goods on June 10, 2019 and delivered them on June 11, 2019.

12.   The applicant says that upon delivering the goods, the invoice stated that the applicant owed the respondent $7,928.45 (minus the $500.00 deposit) because it turned out the weight of his goods was 12,000 pounds. The applicant says that the respondent should have said this at the beginning and that he thought it was an experienced “evaluator” and should have known the weight of the goods.

13.   The respondent says that it charged the applicant the proper amount based on the weight of his goods.

The terms of the agreement

14.   The applicant provided an unsigned contract with the date not visible. It has a typewritten weight that is crossed out and is replaced with a weight of 11,420 pounds. It says the total cost will be $3,471.30 and shows that the applicant made a $500.00 deposit on June 5, 2018. It is unclear who crossed out the weight amount and replaced it with 11,420 pounds or when this was done.

15.   I note though the rate per pound is .57 and this times by 5,000 would equal the $2,850.00 total weight charges shown on the first version of the contract. This supports the applicant’s claim that the original estimate was based on his goods weighing 5,000 pounds. However, again the contract is not signed and there is no indication it is binding as opposed to being an estimate. Also, that weight is crossed out and replaced with the accurate weight, although the other totals are not then adjusted. Because even the first version of the contract has the corrected higher weight indicated, I find this suggests that the applicant knew before the move that the weight estimate was inaccurate.

16.    Both parties have provided the contract from after the move dated June 11, 2018. The applicant’s version is unsigned and the respondent’s version is signed. They both state that the weight was 11,420 pounds and the total cost was $7,928.45. The respondent has provided the weight slips for the van and the truck which show the weight was 11,420 pounds. The applicant does not dispute that this is how much his goods weighed.

17.   The respondent’s version of the contract shows that the balance due was $7,428.00 (after the $500.00 deposit). The applicant signed and noted on the contract that he paid $5,000.00. The contract states that the signer accepts the charges as shown. It does not say that the $5,000.00 is payment in full. It also does not indicate that any discount was applied.

18.   The applicant states that when the respondent arrived with the invoice, he negotiated with the respondent and it agreed to only charge $5,000.00. The applicant says that he paid the remaining $4,500.00 on his credit card and signed the invoice with the wrong amount of $7,928.45 showing. He does not say why he signed the invoice with what he says is the wrong amount indicated. The applicant states that it was a surprise when he saw two new transactions on his credit card the next day for $2,428.45 and $500.00. The applicant says that he did not authorize these charges.

19.   The respondent states that it explained all terms and conditions to the applicant before he signed the contract and paid the $500 deposit. The respondent submits that it told the applicant the total cost of the service by telephone before the start of the trip. The respondent also states that when the move was completed the applicant signed the bill and paid only a $4,500.00 portion, in addition to the $500.00 already paid. The respondent says that the applicant told it to charge his other credit card, which he had used upon booking, with the remaining balance.

20.   The applicant sent the respondent an email on June 13, 2019 stating that there were two illegal transactions pending for $500.00 and $2,428.95. The respondent almost immediately emailed the applicant back stating that the transactions were the balance owing for the move. The respondent stated that the applicant gave it authorization to make the transactions for the rest of the amount owed. The applicant responded that he only gave authorization for $5,000.00 and told the respondent to reverse the last two transactions.

21.   I find that the final contract shows the amount owing and the applicant accepted those charges by signing it. He did not write on the contract at that point that $5,000.00 was the total amount he accepted as owing. And as noted, he also does not dispute, and the evidence shows, that 11,420 pounds was the actual weight of his goods. He has not proved that the respondent contracted to deliver his goods for a final cost of $5,000.00 rather than the $7,928.45 he acknowledged owing by signing.

22.   I acknowledge the applicant’s argument that the evaluation of the weight of the goods should have been more accurate at the outset. However, based on the fact that the weight was changed on the original contract and the respondent’s statement that he told the applicant about the actual weight before moving the goods, I find that nothing turns on this. The final contract also indicated the actual weight of the goods and the applicant expressly authorized the full charges by signing the contract.

23.   Because the applicant has the burden of proving his case, I find that he has not established his claim on the balance of probabilities. Therefore, he is not entitled to reimbursement of the $2,928.45 he says he was overcharged.

24.   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 unsuccessful in his claim, he is not entitled to have his tribunal fees or expenses reimbursed.

ORDER

25.   I dismiss the applicant’s claims and this dispute.