Date Issued: July 13, 2020

File: SC-2020-002065

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Lapointe v. Braiden, 2020 BCCRT 778

Between:

LANA LAPOINTE

Applicant

And:

TRUDY BRAIDEN

Respondent

INTRODUCTION

1.      This dispute is about a personal loan between friends. The applicant, Lana Lapointe, says that she allowed the respondent, Trudy Braiden, to put $2,781.51 in charges on her credit card in September 2018. Ms. Lapointe says that after a year Ms. Braiden only repaid $720.97. She says they entered an agreement in September 2019 that Ms. Braiden would pay $100 bi-weekly payments and that she allowed one deferral in December 2019. However, Ms. Braiden did not make two agreed upon payments, one in January 2020 and the other in February 2020. Therefore, she is demanding the $1,905.83 outstanding amount owing plus credit card interest.

2.      Ms. Braiden agrees that she owes Ms. Lapointe $1,905. Ms. Braiden says that she was making payments, but Ms. Lapointe decided to start this Dispute.

3.      The parties each represents themselves.

JURISDICTION AND PROCEDURE

4.      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.

5.      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.  

6.      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.

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.      The issue in this dispute is whether Ms. Braiden must pay Ms. Lapointe $1,905.83 in outstanding debt plus 19.8% credit card interest.

EVIDENCE AND ANALYSIS

9.      In a civil dispute such as this, the applicant, Ms. Lapointe, must prove her case on a balance of probabilities.

10.   I will not refer to all of the evidence or deal with each point raised in the parties’ submissions. I will refer only to the evidence and submissions that are relevant to my determination, or to the extent necessary to give context to these reasons.

11.   Most of the facts are undisputed. Ms. Braiden agrees that she owes Ms. Lapointe the $1,905.83. Ms. Braiden’s argument is that she was paying off the debt and Ms. Lapointe should not have started this claim against her.

12.    Ms. Lapointe says that Ms. Braiden took too long to pay off the debt so in August 2019 the parties set up a payment plan which stated that Ms. Braiden would pay $100 bi-weekly starting in mid-September when she received her paychecks. The emails between the parties show that this was the agreed upon arrangement. Ms. Braiden does not dispute this.

13.   I also note that Ms. Braiden knew that Ms. Lapointe was charged credit card interest on the amount owing and in an October 17, 2018 email she agreed to pay the credit card interest until the amount owing was paid off. Again, Ms. Braiden does not dispute this.

14.   The emails indicate that initially the payment schedule worked well. Ms. Braiden made the required $100 payments on time on September 19, October 3, and October 17, 2019. Then, on October 29, 2019, Ms. Braiden sent Ms. Lapointe a text saying that her payment was going to be late but that she would get it to her by November 1 or 2, 2019. Ms. Lapointe agreed to this but told Ms. Braiden to be sure she paid it by then. Ms. Braiden made this payment on November 2, 2019.

15.   On November 12, 2019, Ms. Braiden again emailed Ms. Lapointe that the payment that was due November 14^, 2019 would not be paid until November 15 or 16, 2019. She said that she would “double up” things from January on. In an email, Ms. Lapointe says she was confused by what Ms. Braiden was suggesting and said that she wanted to keep with the schedule. Ms. Braiden clarified in an email on November 13, 2019 that she would make her normal payments in November and December 2019 but would double her payment from January onward.

16.   Ms. Braiden did not pay the $100 in the middle of the November but sent $200 on November 28, 2019. On December 6, 2019, Ms. Braiden asked Ms. Lapointe to send back $25 to $30 because she needed it. Ms. Lapointe refused saying she did not have any extra money. Ms. Braiden made her next scheduled payment on December 12, 2019 but then requested a deferral of the December 24, 2019 payment. Ms. Lapointe indicated that she would allow this one deferral.

17.   Things then worsened between the parties. Ms. Braiden did make a $100 payment on January 9, 2020 but, according to the chart provided by Ms. Lapointe, did not make up the December 24, 2019 payment and also did not pay from January 23, 2020 onward. Ms. Braiden did not dispute the accuracy of Ms. Lapointe’s record of payments.

18.   The emails show that Ms. Braiden stated on February 6, 2020 that she acknowledged that she owed for the December 24, 2019 installment and also promised that she would pay the January 23, 2020 installment on February 8, 2020. The chart shows that Ms. Braiden made no payments after January 9, 2020.

19.   As noted, Ms. Braiden says that she was making payments so there was no reason for Ms. Lapointe to begin this claim. Ms. Lapointe says that Ms. Braiden delayed in paying back the debt and that even after they came to an agreed payment plan, Ms. Braiden still did not follow it. She says that she is entitled to seek an enforceable repayment arrangement because Ms. Braiden continually does not pay the debt.

20.   Based on the evidence, I find that Ms. Braiden did agree to pay the debt as well as the 19.8% interest. Ms. Lapointe has provided the credit card statements that show the debt is not paid off and that she is still carrying the debt and paying the interest. The parties agreed to a repayment schedule to begin in September 2019. Ms. Braiden did not honour that agreement and was continuously either late or missed payments completely. I find that Ms. Lapointe is entitled to demand that Ms. Braiden pay the amount outstanding plus the 19.8% interest rate she agreed to pay.

21.   Ms. Braiden included the interest she was charged by the credit card company until the date of the March 9, 2020 Dispute Notice. Ms. Lapointe is entitled to prejudgment interest at the agreed to 19.8% rate on the $1,905.83 from that date until the date of this decision which totals $131.30.   

22.   Under section 49 of the CRTA and the CRT’s rules, the CRT 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. Ms. Lapointe was successful, so she is entitled to reimbursement of her $125 tribunal fees. Neither party made a claim for expenses.

ORDERS

23.   I find that within 30 days Ms. Braiden must pay Ms. Lapointe a total of $2,162.13 broken down as follows:

a.    $1,905.83 in debt for the outstanding credit card debt,

b.    $131.30 in pre-judgment interest based on the 19.8% credit card interest rate, and

c.    $125.00 in tribunal fees.

24. Ms. Lapointe is also entitled to post-judgement interest at the 19.8% contractual interest rate.

25. 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 a Ministerial Order 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.

26.  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.