Date Issued: May 1, 2020

File: SC-2020-001250

Type: Small Claims

Civil Resolution Tribunal

Indexed as: J.B. (dba ABC Daycare) v. E.M., 2020 BCCRT 476

Between:

J.B. (dba ABC DAYCARE)

Applicant

And:

E.M.

Respondent

REASONS FOR DECISION
Tribunal Member:	Kristin Gardner

INTRODUCTION

1.      This dispute is about daycare fees. The applicant daycare, J.B. (dba ABC Daycare), says the respondent, E.M., owes $1,870 in daycare and late fees because she failed to give one full month notice as required by their contract.

2.      The respondent says her son was abused by the daycare and so she removed him and should not have to pay anything.

3.      The parties are each self-represented.

4.      In the published version of this decision I have anonymized the parties’ identities due to the sensitive nature of the allegations of the respondent and to protect the identity of the respondent’s minor child.

JURISDICTION AND PROCEDURE

5.      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.

6.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am able to assess and weigh the documentary evidence and submissions before me. Because the underlying facts are not in dispute and there are no credibility issues to determine, an oral hearing is not necessary.

7.      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.

8.      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

9.      The issue in this dispute is whether the respondent owes the applicant $1,870 in daycare and late fees for the months of February and March 2020.

EVIDENCE AND ANALYSIS

10.   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 her position. The respondent filed a Dispute Response but did not file any evidence or submissions in response to the applicant’s submissions, despite having the opportunity to do so. While I have considered all the information provided by the parties, I will refer to only what is necessary to provide context to my decision.

11.   In the Dispute Response, the respondent agreed that the applicant’s description of the claim was accurate, including the following:

a.    On January 28, 2020, the respondent was sent an invoice for daycare fees owing for the month of February.

b.    Payment was not received by the noted cut off time.

c.    On February 3, a reminder email was sent to the respondent requesting payment of the invoice without late penalties if paid that day.

d.    The respondent replied that her child would not be attending the daycare and that she did not agree to pay the invoice or any associated fees.

e.    The contract the respondent signed provided for a 30-day notice period prior to her child’s last day at the daycare.

12.   I find the applicant’s submitted evidence shows that the respondent enrolled her son at the daycare as of January 13, 2020. There was a daily “drop in” rate ($45/day) for January and the child was to attend the daycare full-time starting February 1. The monthly rate was $875, less the government subsidy of $100/month.

13.   On January 28, 2020, the applicant emailed the respondent her $775 invoice. The respondent emailed back that evening, asking if she could pay the invoice on February 1. The applicant confirmed that the cut off for payment by e-transfer was 9:30 a.m. on February 1.

14.   February 1 was a Saturday. The respondent did not pay the invoice. On February 3, 2020, the applicant sent the respondent an email reminder about the outstanding invoice, to which the respondent advised that her son would not be returning to the daycare but did not mention any allegation of abuse. When the applicant told the respondent that she was still responsible to pay fees for February, the respondent replied that she would not pay the February invoice and that the police would be contacting the applicant. The respondent did not tell the applicant at that time why she had involved the police.

15.   The only information provided by the respondent in the Dispute Response is that she removed her son from the daycare because her son told her that he was sexually abused there and, on that basis, she did not agree to pay the fees claimed.

16.   Abuse of a child is a very serious allegation. It calls for further information, evidence or submissions, but none were given. Further, the applicant provided evidence and submissions that call this allegation into question, which are set out below. As noted above, the respondent chose not to provide evidence or make any submissions in reply.

17.   The applicant’s evidence shows that on the morning of January 28, the respondent posted on a social media site for nannies and babysitters. Her post said that she had an “immediate need” for a nanny for her son. This was before the respondent received the invoice from the applicant for February fees. The applicant says this shows the respondent did not intend to pay the daycare fees for February 2020. I agree.

18.   The daycare attendance sheets for January 29 and 30 show that the respondent’s son attended the daycare on those dates, which is undisputed. Therefore, I find that the respondent was seeking other care options before any allegation of abuse arose.

19.   The respondent did not tell the daycare that her son would no longer be attending the daycare until after she received the respondent’s follow up email on February 3. The respondent advised the applicant by email that night that the police were involved. However, the applicant says that as of March 11, the daycare had not been contacted by the police or Child Protective Services about an investigation into the respondent’s allegations. I accept this evidence, which is undisputed.

20.   I infer the respondent’s argument is that if her child was sexually abused at the daycare, it would constitute a breach of the contract. But, in the absence of any evidence or submissions about the alleged incident, I place no weight on that argument. Therefore, I have determined the respondent’s obligations based on the contract she signed. As noted above, the respondent has not otherwise disputed the terms of the contract.

21.   I turn then to the claimed damages.

22.   The applicant seeks to recover full fees for February and March 2020 at $875/month, plus $120 in late fees, for a total of $1,870. The respondent’s son was scheduled to start full time care on February 1, and I accept the applicant relied on that registration and the contract that the respondent signed. The contract provides that the respondent must give one full month notice, which must be given on the last day of the month prior to the child’s last day.

23.   Notice was provided to the daycare on February 3, which is less than the required month notice to cease care at the end of February. Therefore, I find the respondent is responsible under the contract to pay fees for February and March at $875/month, for a total of $1,750.

24.   There was no provision in the contract submitted in evidence about late fees. The contract makes reference to a parent handbook, but that handbook was not in evidence. While the invoice included a notation about a late fee payment charge of $20/day, I have no evidence that this was an agreed contractual term and no evidence about how the applicant calculated $120 in late fees given there has been no payment made to date. Therefore, I dismiss the applicant’s claim for $120 in late fees.

25.   The Court Order Interest Act applies to the tribunal. The applicant is entitled to pre-judgement interest on the $1,750 from February 1, 2020, the date the invoice was due, to the date of this decision. This equals $8.51.

26.   In accordance with the CRTA and the 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. No dispute-related expenses were claimed.

ORDERS

27.   Within 21 days of the date of this order, I order the respondent to pay the applicant a total of $1,883.51, broken down as follows:

a.    $1,750 in payment of outstanding daycare fees;

b.    $8.51 in pre-judgment interest under the COIA; and

c.    $125 in tribunal fees.

28.   The applicant is entitled to post-judgment interest, as applicable. The applicant’s remaining claim is dismissed.

29.   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.

30.   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.