Date Issued: March 4, 2020

File: SC-2018-009198

Type: Small Claims

Civil Resolution Tribunal

Indexed as: ASAP Restoration Ltd. v. 0938430 B.C. Ltd, 2020 BCCRT 251

Between:

ASAP RESTORATION LTD.

Applicant

And:

0938430 B.C. LTD

Respondent

INTRODUCTION

1.      The applicant, ASAP Restoration Ltd., says the respondent, 0938430 B.C. Ltd, owes $1,493.75 in contractual interest for late payment of an invoice. In this dispute, the applicant initially claimed for the underlying invoice amount and not contractual interest. It subsequently withdrew all claims for the invoice amount and amended the Dispute Notice to claim for contractual interest.

2.      The respondent did not provide a response to the amended Dispute Notice or any evidence or submissions, though it had the opportunity to do so.

3.     The parties are represented by their employees or principals.

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.      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.

ISSUE

8.      Must the respondent pay the applicant $1,493.75 in contractual interest?

EVIDENCE AND ANALYSIS

9.   In a civil claim such as this, the applicant bears the burden of proof, on a balance of probabilities. I have only addressed the arguments to the extent necessary to explain my decision.

10.   It is undisputed that the applicant boarded up windows for the respondent in June and July 2017. The applicant invoiced the respondent on August 30, 2017, for $3,946.32. As referenced above, this amount is not in dispute as the applicant says the respondent paid it on March 6, 2019.

11.   The applicant issued a second invoice to the respondent dated March 1, 2019, for $1,493.75 in late interest, calculated from August 30, 2017 to March 1, 2019. The applicant does not say what interest rate it charged.

12.   The respondent provided no submissions, though the applicant says the respondent refused to pay this amount.

13.   Both parties chose not to provide evidence.

14.   I considered making an adverse inference against the respondent as it provided no evidence or submissions. Where a respondent files a response but has since failed to comply with the tribunal’s directions as required, or failed to provide evidence or submissions, an adverse inference may be drawn against that respondent. In such circumstances the tribunal will generally assume the applicant’s position is correct.

15.   However, in this dispute I do not find it appropriate to make an adverse inference against the respondent. The applicant’s submissions indicate the respondent participated in early facilitation discussions with the tribunal. The applicant acknowledges the respondent paid the August 30, 2017 invoice amount. Tribunal notes and the applicant’s submissions show the respondent disagreed with the claim for contractual interest. The respondent did not provide evidence but the same can be said of the applicant.

16.   I also find the applicant’s claim vague on relevant details. The applicant says the respondent “accepted all financial obligations of the main invoice”, but those obligations are largely unexplained and undocumented. The applicant also does not say what effective rate of interest it charged, which I find is a key detail. I note that section 4 of the federal Interest Act says that when an interest rate in a contract is expressed as a rate or percentage for any period less than one year, if the contract does not contain an express statement of the equivalent yearly interest rate or percentage, the maximum allowable interest rate is 5% per year. I am unable to assess whether the parties’ agreement complies with this provision.

17.   The applicant also chose not to provide any documents that would provide this information, even though the applicant would presumably have access to them.

18.   In the circumstances, I do not find the respondent’s lack of evidence and submissions justifies making an adverse inference against the respondent. Given the lack of evidence, I conclude the applicant has not met the burden of proof for its claim of contractual interest.

19.   Having said that, I find the applicant is entitled to pre-judgment interest under the Court Order Interest Act (COIA). The COIA applies to the tribunal. Although the applicant withdrew its claim for $3,946.32 in debt, the applicant did not withdraw its claim for pre-judgment interest and tribunal fees.

20.   There is no dispute that the applicant invoiced the respondent for $3,946.32 on August 30, 2017, which debt was paid on March 6, 2019. I infer the invoice was due immediately, in the absence of other submissions or evidence on the matter. I find the applicant is entitled to pre-judgement interest on this amount for that period of time. This equals $152.16.

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.

22.   Although the applicant withdrew its claim for $3,946.32, it collected this amount after submitting its application for dispute resolution. It has also succeeded on its claim for pre-judgment interest under the COIA. I find the applicant is entitled to reimbursement of $175 in tribunal fees. As the applicant claimed no dispute-related expenses I do not order any.

ORDERS

23.  Within 14 days of the date of this order, I order the respondent to pay the applicant a total of $327.16, broken down as follows:

a.    $152.16 in pre-judgment interest under the COIA, and

b.    $175.00 in tribunal fees.

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

25.  The applicant’s remaining claims are dismissed.

26.  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.

27.  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.