Date Issued: February 21, 2020

File: SC-2019-006568

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Honghot Enterprises Inc v. Wang, 2020 BCCRT 209

Between:

HONGHOT ENTERPRISES INC

Applicant

And:

KE WANG and Xiaoqing Wang

Respondents

INTRODUCTION

1.      The applicant, Honghot Enterprises Inc, claims that the respondents, Ke Wang and Xiaoqing Wang, owe $2,000 in unpaid fees for asbestos abatement services. The respondents deny the applicant’s claim arguing that they do not owe any additional payment because the applicant failed to complete their contractual services.

2.     The applicant is represented by a business representative. The respondents are 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. 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.

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.      Where permitted by section 118 of the CRTA, in resolving this dispute the tribunal may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the tribunal considers appropriate.

ISSUES

7.      The issues in this dispute are:

a.    Do the respondents owe $2,000 for the balance of the parties’ fixed price asbestos abatement contract?

b.    Are the respondents entitled to a setoff from the amount owed because the applicant did not perform their contractual obligations?

EVIDENCE AND ANALYSIS

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

9.      It is undisputed that the respondents agreed to pay $8,000 for asbestos abatement services for a house that was going to be demolished.

10.   The applicant provided a copy of the contract written partially in English. The applicant did not provide a translation of non-English portion of the document as required by tribunal rule 1.7(5). In the absence of a translation, I only considered the English portions of the contract in making this decision.

11.   The applicant claims that they completed the asbestos abatement services which they confirmed with a June 6, 2019 clearance letter. The applicant also provided a photograph showing the building demolished as of July 3, 2019.

12.   It is undisputed that the respondents only paid the applicant the equivalent of $6,000. Accordingly, I find that the respondents owe $2,000 for asbestos abatement services under the contract.

13.   However, the respondents argue that they did not entirely receive what they bargained for. If the applicant has breached the contract, I find the respondents’ resulting damages can be deducted from the $2,000 the respondents owe the applicant.

14.   The respondents claim that they performed some of the applicant’s asbestos abatement work themselves by cleaning the drywall before the applicant performed their services. The respondents also claim that the applicant left mud on a concrete wall which needed to be chiseled off. The respondents provided photographs showing a screw in a wall and a white and brown substance on a wall.

15.   The respondents have the burden of proving that they are entitled to a setoff against the applicant’s claim because the applicants breached the contract. However, the respondents have not provided any evidence that the contract required the applicant to remove the drywall and insulation or the mud on the concrete wall. The English portion of the contract does not state that the applicant was required to provide these services.

16.   In addition, the respondents did not prove that they actually needed to perform these asbestos abatement services themselves. Although the respondents said that they cleaned the drywall before the applicant performed their asbestos removal services, the respondents did not provide an explanation why they had to do so. In addition, the respondents did not provide any evidence that the applicant refused to clean the drywall.

17.   The respondent also argued that the applicant reused an old testing report instead of obtaining a new report. The respondent provided a photograph of an asbestos report dated August 12, 2017 which was posted on the property. The respondent claims that the applicant told them that a new test report would cost $3,000.

18.   However, the respondent did not prove that the contract required the applicant to obtain a testing report. The English portion of the contract itemizes the applicant’s services as labour, materials, air clearance and disposal. The contract does not state that the applicant must get an asbestos testing report at all. Accordingly, I am not satisfied that the applicant was contractually obligated to get a testing report.

19.   I find that the respondents have not proved that they are entitled to any setoff from the outstanding balance owed under the contract.

20.   I find the respondent must pay the applicant a total of $2,000.

21.   The Court Order Interest Act applies to the tribunal. The applicant is entitled to pre-judgement interest on the $2,000 owed for the asbestos abatement services from July 6, 2019, the date the payment was due, to the date of this decision. This equals $24.68.

22.   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.

ORDERS

23.  Within 15 days of the date of this order, I order the respondent to pay the applicant a total of $2,149.68, broken down as follows:

a.    $2,000 as payment for the asbestos abatement services,

b.    $24.68 in pre-judgment interest under the Court Order Interest Act, and

c.    $125 in tribunal fees.

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

25.  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.

26.  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.