Date Issued: September 28, 2020

File: SC-2020-003925

Type: Small Claims

Civil Resolution Tribunal

Indexed as: LaFrance v. Dream Big Weddings and Events, 2020 BCCRT 1088

Between:

JESSE LAFRANCE and MARISSA FIKUS

Applicants

And:

DREAM BIG WEDDINGS AND EVENTS and LINDEN GARDENS LTD.

RespondentS

INTRODUCTION

1.      This dispute is about the return of a deposit for wedding planning services and a venue. The applicants, Jesse LaFrance and Marissa Fikus, say they hired the respondents, Dream Big Weddings and Events (Dream Big) and Linden Gardens Ltd. (Linden Gardens), to provide planning services and a venue for their wedding scheduled for August 1, 2020.

2.      As a result of the COVID-19 pandemic, Mr. LaFrance and Ms. Fikus say Dream Big and Linden Gardens were unable to fulfil their contractual obligations. They seek a refund of a $5,965 deposit they paid to Dream Big and Linden Gardens. They have abandoned their claim for the amount in excess of $5,000, the Civil Resolution Tribunal’s (CRT) small claims monetary limit.

3.      Dream Big and Linden Gardens say the deposit was non-refundable and Mr. LaFrance and Ms. Fikus declined their offer to apply the deposit to a postponed event date or to reduce the price for a smaller wedding that complied with provincial restrictions arising from the COVID-19 pandemic.

4.      Mr. LaFrance and Ms. Fikus are self-represented. Dream Big is represented by its owner, Stephanie Sielmann. Linden Gardens is represented by its director, KH.

JURISDICTION AND PROCEDURE

5.      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.

6.      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.

7.      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.

8.      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

9.      The issue in this dispute is whether Mr. LaFrance and Ms. Fikus are entitled to a return of their deposit.

EVIDENCE AND ANALYSIS

10.   In a civil claim such as this, Mr. LaFrance and Ms. Fikus bear the burden of proof on a balance of probabilities. While I have read all of the parties’ evidence and submissions, I have only addressed the evidence and arguments to the extent necessary to explain my decision. Witnesses and others are identified by their initials in this decision, which are known to the parties.

11.   It is undisputed that on August 8, 2019, Ms. Fikus entered into a contract for Dream Big and Linden Gardens to provide wedding planning services and a venue for her and Mr. LaFrance’s August 1, 2020 wedding and reception. The relevant terms of the contract were:

a.    The package’s total cost was $11,886, with a 50% deposit ($5,943) due on signing and the remaining 50% due within 5 days of receipt of Dream Big’s invoices.

b.    Under paragraph 6, if the contract was cancelled due to an act of God, such as a fire, flood, earthquake or other natural calamity, compensation would only be required for the services rendered up to the time of cancellation. This is what is known in law as a “force majeure” clause.

c.    Under paragraph 8, there would be no refund if Ms. Fikus cancelled the contract in writing for any reason, or if the event was not cancelled. I infer this referred to a refund of the deposit.

d.    Dream Big and Linden Gardens reserved the right to terminate the contract at any time if action taken by Ms. Fikus was unreasonable or detrimental to the planning or execution of the event.

12.   It is undisputed that Mr. LaFrance and Ms. Fikus paid a deposit. While Dream Big says they paid $5,943, Mr. LaFrance and Ms. Fikus say they paid $5,965. Neither party explained the discrepancy, or provided evidence of the actual amount paid. Since Mr. LaFrance and Ms. Fikus have abandoned their claim over $5,000, I find the discrepancy is irrelevant and nothing turns on it.

13.   The parties agree that although the contract did not mention it, the wedding was for up to 135 attendees. Mr. LaFrance and Ms. Fikus say that on March 16, 2020 the provincial government announced that gatherings of more than 50 people were barred due to the COVID-19 pandemic. They say as a result it was illegal for Linden Gardens to host their 135 person wedding.

14.   Dream Big and Linden Gardens say they were prepared to proceed with the wedding and offered Mr. LaFrance and Ms. Fikus the option of either reducing the guest list to a maximum of 50 people at a reduced cost, or postponing the wedding to a date in 2021 at no extra cost, when hopefully the restrictions would be lifted.

15.   On March 23, 2020, Mr. LaFrance and Ms. Fikus advised Dream Big and Linden Gardens they were not interested in changing the wedding date, although they were prepared to reduce the number of guests. They also asked Dream Big and Linden Gardens about the act of God clause and whether they could transfer the deposit to another couple.

16.   On April 6, Dream Big’s employee, LA, emailed Ms. Fikus that she would lose her deposit to Linden Gardens if she chose to cancel the wedding, even if another couple booked the spot for 2021. Ms. Fikus responded that she and Mr. LaFrance wished to continue with the wedding on August 1, 2020. She also stated that COVID-19 would trigger the act of God clause if Linden Gardens could not host the wedding on August 1 for 135 guests.

17.   On May 5, Ms. Fikus emailed Dream Big’s employee, LA, that as a “plan B” she had tentatively booked a cabin for a small ceremony with the immediate family for the September long weekend. On May 8, Ms. Fikus emailed LA and asked how Dream Big would be involved with the wedding if it was done off-site due to the limit of 50 guest, which I infer meant not at Linden Gardens. She also asked LA to explain what would happen with her deposit with Linden Gardens. LA responded that $2,100 of the deposit was for Dream Big and the remaining was for Linden Gardens. She also stated that Linden Gardens’ deposit was non-refundable.

18.   On May 13, Mr. LaFrance emailed LA requesting a refund of at least a portion of the deposit. Ms. Sielmann responded that the deposit was non-refundable. She also stated that Dream Big’s share of the deposit would be used towards the time LA had spent on planning Ms. Fikus’s wedding which, at 30.5 hours, was more than the 20 hours included in their wedding package.

19.   On May 14, Mr. LaFrance emailed Linden Gardens to request a deposit refund. He did not state whether or not he received a reply. Later in the day, Mr. LaFrance emailed Ms. Siemann that he and Ms. Fikus could not accept her “offer for services moving forward”. He did not explain what this term meant.

20.   The next day Ms. Sielmann emailed Ms. Fikus that Mr. LaFrance had terminated the contract as per his email and asked Ms. Fikus to confirm the cancelation since she signed the contract. She also stated that under paragraph 8 of the contract, the deposit was non-refundable if it was cancelled.

21.   Ms. Fikus responded that she was not canceling the event or the contract until she heard back from Linden Gardens about the deposit. She also stated that Linden Gardens would not be able to host her event due to the province’s restrictions. She did not explain how the restrictions affected Linden Gardens’ ability to host the wedding. Ms. Fikus also stated that she and Mr. LaFrance did not require Dream Big’s services for an event outside of Linden Gardens. Ms. Fikus did not explain if she was referring to a wedding of a maximum of 50 people or 135 people.

22.   The wedding did not take place on August 1, 2020, although neither party stated when the wedding was cancelled. Mr. LaFrance and Ms. Fikus say the reason it was cancelled was Linden Gardens did not respond to their enquiries about how it would host the wedding under the province’s restrictions. They also say Linden Gardens did not answer their questions about whether it was “commercially viable” to have social distancing and still have access to washrooms, which were limited, or how traffic flow would be managed on-site, or about sanitization stations. They say they did not feel their safety and their guests’ safety would be looked after.

23.   Linden Gardens says that it had all mandated COVID-19 safety precautions in place and was willing and able to host Mr. LaFrance and Ms. Fikus’s wedding under the province’s guidelines and rules. It also stated that it had hosted 3 other wedding and 2 celebrations in compliance with the province’s restrictions.

24.   The burden is on Mr. LaFrance and Ms. Fikus to show that Linden Gardens was not able to host the wedding under the province’s restrictions. I find that there is no evidence that Mr. LaFrance and Ms. Fikus asked Linden Gardens about how it intended to comply with the province’s restrictions or its social distancing protocols. Mr. LaFrance did not attempt to contact Linden Gardens until May 14, and then only to enquire about a deposit refund. Also, Ms. Fikus’s May 15, 2020 email showed that she and Mr. LaFrance did not intend to hold the wedding at Linden Gardens because in their opinion, it was not able to host the event under the province’s restrictions. She did not explain the basis for her opinion.

Was the contract frustrated?

25.   Mr. LaFrance and Ms. Fikus say the contract was frustrated and seek a refund of their deposit under paragraph 6 of the contract. The court in Interfor v MacKenzie Sawmill Ltd., 2020 BCSC 416 stated at paragraph 43 that a contract is frustrated by an event not reasonably contemplated by the parties on entering into the contract that renders performance impossible or impracticable. The court also stated that a contract cannot be frustrated by an event that is the subject of a “force majeure” clause because the clause demonstrates that the event lay within the parties’ contemplation.

26.   A force majeure clause, like the act of God clause in paragraph 6 of the parties’ contract, refers to the effect of circumstances that are beyond the contracting parties’ control on the parties’ contractual obligations. I find that since the contract contained an act of God clause which addressed unforeseen circumstances, it was not frustrated.

Act of God clause

27.    Mr. LaFrance and Ms. Fikus say that the COVID-19 pandemic was an act of God under paragraph 6 of the contract. They also say the province’s restrictions on gatherings of more than 50 people made it illegal for Linden Gardens to host their 135 person wedding.

28.   In order for paragraph 6 to apply, Mr. LaFrance and Ms. Fikus must show that the contract was cancelled due to an act of God. While I find that the COVID-19 pandemic itself would be considered an act of God, I find it was not the reason the wedding was cancelled. All of the parties were willing to reduce the number of attendees. Also, as mentioned above, Mr. LaFrance and Ms. Fikus did not meet their burden of showing Linden Gardens could not comply with the province’s restrictions. And so I find the wedding could have gone forward despite the province’s restrictions due to the COVID-19 pandemic.

Are Mr. LaFrance and Ms. Fikus entitled to a deposit refund?

29.   Mr. LaFrance and Ms. Fikus deny they cancelled the wedding. They say they were willing and able to attend on August 1, 2020 but did not do so because Linden Gardens did not respond to their enquiries about its COVID-19 protocols.

30.   As mentioned above, there is no evidence that Mr. LaFrance and Ms. Fikus enquired about Linden Gardens’ COVID-19 protocols. I find Mr. LaFrance and Ms. Fikus cancelled the wedding and so are not entitled to a deposit refund under paragraph 8 of the contract. I dismiss their claim.

31.   Under section 49 of the CRTA and CRT rules, the CRT will generally 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. Since Mr. LaFrance and Ms. Fikus were unsuccessful, I dismiss their claim for CRT fees. They did not claim dispute-related expenses.

ORDER

32.   I dismiss Mr. LaFrance and Ms. Fikus’s claims and this dispute.