Date Issued: April 22, 2020

File: SC-2019-009060

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Alexander v. Watt, 2020 BCCRT 436

Between:

MATTHEW ALEXANDER

Applicant

And:

DYLAN D’ARTEGAN WATT

Respondent

REASONS FOR DECISION
Tribunal Member:	Lynn Scrivener

INTRODUCTION

1.      This dispute is about concert tickets. The applicant, Matthew Alexander, says that he paid the respondent, Dylan D’Artegan Watt, $350 for concert tickets. According to the applicant, he never received the tickets or a refund of his money. He asks for an order that the respondent return his $350. The respondent says that he was not involved in this matter.

2.      The parties 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. Some of the evidence in this dispute amounts to a “he said, he said” scenario. The credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. Here, I find that I am able to assess and weigh the documentary 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 in Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, in which the court recognized the tribunal’s process and that oral hearings are not necessarily required where credibility is in issue.

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.

ISSUE

7.      The issue in this dispute is whether the respondent contracted with the applicant for the sale of concert tickets such that he is responsible for the $350 claimed by the applicant.

EVIDENCE AND ANALYSIS

8.      In a civil dispute like this one, an applicant bears the burden of proof on a balance of probabilities. The applicant provided evidence and submissions in support of his position. The respondent filed a Dispute Response, but did not provide any evidence and indicated that he would not be responding to the applicant’s submissions. While I have considered all of the information provided by the parties, I will refer to only what is necessary to provide context to my decision.

9.      The applicant says that he responded to an advertisement on Craigslist for the sale of concert tickets. The applicant says that he was concerned about sending money to a person he had never met, so he asked the seller to do 3 things: meet on video chat, send him a copy of his picture identification, and send him a copy of his current address.

10.   The applicant had a video chat with the seller during which he could see the seller’s face. The seller sent the applicant an image of his British Columbia Services Card and proof of his current address in the form of an image of what appears to be a document from the Canada Revenue Agency. The applicant says the face of the person in the video chat matched the face on the identification.

11.   The applicant says he sent the seller $350 by e-transfer on May 15, 2019. When the applicant did not receive the tickets as promised, he sent the seller several text and email messages asking for the tickets or the return of his money. The seller stated that he would send the money back, but in a May 18, 2019 message, advised that the transaction would not go through. He offered to meet the applicant in person to drop off cash, but this did not occur. The seller stated on May 20, 2019 that the funds were “on hold” but that he was still attempting to get the money to the applicant. The applicant had involved the police by this point, but the seller did not return the funds. The applicant sought assistance from his bank, but was not successful in recovering his money.

12.   The evidence before me shows that the applicant sent a $350 e-transfer to the seller. The email messages in evidence confirm that someone received the applicant’s funds, did not provide the concert tickets in exchange, and did not return the money despite saying that he would. The key issue is whether that person is the respondent.

13.   The email address, identification, and income tax documentation all bear the respondent’s name. As noted above, the applicant says the face on video chat matched the face on the identification. He also says that the police contacted the seller using the information he had received. The applicant’s position is that the respondent is the person who received his money and is responsible for returning it. In his Dispute Response, the respondent simply stated that he was not “involved in the claim”.

14.   The courts have said that an adverse inference may be drawn against a party where, without sufficient explanation, they fail to produce evidence or call a witness expected to provide supporting evidence. An adverse inference should only be drawn after a “prima facie” case (being a case that appears on its face to have merit) has been established by the party bearing the burden of proof (see Port Coquitlam Building Supplies Ltd. v. 494743 B.C. Ltd., 2018 BCSC 2146).

15.   As noted, the respondent did not provide evidence to support his position. He also did not explain how, if he was not involved with the matter, the person who the applicant saw on the video chat could match the image on identification bearing his name. He also did not provide information about identity theft or any other explanation for someone else having his identification card and personal income tax information.

16.   In the circumstances of this case, I draw an adverse inference against the respondent. I find that it is more likely than not that the respondent is the person who received the applicant’s funds but failed to deliver the promised concert tickets. Accordingly, I find that the respondent is responsible for the $350 claimed by the applicant.

17.   The Court Order Interest Act applies to the tribunal. The applicant is entitled to pre-judgment interest on the $350 cost of the concert tickets from May 15, 2019 (the date of the e-transfer) to the date of this decision. This equals $6.43.

18.   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

19.   Within 30 days of the date of this order, I order the respondent to pay the applicant a total of $481.43, broken down as follows:

a.    $350 in debt,

b.    $6.43 in pre-judgment interest under the Court Order Interest Act, and

c.    $125 in tribunal fees.

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

21.   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. The Minister of Public Safety and Solicitor General has issued Ministerial Order No. M086 under the Emergency Program Act, which says that tribunals may waive, extend or suspend a mandatory time period. The tribunal can only waive, suspend or extend mandatory time periods during the declaration of a state of emergency. After the state of emergency ends, the tribunal will not have this ability. A party should contact the tribunal as soon as possible if they want to ask the tribunal to consider waiving, suspending or extending the mandatory time to file a Notice of Objection to a small claims dispute.

22.   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.