Date Issued: June 30, 2020

File: SC-2019-009689

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Xia Fan v. Li dba Colour Perfection, 2020 BCCRT 722

Between:

XIA FAN and 0955824 BC LTD. DBA VAN PRO DISPOSAL

Applicants

And:

ANTHONY LI (Doing Business As COLOUR PERFECTION)

Respondent

REASONS FOR DECISION
Tribunal Member:	Lynn Scrivener

INTRODUCTION

1.      This small claims dispute is about a waste disposal contract. The applicants, Xia Fan and 0955824 BC Ltd., DBA Van Pro Disposal (Van Pro), say that the respondent, Anthony Li, doing business as Colour Perfection, has refused to pay some of the invoices issued under a service agreement. The applicants ask for an order that Mr. Li pay them $2,513.73 in fees and liquidated damages, plus contractual interest. Mr. Li says that he cancelled the agreement and does not owe the applicants any money.

2.      The applicants are represented by a Van Pro employee. Mr. Li is self-represented.

JURISDICTION AND PROCEDURE

3.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). The CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT 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 CRT 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 CRT 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 CRT 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 CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

ISSUES

7.      The issues in this dispute are:

a.    whether Mr. Li is responsible for the claimed service fees of $1,085.24,

b.    whether Mr. Li is responsible for $1,428.49 in liquidated damages, a bin removal fee and taxes, and

c.    whether the applicants are entitled to contractual interest.

EVIDENCE AND ANALYSIS

8.      In a civil dispute like this, an applicant bears the burden of proof on a balance of probabilities. The parties provided submissions and evidence in support of their respective positions. While I have considered all of this information, I will refer to only what is necessary to provide context to my decision.

9.      On August 12, 2013, Mr. Li signed a contract with another waste disposal company. This service agreement had a 1-year term that automatically renewed for successive 60-month terms. Van Pro bought assets and contracts from the other company in late 2017 and took over the waste removal services for Mr. Li on February 1, 2018. Van Pro provided statements from its driver and dispatcher who confirm that waste was picked up from Mr. Li every 2 weeks.

10.   An account statement shows that Mr. Li made payments to Van Pro up until January 15, 2019, but he did not make any payments after that. The applicants say that Mr. Li has refused to make further payments, and claim $1,085.24 for service fees and $1,428.49 for liquidated damages, a bin removal fee and taxes. The applicants also claim contractual interest at an annual rate of 24%.

11.   Mr. Li says that Van Pro did not always pick up his garbage and he asked to cancel the agreement more than once due to these service problems. He also says that he moved the business to a new location in January of 2019, but Van Pro left the bin at his old location until April of 2020. Mr. Li provided evidence from a property manager, who wrote to Van Pro in March of 2020 to ask that the bin be removed. Mr. Li suggests that Van Pro’s claim is a “scam” as they charged him money for service they did not provide.

12.   I find that the evidence before me does not establish that Van Pro breached the service agreement. While Mr. Li may have been unhappy with the service he received from Van Pro, the parties’ service agreement was binding until it was terminated. The terms and conditions on the second page of the service agreement say that it must be terminated in writing, by registered mail, and only during specific time frames. Mr. Li’s evidence is that he talked to Van Pro about cancelling the agreement by telephone and during a meeting with a Van Pro employee. He did not state that he provided the required written notice. I find that Mr. Li did not comply with the termination requirements set out in the service agreement. Further, the fact that Mr. Li moved the business did not terminate the service agreement, as it specifically provided for the transfer of service to a new location.

13.   As the service agreement was not terminated, Mr. Li remained responsible for the associated service charges. According to a statement provided by Van Pro, it issued invoices numbered 15907, 16770, 17376, 20258, 20653 and 21154 between February to July of 2019, for $164.50 per month plus service fees and fuel surcharges contemplated by the service agreement. I find that Mr. Li must pay the $1,085.24 in outstanding service charges.

14.   The liquidated damages and other charges are listed in invoice 22723 dated August 1, 2019. Liquidated damages are a contractual estimate of the damages a party will suffer in the event of a breach of a contract, and the service agreement allows for the payment of liquidated damages if the agreement is not terminated properly. The service agreement states that the liquidated damages will be equal to the expected billings for the remainder of the agreement’s term or for 9 months of billings. The claim here is for 9 months of billings. I acknowledge that this clause and the amount of the liquidated damages is onerous on Mr. Li. However, in Tristar Cap & Garment Ltd. v. Super Save Disposal Inc., 2014 BCSC 690, the British Columbia Supreme Court held that a similar contract was enforceable, and this decision is binding on me. Therefore, I find that Mr. Li is required to pay 9 months of billings (or $1,195.47) as liquidated damages.

15.   The additional charges are for a bin removal fee of $150 and other fees and taxes that were specifically contemplated by the service agreement. I find that Mr. Li is also responsible for these charges which, taken together with the liquidated damages, equal the $1,428.49 listed on invoice 22723.

16.   Although Van Pro and Xia Fan are both listed as applicants, I find that the amount owing is payable only to Van Pro. Xia Fan appears to be a principal of Van Pro, and there is no indication that there was any agreement directly between Xia Fan and Mr. Li. Therefore, Mr. Li’s obligation is to Van Pro alone. I dismiss Xia Fan’s claims.

17.   The service agreement provides for the payment of contractual interest at an annual rate of 24%. I find that Van Pro is entitled to contractual interest on the $2,513.73 in service fees, liquidated damages and other amounts as described above, starting on August 1, 2019. Calculated to the date of this decision, this amounts to $552.06.

18.   Under section 49 of the CRTA and CRT rules, the CRT generally will order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. I find that Van Pro is entitled to reimbursement of $125 in CRT fees. There was no claim for dispute-related expenses.

ORDERS

19.   Within 30 days of the date of this order, I order Mr. Li to pay Van Pro a total of $3,190.79, broken down as follows:

a.    $2,513.73 in service fees and liquidated damages,

b.    $552.06 in contractual interest, and

c.    $125 in CRT fees.

20.   Van Pro is entitled to post-judgment interest, as applicable.

21.   Xia Fan’s claims are dismissed.

22.   Under section 48 of the CRTA, the CRT 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 CRT’s final decision. The Minister of Public Safety and Solicitor General has issued a Ministerial Order under the Emergency Program Act, which says that tribunals may waive, extend or suspend a mandatory time period. The CRT can only waive, suspend or extend mandatory time periods during the declaration of a state of emergency. After the state of emergency ends, the CRT will not have this ability. A party should contact the CRT as soon as possible if they want to ask the CRT to consider waiving, suspending or extending the mandatory time to file a Notice of Objection to a small claims dispute.

23.   Under section 58.1 of the CRTA, a validated copy of the CRT’s order can be enforced through the Provincial Court of British Columbia. A CRT 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 CRT order has the same force and effect as an order of the Provincial Court of British Columbia.