Date Issued: October 9, 2020

File: SC-2020-003805

Type: Small Claims

Civil Resolution Tribunal

Indexed as: 2 Burley Men Moving Ltd. v. Hartle, 2020 BCCRT 1144

Between:

2 BURLEY MEN MOVING LTD.

Applicant

And:

WINSTON HARTLE

Respondent

And:

2 BURLEY MEN MOVING LTD.

RESPONDENT BY COUNTERCLAIM

 

REASONS FOR DECISION
Tribunal Member:	Trisha Apland

INTRODUCTION

1.      This is a dispute over payment for moving services.

2.      The applicant and respondent by counterclaim, 2 Burley Men Moving Ltd. (2BM), moved the belongings of the respondent and applicant by counterclaim, Winston Hartle, from Vancouver to Parksville. 2BM says Mr. Hartle owed it a total of $2,324.94 for the move, as reflected on its initial invoice.

3.      After 2BM applied for dispute resolution with the Civil Resolution Tribunal (CRT), Mr. Hartle paid 2BM $2,167.44. Mr. Hartle says the parties agreed to settle the invoice for this amount. 2BM disagrees and claims $157.50, which is the outstanding invoice balance.

4.      Mr. Hartle alleges that 2BM deliberately underestimated the job to outbid the competition, “intentionally obscured” the quote, inflated the invoice, and bullied him to pay. Mr. Hartle counterclaims that 2BM should reimburse him $517.06, plus $483 for his own time in dealing with this dispute.

5.      Mr. Hartle is self-represented. 2BM is represented by its employee, CA.

JURISDICTION AND PROCEDURE

6.      These are the CRT’s formal written reasons. 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, or a combination of these. Though I found that some aspects of the parties’ submissions called each other’s credibility into question, I find I am properly able to assess and weigh the documentary evidence and submissions before me without an oral hearing. In Yas v. Pope, 2018 BCSC 282, the court recognized that oral hearings are not always necessary when credibility is in issue. Further, bearing in mind the CRT’s mandate of proportional and speedy dispute resolution, I decided I can fairly hear this dispute through written submissions.

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 CRT considers appropriate.

ISSUES

10.   The issues in this dispute are:

a.    To what extent, if any, does either party owe the other for the move?

b.    To what extent, if any, does 2BM owe Mr. Hartle for his own time in dealing with this dispute?

EVIDENCE AND ANALYSIS

11.   In a civil proceeding like this one, 2BM must prove its claims on a balance of probabilities. Mr. Hartle has the same burden on the counterclaim.

12.   I have read all the parties’ submissions but refer only to the argument and evidence I find relevant to provide context for my decision.

The Estimate, Move and Invoice

13.   In April 2020, Mr. Hartle asked 3 moving companies for estimates to move his bachelor suite belongings from Vancouver to Parksville.

14.   On April 16, 2020, 2BM emailed Mr. Hartle the following estimate:

Estimate:

$100 per hour for 2 men & 1 truck

Approximate estimated total is $1,500 to $1,600 plus tax

Includes:

Travel Time

Move Time

Ferry Fees

Ferry ICBC Tax

Fuel Fees

Confirming every move is different, your move may take less time which means you would pay less, however, it may take more time which means you would pay more. It depends on how long you actually use the men and the truck for + travel time, ferry fees, ferry taxes, fuel fees.

15.   Take A Load Off Moving Ltd. provided a written estimate of $2,148.50 for the same move. It estimated $1,450 for 14.5 hours for the move and travel time ($100 per hour), plus tax, fees and extras. Mr. Hartle says he also received a phone estimate from “VanCity Moving” for $2,200. Mr. Hartle says these other 2 estimates were over his budget, so he chose 2BM.

16.   Mr. Hartle says that 2BM’s worker “N” contacted him the night before the move and insisted on scheduling the move on an earlier ferry. I understand this was a 2.5 hour or more difference in time. Mr. Hartle says that N suggested that he and the other worker “go home and have lunch” in Nanaimo and that they would “stop the clock” and not charge for the extra 2.5 hours. Mr. Hartle says he felt he had no option but to agree because the move was to happen the next day. Mr. Hartle says they rescheduled and took the Nanaimo break. 2BM provided no contrary statement from its workers. I accept Mr. Hartle’s evidence about the schedule and break.

17.   On May 1, 2020 2BM moved Mr. Hartle’s belongings from Vancouver to Parksville. There is no dispute over the quality of the move. The dispute is over the amount charged for it.

18.   Immediately after the move, 2BM’s workers presented Mr. Hartle with the “waybill” (invoice). The invoice shows that 2BM charged Mr. Hartle a total of $2,324.94 for the move. It shows 16.5 hours for move and travel time at $100 per hour, plus extra for fuel, fees, and tax. I find that 2BM underestimated the job by about $700.

19.   The nature of an estimate is that it is imprecise. However, it is not clear on the evidence that the parties had a meeting of the minds about what was included in the estimated price. I find I do not need to address this issue. This is because I find they later came to a binding agreement to settle the invoice, as discussed below.

The Payment Dispute and Invoice Settlement

20.   The parties’ emails show that Mr. Hartle initially refused to pay the invoice because he believed he was overcharged. On May 4, 2020, Mr. Hartle told CA he was willing to pay for “15 hours, which is the correct number of hours worked, plus fuel, ferry, travel, ICBC and taxes". Mr. Hartle asked 2BM to correct the invoiced hours because it only credited 1.5 hours for a 2.5 hour break in Nanaimo.

21.   Mr. Hartle had initially provided 2BM his credit card number but had put it on hold. He refused to release payment until CA revised the invoice.

22.   On May 5, 2020, CA told Mr. Hartle that she could not revise the invoice because it was a “legal document”. CA stated: “You have advised in your recent email you will be paying $2,167.44. Please release the hold on the credit card so that payment can be processed”. I find CA calculated the total price based on Mr. Hartle’s agreement to pay for 15 hours.

23.   Mr. Hartle responded that he was not comfortable releasing payment to 2BM until the invoice was corrected to $2,167.44. CA replied that same day stating simply: “Is my recent email not sufficient?”. Mr. Hartle said he preferred to have the invoice revised. CA responded, “it may not be ideal but you do need to pay the bill”. Mr. Hartle then agreed and sent 2BM a cheque for $2,167.44. After receiving Mr. Hartle’s cheque, CA stated that it was only partial payment. She demanded payment for the rest of the invoice, which is $157.40.

24.   To determine if the parties agreed to settle for $2,167.44, I must consider the parties' objective intent at the time the agreement was made (see Sattva Capital Corp. v Creston Moly Corp. 2014 SCC 53). I find CA’s statement “Is my recent email not sufficient” must be read objectively within the context of the parties’ full email exchange. I find it was an invitation by CA to pay the revised price of $2,167.44 in satisfaction of the account. I find Mr. Hartle accepted the price in reliance on CA’s email when he paid 2BM $2,167.44 by cheque. I find CA was acting as 2BM’s agent and the parties settled the invoice for $2,167.44

25.   I also find $2,167.44 is consistent with the actual number of hours for the move and travel, plus tax and extras. I find Mr. Hartle was not responsible to pay for the workers’ personal time in Nanaimo. I find the excess over 15 hours was personal time and unrelated to the move.

26.   I dismiss 2BM’s claim for $157.40.

The Counterclaims

27.   I turn now to Mr. Hartle’s counterclaims.

28.   On the one hand, Mr. Hartle says the parties settled the invoice for $2,167.44. On the other hand, he claims a $517.06 refund. This is the difference between what Mr. Hartle paid and the high end of 2BM’s April 16, 2020 estimate after adjusting for tax. As mentioned above, Mr. Hartle alleges that 2BM deliberately obscured the estimate and underestimated the job and then bullied him to pay.

29.   An agreement is generally enforceable so long as there is no duress, unconscionability or some other legal reason not to enforce it. I infer Mr. Hartle seeks to set aside the parties’ agreement to settle the invoice on the basis of duress or unconscionability.

30.   To establish duress, Mr. Hartle must prove that 2BM put him in a position where he had no realistic alternative but to accept the agreement (see Byrd et al v. Harris, 2019 BCCRT 448, which is persuasive though not binding on me). To set aside an agreement for unconscionability, Mr. Hartle must prove that he was in a lesser position due to ignorance, need or distress. He must also prove the bargain was substantially unfair (see Loychuk v. Cougar Mountain Adventures Ltd., 2012 BCCA 122 at paragraphs 29-31). I find Mr. Hartle has not met these tests, as I discuss next.

31.   I find that 2BM provided an inaccurate estimate, lower than what the job would cost. However, I do not accept Mr. Hartle’s assertion that this was deliberate. I also find the tone of the parties’ emails do not show that 2BM engaged in bullying tactics to reach their agreement. Since, 2BM performed the move as agreed, I find it was entitled to demand payment when Mr. Hartle refused to pay. I find no evidence of duress or unconscionability here that would require me to set aside the parties’ agreement to settle the invoice.

32.   Where there is a settlement agreement, the bargain, assessed objectively, must be fair, just and reasonable and also, not so divergent from community standards of commercial morality that it should be rescinded (McIssac v. McIssac 2010 BCSC 691). I find Mr. Hartle agreed to pay $2,167.44 because he believed this was a fair price for the job done. I find this price is consistent with the work performed and the value of the other two estimates. I find the parties’ bargain was fair and met community standards.

33.   I find that Mr. Hartle has not proved on balance that he is entitled to a refund. I dismiss Mr. Hartle’s $517.06 refund claim.

34.   Next, Mr. Hartle seeks compensation for his own time in responding to 2BM’s claim. He says his rate as a freelance contactor is $42 per hour and he lost 12.5 hours of time. I note this works out to more than the $483 in the counterclaim.

35.   Under CRT rule 9.5(5) a party is not generally entitled to compensation for their own “time spent” dealing with a dispute. I find this was a simple contractual dispute over an invoice and no extraordinary circumstances apply. Also, Mr. Hartle did not prove his hourly rate and time spent with supporting records. I see no reason in the circumstances to deviate from the CRT general practice under rule 9.5(5). I dismiss Mr. Hartle’s counterclaim for his own time in dealing with this dispute.

36.   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. As neither party was successful in their claims, I find each must bear the cost of their own tribunal fees and dispute-related expenses.

ORDER

37.   I dismiss 2BM’s claims, Mr. Hartle’s counterclaims, and this dispute.