Date Issued: May 7, 2020

File: SC-2020-000634

Type: Small Claims

Civil Resolution Tribunal

Indexed as: 2 Burley Men Moving Ltd. v. Delmage, 2020 BCCRT 498

Between:

2 BURLEY MEN MOVING LTD.

Applicant

And:

CHARLES BENJAMIN R DELMAGE

Respondent

And:

2 BURLEY MEN MOVING LTD.

Respondent BY COUNTERCLAIM

REASONS FOR DECISION
Tribunal Member:	Chad McCarthy

INTRODUCTION

1.      This dispute is about payment for a residential move and alleged moving damage to possessions.

2.      The respondent (and applicant by counterclaim), Charles Benjamin R. Delmage, hired the applicant (and respondent by counterclaim), 2 Burley Men Moving Ltd. (Burley), for a long-distance residential move. Burley says Mr. Delmage did not pay for the move and claims $5,000, the maximum amount for a Civil Resolution Tribunal (tribunal) small claims dispute. Mr. Delmage says Burley damaged his new home and possessions, and delivered the possessions late. He claims $5,000.

3.      Burley is represented by an employee. Mr. Delmage is self-represented.

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. This dispute involves a “it said, he said” scenario in some respects, with each side calling into question the credibility of the other. Credibility of witnesses cannot be determined solely by the test of whose personal demeanour appears to be the most truthful in a courtroom or tribunal proceeding. In the decision Yas v. Pope, 2018 BCSC 282, the court recognized that oral hearings are not necessarily required where credibility is in issue. Keeping in mind that the tribunal’s mandate includes proportionality and a speedy resolution of disputes, I find I can properly assess and weigh the written evidence and submissions before me, and that an oral hearing is not necessary. Therefore, I decided to hear this dispute through written submissions.

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.

8.      Burley charged Mr. Delmage more than $5,000 for the move. However, by initiating this tribunal dispute, I find Burley has abandoned any amounts over the $5,000 maximum tribunal small claim amount. Mr. Delmage says Burley owes him an estimated $13,325.57 in damages but claims only $5,000. I find he has also abandoned any amounts in excess of the $5,000 limit.

ISSUES

9.      How much, if anything, does Mr. Delmage owe Burley for moving services? (Burley claim)

10.   Did Burley damage Mr. Delmage’s possessions and home, and deliver the possessions late, and if so, what compensation does Burley owe Mr. Delmage? (Delmage counterclaim)

 EVIDENCE AND ANALYSIS

11.   In a civil proceeding like this one, the applicant and respondent each must prove their respective claims on a balance of probabilities. I have read all the submitted evidence, but I refer only to the evidence I find relevant to provide context for my decision.

How much, if anything, does Mr. Delmage owe Burley for moving services? (Burley claim)

12.   The parties agree Burley moved Mr. Delmage’s possessions between cities, although they were delivered a few days later than Mr. Delmage expected. While I consider this delay and damage to Mr. Delmage’s possessions and home later, the question here is whether it is possible to determine what Mr. Delmage owes for the move.

13.   Burley relies on a contract signed by Mr. Delmage on August 27, 2019, the date the possessions were picked up. The contract contained no expected delivery date. Mr. Delmage signed it again on September 2, 2019 when the possessions were delivered, after Burley added an 8,766-pound shipping weight and $5,982.79 price to the document.

14.   The contract (which Burley calls a waybill) said Mr. Delmage would be charged $0.60 per pound for the move, although the number 65 appears below that price without explanation. Burley initially charged Mr. Delmage $0.65 per pound. However, in its arguments, Burley agreed to reassess the amount owing at $0.60 per pound based on the shipment weight.

15.   Mr. Delmage disputes the accuracy of the weight written on the contract by Burley, and says he never received proof of the shipping weight, and Burley refused his request to weigh the moving truck in his presence. Burley says it charged an amount based on the actual weight of Mr. Delmage’s possessions, as scaled at weigh stations. Burley says it received copies of the weigh scale tickets which clearly show the true weight of the shipment, and which were “available on request.”

16.   Parties are told during the tribunal’s facilitation stage to provide all relevant evidence. I find the weigh scale receipts are clearly relevant, as the parties agreed the price of the move was based on the possessions’ weight. Burley says these receipts prove the actual weight of the possessions, but failed to submit them, with no explanation.

17.   When an applicant’s case appears on its face to have merit, an adverse inference may be drawn against a party where, without sufficient explanation, it fails to produce evidence expected to support its arguments (see Port Coquitlam Building Supplies Ltd. v. 494743 B.C. Ltd., 2018 BCSC 2146). I find that is the situation here. I draw an adverse inference against Burley for failing to provide the weigh scale evidence. Further, I find Burley has not proven the actual weight of the possessions, from which a move price can be calculated.

18.   I considered whether the weight of the moved possessions, or the value of Burley’s moving services, could be inferred from other evidence. There is no other evidence estimating the possessions’ weight or predicting the cost of the move. Similarly, there is no shipping manifest or list of possessions from which a weight could be estimated.

19.   Section 37.39(2)(c), article 18, of the Motor Vehicle Act Regulations (MVAR) applies to household moves such as this one. Article 18 says a carrier must attach certified public weigh scale ticket to its copy of the bill of lading. Burley did not provide a weigh scale ticket. Article 18 says if no appropriate weigh scales are located within 16 kilometres of the departure point, the shipment weight must be based on 112 kilograms per cubic metre of properly loaded van space. However, the total volume of the possessions is unknown, as are the number and types of possessions moved (apart from the damaged possessions identified by Mr. Delmage). The submitted photos do not appear to show most of the moved possessions, and are mostly close-up photos that fail to reliably show the size of the possessions photographed. Further, there is no evidence of the size of Burley’s moving truck. So, I cannot determine the volume of properly loaded van space occupied by the possessions, or calculate a weight and price based on that volume.

20.   There is also no evidence of measured or estimated weights, volumes, or prices charged in other, similar, moves. As a result, I find I cannot reasonably calculate an estimated weight of the possessions, even on a judgment basis.

21.   I also considered whether I could determine a reasonable payment for the move on a quantum meruit basis, which is a legal term meaning payment for work done based on its value. However, there is no evidence estimating fuel and trucking costs, labour costs, or other costs associated with this move or a similar one. Also, there is no minimum charge or minimum weight in the contract. On the evidence before me, I find there is no reasonable way to estimate the value of the moving services provided by Burley.

22.   Having weighed all the evidence, I find that although Burley has proven it moved Mr. Delmage’s possessions, it has failed to prove the price or value of its moving services, and it is not entitled to any payment for those services, whether under the parties’ contract or based on an assessment of value for the work done. As a result, I dismiss Burley’s claim.

Did Burley damage Mr. Delmage’s possessions and home, and deliver the possessions late, and if so, what compensation does Burley owe Mr. Delmage? (Delmage counterclaim)

23.   Mr. Delmage says Burley’s employees mistreated his possessions during the move, causing damage to the possessions and the floors in his new home. A witness statement dated March 9, 2020 said the employees damaged “our floor, walls and belongings,” without further detail of the alleged damage. I find Mr. Delmage’s damage estimates were based on the full replacement cost of all items, including the floors, regardless of the severity of the alleged damage or the residual value of the items.

24.   Mr. Delmage says the Burley movers verbally assured him his possessions and home would be fully repaired or replaced if damaged. It does not matter in this case, because I find below that the contract did not limit Burley’s liability for damage to Mr. Delmage’s goods or home.

25.   Burley agrees its employees damaged Mr. Delmage’s fan and 2 stereo speakers. However, they say moving damage is limited to the $0.60 per pound of “Carrier Liability Coverage” (CLC) provided under the moving contract. There is no evidence of the weight of the fan and speakers, and Burley did not confirm or deny Mr. Delmage’s other damage allegations. Rather, Burley says it is not responsible for other damage identified more than 14 days after the move.

26.   I find the contract provides $0.60 per pound of CLC when claims for that coverage are submitted in writing within 14 days of move completion. However, the contract does not say Mr. Delmage’s remedies for moving damage are limited to the CLC coverage, or that all claims must be made within 14 days. While the contract says, “we do not & can not sell insurance”, I find this does not exempt Burley from liability for damage. Further, although a portion of the contract says that Mr. Delmage’s signature confirms the shipment was received in good condition except for the speaker and fan damage, I accept Mr. Delmage’s unrefuted submission that Burley’s employees required him to provide his signature before the goods were unloaded and inspected. So, I find Mr. Delmage did not accept the condition of his possessions at the time of delivery.

27.   In addition, section 37.39(2) of the MVAR says a carrier who operates a business vehicle and accepts household goods for shipment must issue a bill of lading meeting several requirements. I find the contract, or “waybill,” Burley issued does not meet the requirements of an inventory of goods comprising the shipment and a statement indicating that uniform conditions of carriage apply. Further, the contract does not contain or incorporate by reference a required list of “specified conditions of carriage.”

28.   The MVAR provides exceptions to liability for damage to shipped household goods. However, the BC Provincial Court in Lawlor v. Galaxy Mobile Storage Inc. et al, 2018 BCPC 330, considered MVAR section 37.39(2) in a household move like this one. The court said the moving contract in that case did not comply with the Motor Vehicle Act and MVAR, so the carrier could not rely on the MVAR’s liability exceptions. I find that is the situation here, and that Burley cannot rely on the MVAR’s liability exceptions because it has not followed the MVAR’s strict bill of lading requirements.

29.   I note that Burley offered to pay Mr. Delmage some compensation for damage on October 15, 2019. I find this means Burley received notice of damage within 60 days of delivery as required under article 12 of MVAR section 37.39(2)(c).

30.   Overall, I find Mr. Delmage’s claim of damage to his possessions by Burley’s employees is not limited by the contract or the MVAR. As a result, I find that Burley is responsible for the cost of repairing or replacing any damage caused by its employees to Mr. Delmage’s possessions or home.

31.   The difficulty with Mr. Delmage’s counterclaim, however, is proving the damage claimed and shown in photos taken after the move was caused by Burley’s employees, and was not pre-existing damage. Mr. Delmage did not say that any of his possessions or his new home were brand new, which leads me to expect some pre-existing wear and tear. However, there are no pre-move photographs or other evidence of the condition of Mr. Delmage’s possessions and new home prior to the move.

32.   I note Mr. Delmage alleged Burley’s employees were smoking marijuana and drinking alcohol while loading the possessions. However, Mr. Delmage did not explain why he permitted those same employees to load and drive a truck containing his household possessions. In any event, I do not find this argument persuasive, as the employees’ alleged consumption of marijuana and alcohol is not proof that they caused any damage, so I make no finding on whether that consumption occurred.

33.   Having reviewed the evidence, I find Mr. Delmage has not met his burden of proving Burley’s employees caused the claimed damage, apart from the fan and speakers. This includes dented and scratched flooring, paint rubbed on a railing, a scratched toy car, scuffed dumbbell weights, a dented picture frame, 2 dented lampshades, a broken zipper tab on a suitcase, a chipped bookshelf, a scratched crib with a cracked drawer, a scratched leather chair, a scratched dresser, dented kitchen chairs, and a dented kitchen table leg. Mr. Delmage did not say whether the stereo receiver purchase shown on receipts was a replacement for a damaged item, so I find he has not proven a receiver was damaged in the move.

34.   Mr. Delmage also submitted photos of a television, which he says Burley’s employees packed into a box before moving. The television appears to be functional, except for thin, bright lines along the right edge of the display which Mr. Delmage says are damage caused by the movers. Given that there is no evidence of the pre-move condition of the 3-year-old television, and no indication of how long after the move the damage was discovered, on balance I find Mr. Delmage has not proven the television was damaged in the move.

35.   Overall, I find Burley only owes Mr. Delmage for the admittedly damaged fan and 2 speakers. An email from an electronics store employee confirmed the price of a replacement fan and similar-model speakers, as shown on a receipt. The fan cost $449.99 plus a $0.95 environmental fee and sale taxes, while the 2 speakers each cost $599.99 plus a $1.10 environmental fee and sales taxes. This equals $1,851.49.

36.   In addition, Mr. Delmage says Burley agreed to deliver his possessions on August 31, 2019, and then on September 1, 2019, before delivering them on September 2, 2019. I find the contract did not contain an estimated delivery date, and that any expected delivery dates communicated by the movers were non-binding estimates. Further, I do not consider 6 days to be an unreasonable delivery time for an interprovincial move such as this. In addition, Mr. Delmage did not provide a hotel room receipt, proof of lost income, or other evidence showing he incurred costs because of the delivery date of his possessions. So, I find Burley does not owe anything for late delivery.

TRIBUNAL FEES, EXPENSES, AND INTEREST

37.   The Court Order Interest Act applies to the tribunal. Mr. Delmage is entitled to pre-judgement interest on $1,851.49 in damages, calculated from the December 13, 2019 replacement item purchase date until the date of this decision. This equals $14.54.

38.   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. Burley was unsuccessful in its claims, so I order no reimbursement for its tribunal fees. Mr. Delmage was partially successful in his counterclaim, so I find he is entitled to reimbursement for half his tribunal fees, or $87.50. No dispute-related expenses were claimed.

ORDERS

39.   Within 30 days of the date of this order, I order Burley to pay Mr. Delmage a total of $1,953.53, broken down as follows:

a.    $1,851.49 in damages,

b.    $14.54 in pre-judgment interest under the Court Order Interest Act, and

c.    $87.50 in tribunal fees.

40.   Mr. Delmage is entitled to post-judgment interest, as applicable.

41.   I dismiss Mr. Delmage’s remaining counterclaims, and Burley’s claims.

42.   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.

 

43.   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.