Date Issued: September 2, 2020

File: SC-2020-001296 and

SC-2020-003127

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Acme Glass Ltd. v. Mohan, 2020 BCCRT 977

Between:

ACME GLASS LTD.

Applicant

And:

NARINDER KUMAR MOHAN

Respondent

And:

GURDIP HAYER

Respondent BY THIRD PARTY CLAIM

INTRODUCTION

1.      This is a dispute about payment for glass installation in a new house (see SC-2020-003127).

2.      In dispute SC-2020-001296 the applicant, Acme Glass Ltd. (Acme), says it installed shower doors, mirrors and closet organizers in the respondent, Narinder Kumar Mohan’s, new house. Acme says Mr. Mohan has failed to pay for the glass work and claims $1,197.

3.      Mr. Mohan denies Acme installed any glass in the new house. Mr. Mohan says that, if Acme did install any glass in the new house, Mr. Mohan is not responsible for paying Acme. In dispute SC-2020-003127 Mr. Mohan says the third party respondent, Gurdip Hayer, is responsible for paying all contractors and sub-trades under their construction agreement. Mr. Mohan asks that Mr. Hayer be ordered to pay anything Acme is awarded.

4.      Mr. Hayer did not file a Dispute Response in dispute SC-2020-003127, and so he is in default, as discussed below.

5.      Acme is represented by MS, a principal or employee. Mr. Mohan represents himself.

JURISDICTION AND PROCEDURE

6.      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.

7.      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.

8.      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.

9.      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 tribunal considers appropriate.

10.   I note that Mr. Mohan’s third party claim against Mr. Hayer was inadvertently opened as a separate dispute, rather than as part of Acme’s dispute. Nothing turns on this administrative error, as CRT staff ensured all participating parties had the opportunity to review evidence in both dispute files and to make submissions accordingly.

ISSUE

11.   The issue in this dispute is whether Mr. Mohan, or Mr. Hayer are responsible for paying Acme for glass installation.

EVIDENCE AND ANALYSIS

12.   In a civil claim such as this one, Acme must prove its claim on a balance of probabilities. Mr. Mohan bears the same burden in his third party claim against Mr. Hayer. Although Mr. Mohan made submissions to the CRT, he did not submit any evidence despite having the opportunity to do so. I have reviewed all submissions and evidence provided, but I will only refer to that which explains and gives context to my decision.

13.   Acme says it installed a 6mm pivot glass door, 2 5mm pivot glass shower doors and 1 closet organizer in Mr. Mohan’s new house. Mr. Mohan denies Acme installed anything at the house and says his shower doors have a sticker from another glass company. Acme acknowledges that another glass company installed other glass at the house, including 10 mm shower doors. Acme says the glass it installed would have an Acme sticker on it. Neither party provided any photographs to support their arguments.

14.   Acme provided in evidence a series of text messages between its salesperson, BC, and Mr. Mohan. From those text messages, I find Mr. Mohan asked BC to go to the new house on January 26, 2018 and to bring photos and samples. I further find Mr. Mohan looked at BC’s design on February 3, 2018.

15.   Acme says it emailed a quote to Mr. Mohan but did not provide a copy of the quote in evidence. Acme says Mr. Mohan agreed to the quote in a February 2, 2018 text, which says “Please go ahead to go closet and basement and laneway” (reproduced as written). I find the text does not confirm anything, as it does not reference glass or shower doors. Further, without a copy of Acme’s quote, or knowing when Acme sent the quote to Mr. Mohan, I cannot connect that February 2, 2018 text to any potential agreement between Mr. Mohan and Acme.

16.   Based on the texts submitted by Acme, I find Mr. Mohan referred BC to Mr. Hayer for payment in April 2018.

17.   Given my findings that Mr. Mohan asked BC to design glass for the new house, and that he referred Acme to Mr. Hayer for payment a few months later, I find it more likely than not that Acme installed glass work in Mr. Mohan’s new house. However, Acme has failed to prove what, exactly, it installed in the house, how much money was to be paid, and who was to pay Acme. Acme did not provide any evidence of an agreement with Mr. Mohan, such as an estimate or an invoice. I cannot infer an agreement between Mr. Mohan and Acme based on the information in the text messages provided in evidence. On balance, I find Acme has failed to prove that Mr. Mohan agreed to pay for Acme’s glass installation.

18.   Acme argues that Mr. Mohan received the benefit of the glass installation and so should have to pay for the value of it. Acme’s submissions on what, exactly, it installed in the new house is inconsistent. Acme has not provided any evidence showing what, exactly, it installed in the house. Further, Acme has not provided any evidence showing what the cost of the glass work was, such as an invoice or a quote. Without that information, I cannot determine the value of the glass work completed by Acme. I find Acme has failed to prove its damages. I dismiss Acme’s claim against Mr. Mohan for $1,197.

Third Party Claim

19.   As noted above, Mr. Hayer did not file a Dispute Response. Based on the proof of notice form submitted by Mr. Mohan, I am satisfied Mr. Hayer received the Dispute Notice but did not respond by the deadline set out in the CRT’s rules. So, I find Mr. Hayer is in default.

20.   Liability is assumed in default decisions. As Mr. Hayer has not participated in this dispute, I assume Mr. Hayer is liable for sub-trade costs as Mr. Mohan claims. However, as this is not a debt claim, Mr. Mohan must prove his damages of $1,197.

21.   As noted above, I find Mr. Mohan is not responsible for paying Acme for glass installation. So I find there is no sub-trade cost Mr. Hayer must pay for under the construction contract in this dispute. As Mr. Mohan has not proven his damages, I dismiss his third party claim against Mr. Hayer.

22.   Under section 49 of the CRTA and tribunal rules, the CRT will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. Both Acme and Mr. Mohan were unsuccessful in these disputes so I dismiss their claims for CRT fees.

ORDER

23.   I dismiss Acme’s claim against Mr. Mohan. I also dismiss Mr. Mohan’s claim against Mr. Hayer.