Date Issued: December 18, 2019

   File: SC-2019-006192

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Goshu v. Iqbal, 2019 BCCRT 1424

Between:

FASIL GOSHU

Applicant

And:

                        JOHEN IQBAL

 Respondent

INTRODUCTION

1.      This dispute is about the repayment of a $2,200.00 loan. The applicant, Fasil Goshu, says he lent the money to the respondent, Johen Iqbal, and that the respondent refuses to repay it. The applicant represents himself.

2.      The respondent agrees that the applicant transferred him $2,200.00. The respondent has a limousine service and the applicant sometimes drives for him. He says the money was to pay for the limousine’s insurance. He says that the applicant then had an accident and that the applicant said the $2,200.00 would go toward the cost of the damage. The respondent also says that the applicant kept the limousine for 2 weeks and did not give the applicant any money for the time he drove the limousine. He also says the applicant later vandalized the limousine. The respondent says he should not have to pay back the $2,200.00 for these reasons. The respondent represents himself.

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, he 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 owes the applicant $2,200.00.

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.      However, part of the respondent’s argument is that he should not have to pay the applicant the $2,200.00 because the applicant damaged his limousine and also kept it for a period of time without paying the respondent for its use. At law, the burden of proof shifts to the respondent to establish a set-off.

10.   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.

11.   It is undisputed that the respondent runs a limousine service and that the applicant occasionally drives for him on a part-time contract basis. The applicant is not the respondent’s employee. Therefore, the Employment Standards Act does not apply to this dispute and neither party suggests it does. The parties agree that the applicant transferred $2,200.00 to the respondent in May 2019.

12.   The applicant says that the respondent told him that he had financial problems and needed to buy insurance and make a lease payment. The applicant says that the respondent said that he would pay him back the $2,200.00 in a month. The applicant also states that the respondent then gave him excuses about why he could not pay and then stopped replying to the applicant’s attempts at communication. For the reasons explained below I find that the applicant did lend the respondent $2,200.00 which was to be repaid in a month.

13.   The respondent says that he has two limousines, but he did not have insurance on one of them, so the applicant agreed to pay the $2,200.00 because he wanted to drive it.

14.   The respondent provided text messages going back to November 2018. Most of them are about organizing limousine services, although it is unclear who they were sent to. Some of them involve the applicant as there is a picture of the applicant’s permit and driver’s license. Therefore, the evidence shows that the applicant was driving one of the respondent’s limousines from before May 2019 and there is no suggestion in the texts that part of the agreement was that the applicant would pay for the insurance.

15.   I also note that the respondent has acknowledged that he was responsible for paying the money back, but gave other reasons relating to an accident in June 2019 and vandalism in August 2019 to explain why he should not be held responsible for the $2,200.00. I find that the admitted expectation that the respondent was to pay the money back makes the money transferred more likely a loan than a fee the applicant agreed to pay for insurance to operate the limousine. I also accept the applicant’s submission that the money was to be paid back within a month as the texts indicate the applicant started asking for it back in June 2019.

16.   The respondent says that the applicant was in an accident on June 1, 2019 and that the accident was the applicant’s fault. The respondent says that there was no Insurance Corporation of British Columbia (ICBC) claim. The respondent does not explain what he means by it not being an ICBC claim. The respondent says that the applicant apologized and said he would pay for all the damage and noted that the respondent had his money already, which I infer means the $2,200.00. The respondent has not provided any proof that the applicant said this.

17.   The applicant denies that he was in an accident and points out that the respondent did not make an ICBC claim and he did not start a claim against him. The applicant also notes that if he had an accident one would presume that the respondent would have been chasing him for the money but that the text messages (described below) show that it was the applicant who was pursuing the respondent for money.

18.   There are large gaps between the parties’ text messages from December 2018 to June 2019 when the accident is alleged to have happened and nothing from around the crucial June 1, 2019 date when the accident was supposed to have occurred. The respondent did provide a pre-trip inspection report dated May 31, 2019 showing there was no problem with the limousine on that date.

19.   The evidence shows that the applicant texted the respondent on June 12, 2019 and asked him to call him back, but the respondent said he was busy. The applicant then texted the respondent on June 14, 2019 and asked why he was not answering his call. The applicant again texted the respondent on June 15, 2019 and said he did not understand what the problem was but that they should talk, otherwise they would end up with a problem. The applicant asked the respondent to call or answer the phone.

20.   The respondent did not address these texts. He did provide a receipt from a tire company showing that he purchased and put winter tires on a vehicle on June 17, 2019. The receipt does not state that the original tires were damaged. The respondent submitted a receipt dated July 13, 2019 which the respondent has labelled a car repair payment receipt. The receipt shows the respondent had a limousine inspected on July 13, 2019. Windshield washers, fluid, and bulbs were replaced, battery cables were retorqued, and other routine work was done, but the receipt does not show that the limousine was in an accident or that body work was done on the vehicle.

21.   Based on the evidence, I find that it is unlikely that the applicant damaged the respondent’s limousine in early June 2019. It is clear from the texts that the applicant is trying to contact the respondent who is refusing to respond. The text messages also do not show the respondent accused the applicant of being in an accident. Further, the respondent’s receipts do not show that the limousine was in an accident.

22.   The respondent has not provided corroborating evidence of an accident. Therefore, I find the respondent has not established that he is entitled to a set-off of the amount owed due to the applicant causing damage to the vehicle. I also do not accept the respondent’s argument that the applicant said he could use the $2,200.00 transferred to him to cover damages from an accident.

23.   The respondent also says that he gave the applicant jobs after June 1, 2018 and that the applicant took his limousine for two weeks and did not return it until June 28, 2019. The applicant acknowledges that he did some additional jobs for the respondent. He also says he kept the limousine at his house but says he did it as a favour to the respondent who was going through a difficult personal time which involved him having to move and not having adequate parking at his new address for the limousine.

24.   The applicant says the limousine was only at his house for one week and he did not use it to make money during this time period as he had a full-time job Monday to Friday. The respondent has not shown that he made any attempt to get the limousine back from the applicant or that he was not just parking it at his house. There also is no proof that the applicant drove the limousine to make additional money that he was supposed to give to the respondent. I find that the evidence does not show that the respondent should not have to pay the $2,200.00 back because the applicant made money which should have gone to the respondent in June 2019.

25.   There is a gap in the record of text communications provided from around this time but texts shows that the applicant continued to attempt to get his money back. On July 30, 2019, the applicant texted the respondent that he was not answering his phone and asked about his plan to pay the $2,200.00. He asked the respondent if he was stealing it. The applicant said he wanted to hear the respondent’s “last word” on things because he was out of patience and going to do what he had to do.

26.   The respondent did not provide an explanation as to why he did not respond to these texts. He does state that on August 4, 2019 the applicant came to his house and “broke” one of the limousine’s tires. I note that one of the texts dated December 10, 2018 shows what appears to be a damaged tire. This is at least five months earlier than when the respondent alleges that the applicant vandalized his vehicle’s tire. I find that there is no proof that the respondent “broke” the respondent’s limousine tire in August 2019 such that the respondent would be entitled to keep the applicant’s money to compensate him for the damage.

27.   Overall, based on the evidence, I prefer the applicant’s version of what happened as it is more consistent with the other evidence. I find that the applicant loaned the respondent $2,200.00 in May 2019 and the respondent refused to repay it and has not provided a persuasive explanation for why he should not have to do so. Therefore, the applicant is entitled to repayment of the $2,200.00 loan.

28.   The Court Order Interest Act (COIA) applies to the tribunal. I find the applicant is entitled to interest on the $2,200.00 from the date he loaned the respondent the money on May 29, 2019 to the date of this decision. This equals $23.98.

29.   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 successful in his claim, I find the respondent must also pay the applicant his $125.00 tribunal fees.

ORDERS

30.  Within 30 days of this decision, I order the respondent to pay the applicant a total of $2,348.98 broken down as follows:

a.    $2,200.00 in debt,

b.    $23.98 in pre-judgment interest under the COIA, and

c.    $125.00 in tribunal fees.

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

32.  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.

33.  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.