Date Issued: October 28, 2020

File: SC-2020-004906

Type: Small Claims

Civil Resolution Tribunal

Indexed as: N S D Disposal Limited v. J. F. Vision Autoglass Ltd., 2020 BCCRT 1210

BETWEEN:

N S D DISPOSAL LIMITED

APPLICANT

AND:

J. F. VISION AUTOGLASS LTD.

RESPONDENT

INTRODUCTION

1.      This dispute is about payment for waste disposal services. The applicant, N S D Disposal Limited (NSD), says the respondent, J. F. Vision Autoglass Ltd. (Vision), wrongfully terminated its contract with NSD, and failed to pay for its last month’s waste disposal services. NSD abandons any amount over the Civil Resolution Tribunal (CRT) $5,000 small claims monetary limit.

2.      Vision says it properly terminated its valid contract with NSD, in accordance with its terms. Vision says the contract NSD now relies on is invalid and never came into effect. Vision denies owing NSD any money.

3.      NSD is represented by an employee, SM. Vision is represented by its owner, Jeff Freeman.

JURISDICTION AND PROCEDURE

4.      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.

5.      The CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note that in Yas v. Pope, 2018 BCSC 282, at paragraphs 32 to 38, the British Columbia Supreme Court recognized the CRT’s process and found that oral hearings are not necessarily required where credibility is an issue.

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.      In resolving this dispute the CRT may make one or more of the following orders, where permitted by section 118 of the CRTA:

a.    Order a party to do or stop doing something;

b.    Order a party to pay money;

c.    Order any other terms or conditions the CRT considers appropriate.

ISSUE

8.      The issue in this dispute is whether Vision properly terminated its waste disposal contract with NSD, and if not, what is the appropriate remedy.

EVIDENCE AND ANALYSIS

9.      In a civil claim such as this, the applicant NSD bears 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.

10.   In order to address whether Vision properly terminated NSD’s services, it first matters which contract was in effect at the time of termination. It is undisputed NSD and Vision first entered into a contract for waste disposal services effective November 21, 2016. The contract noted it was for a “new customer”, for a term of 36 months, and was signed by a manager of Vision, KH.

11.   It is also undisputed that on April 3, 2017, KH, on Vision’s behalf, signed another contract with NSD. That contract noted it was for a “change service/rate” and was again for a term of 36 months. It is undisputed this contract was a result of Vision’s request to increase NSD’s pick up frequency.

12.   KH signed another agreement on January 14, 2019, the effect of which is disputed. The January 14, 2019 contract states it was for a term of 60 months. On NSD’s copy, the contract noted it was for a “renewal”. However, on Vision’s copy, no such notation was made, which differs from Vision’s prior contracts with NSD. Vision says this contract is not enforceable as it was not signed by someone with signing authority, as KH had stepped down from his management position with Vision the previous year. Vision says there was never any intention to enter into a new contract with NSD and that NSD’s employee, JC, improperly forced KH to sign the contract.

13.   First, NSD says the fact the “renewal” notation is not on Vision’s copy of the contract is not evidence of anything as it is related to NSD’s “office sorting/data entry”. However, I do note that on all NSD’s prior agreements with Vision, Vision’s copy contained the relevant notation about the “reason” for the contract change.

14.   In any event, for the following reasons, I find the January 14, 2019 contract is not binding. Vision says that when JC approached Vision’s employee, KH, about signing the January 14, 2019 contract, KH specifically advised JC that he no longer had signing authority and asked him to return the next day to speak to Mr. Freeman about signing a new contract. Vision says that JC told KH it was not a “new contract” but rather was only for a “file update”. Vision says JC was extremely pushy and would not leave the premises and, as a result, KH signed the January 14, 2019 document. Another Vision employee, VL, was present during the conversation between KH and JC. Both KH and VL provided statements in evidence which are consistent with Vision’s submissions about how KH’s signature was obtained on January 14, 2019.

15.   NSD says that because KH had signed previous agreements, it had “no reason to believe” that anyone other than KH would be in charge of negotiating a new waste agreement. Notably, NSD does not address Vision’s submission that JC was explicitly told KH no longer had authority to sign contracts on Vision’s behalf and did not provide a statement from JC about his interaction with KH that led to the January 14, 2019 signing. NSD did not provide any explanation why it did not provide a witness statement from JC. Courts have said that an adverse inference can be drawn against a party where, without sufficient explanation, they fail to produce evidence or call a witness expected to provide supporting evidence. Here, I find it appropriate to draw an adverse inference against NSD for its failure to provide evidence or submissions about KH’s stated lack of authority to sign the January 14, 2019 agreement. So, I find Vision’s version of events is accurate and that KH explicitly notified NSD he was not authorized to sign a contract on Vision’s behalf, and that JC said the document was just a “file update”.

16.   Therefore, I find the January 14, 2019 agreement signed by KH is not enforceable as against Vision, because KH did not have ostensible (apparent) or actual authority to bind Vision. Additionally, I find it was unconscionable for NSD to ask the Vision employee to sign a “file update” when that was not the truth. So, even if KH did have signing authority, I would have found the contract void anyway, due to NSD’s misrepresentation. I also find the fact the “renewal” notation was not noted on Vision’s contract copy further evidence JC may not have been entirely truthful with Vision when obtaining KH’s signature.

17.   It is undisputed that once Mr. Freeman learned about the January 14, 2019 contract, he followed up with NSD several times about its invalidity and his disapproval of NSD’s tactics.

18.   Subsequently, Vision’s location moved and Mr. Freeman asked NSD to update its service location. On September 1, 2019, Mr. Freeman signed an agreement which noted it was a “change service/rate” and reflected Vision’s new operating address. Mr. Freeman also points out that he specifically told NSD he did not agree to an extension of his previous service agreement. As such, in the “Special Instructions” section of the contract, it noted “service agreement continues from previous agreement”. Vision says that, therefore, the April 3, 2017 contract effective date and term length were still in effect.

19.   In contrast, NSD says the September 1, 2019 contract formed a new contract, valid for 60 months, expiring August 30, 2024. Mr. Freeman says that he had an explicit conversation with JC on September 1, 2019 that he was not entering into a new agreement with NSD, and that is why the “special instructions” were noted on the September 1, 2019 agreement. Similarly to the January 14, 2019 incident, there is no evidence from JC about the circumstances around the September 1, 2019 negotiation or contract. I do not accept NSD’s interpretation of the contract. I accept Mr. Freeman’s evidence that he advised NSD he was not signing a new contract, and the agreement signed that day was only to reflect Vision’s new operating location and was not intended to be a fresh contract for an additional 60 month term. Therefore, I find the September 1, 2019 agreement did not change the terms of the April 3, 2017 contract, which were still in effect.

20.   So, the question is whether Vision properly terminated the April 3, 2017 agreement. According to the contract’s terms and conditions, the contract could only be terminated by written notice sent by registered mail between 90 and 180 days before the contract’s expiry date (known as a cancellation window). For the April 3, 2017 contract, the cancellation window was between October 6, 2019 and January 4, 2020.

21.   It is undisputed Vision sent NSD a formal cancellation notice by registered mail, received on December 23, 2019. I find this cancellation notice was sent within the cancellation window and according to the contract’s termination requirements. Therefore, the parties’ contract ended as of April 2, 2020. It is undisputed NSD’s bin was removed from Vision’s property in June 2020.

22.   Having found that Vision properly terminated the parties’ contract, it follows Vision did not breach the parties’ contract. I find NSD is not entitled to liquidated damages for breach of contract. I also find Vision does not owe NSD for unpaid waste disposal services, as the services billed were for April 1 to 30, 2020, after the parties’ contract ended. It is undisputed Mr. Freeman wrote to NSD on April 13, 2020 confirming he had cancelled NSD’s services and asking NSD to remove its bins from Vision’s premises. Therefore, I find NSD has not proven it provided waste disposal services for the time period claimed after the end of the parties’ contract. I dismiss NSD’s claims.

23.   Under section 49 of the CRTA, and CRT rules, a successful party is generally entitled to the recovery of their tribunal fees and dispute-related expenses. I see no reason to deviate from that general rule. As NSD was not successful, I find that it is not entitled to reimbursement of its paid tribunal fees. Neither party claimed dispute-related expenses.

ORDER

24.   I order NSD’s claims, and this dispute, dismissed.