Date Issued: November 25, 2020

File: SC-2020-005943

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Anastasio v. Stewart, 2020 BCCRT 1329

Between:

GENNARO ANASTASIO

Applicant

And:

BENJAMIN ANDREW STEWART also known as BEN STEWART

Respondent

REASONS FOR DECISION
Tribunal Member:	Trisha Apland

INTRODUCTION

1.      The applicant, Gennaro Anastasio, says he lent money to his adult son, the respondent, Benjamin Andrew Stewart also known as Ben Stewart. Mr. Anastasio says Mr. Stewart failed to repay the loan and he claims a total of $5,000 in debt.

2.      Mr. Stewart agrees that his father, Mr. Anastasio gave him money but says the money was a gift. Mr. Stewart denies the $5,000 claim.

3.      The parties are each self-represented.

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). Section 2 of the CRTA states that 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 the dispute’s parties that will likely continue after the CRT process has ended.

5.      Some of the evidence in this dispute amounts to a “he said, he said” scenario. The credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. 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.      Section 42 of the CRTA says 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 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.

Preliminary Issues

8.      Mr. Stewart left Canada during the CRT’s case management process. Mr. Anastasio still proceeded with his claim to the hearing stage after Mr. Stewart left the country but ‘questions’ whether the CRT has jurisdiction. I find the fact that Mr. Stewart moved out of the country during the CRT process does not remove the CRT’s jurisdiction over this dispute. The money transfers happened in British Columbia, Mr. Anastasio lives here, and Mr. Stewart was here when the dispute started. I find therefore, that British Columbia remains the proper forum for this dispute. I also find I have jurisdiction to hear this dispute under the CRT’s small claims jurisdiction.

9.      Mr. Stewart relies on the parties’ Facebook messages in response to Mr. Anastasio’s claims. Mr. Stewart submitted PDF versions of the Facebook messages, and video recordings of scrolling through the parties’ entire Facebook message exchange for the relevant time. Mr. Anastasio alleges that Mr. Stewart altered the Facebook messages after the fact. As the party alleging forgery, Mr. Anastasio carries the burden to prove his allegations. After reviewing the PDF and video versions, I cannot determine, on their face, that the messages were altered as Mr. Anastasio asserts. I find an assessment of whether Mr. Stewart altered the Facebook messages is a technical one and requires expert evidence (see Bergen v. Guliker, 2015 BCCA 283). Mr. Anastasio produced no expert opinion, such as from a forensic analyst, to show the messages were altered. Without an expert opinion, I find Mr. Anastasio’s forgery allegations are unproven. I have accepted the Facebook messages as presented into evidence. I have not discussed Mr. Anastasio’s unsupported allegations about evidence tampering any further.

ISSUE

10.   The issue in this dispute is whether the money Mr. Anastasio gave Mr. Stewart were repayable loans, or were gifts.

EVIDENCE AND ANALYSIS

11.   In a civil proceeding like this one, as the applicant Mr. Anastasio must prove his claims on a balance of probabilities. I discuss the impact of the law of gifts on the burden of proof below.

12.   I have read the parties’ submissions, but only comment on the argument and evidence that I find relevant to provide context for my decision. In particular, the parties provided quite extensive submissions attacking each other’s character that I have not summarized as I find it irrelevant to the issues before me.

13.   The parties agree that Mr. Stewart moved to Canada in January 2019 with the intention of potentially settling here. Mr. Anastasio says he loaned Mr. Stewart $6,300 between March 28, 2019 and December 29, 2019 to help him financially while he looked for stable employment.

14.   On July 4, 2020, Mr. Anastasio demanded that Mr. Stewart repay $5,000 over 25 monthly interest-free payments starting July 31, 2020. Mr. Anastasio says he “wrote off” the remaining $1,300 alleged debt balance.

15.   In this dispute, Mr. Anastasio claims repayment for the following money transfers, which I discuss in more detail below:

a.    Mar 28, 2019 - $1,000

b.    Apr 22, 2019 - $1,000

c.    May 9, 2019 - $2,000

d.    Nov 18, 2019 - $1,000

16.   Mr. Anastasio provided a copy of the money transfer receipts and his contemporaneous calendar agenda where he noted each money transfer with a running “loan” total.

17.   Mr. Stewart agrees that he accepted and received the above money transfers from Mr. Anastasio after moving to Canada. However, he says Mr. Anastasio transferred the money as a gift or donation with no obligation to repay. Mr. Stewart says Mr. Anastasio wrongly stated in his agenda that the money was a loan.

Law of Gifts

18.   Under the law of gifts, once Mr. Anastasio has proven he transferred the money to Mr. Stewart as he has done here, the burden shifts to Mr. Stewart as the person receiving the transfer to establish the money was a gift (see Pecore v. Pecore, 2007 SCC 17). At law, once someone has made a true gift to another person, the gift cannot be revoked (Bergen v. Bergen, 2013 BCCA 492).

19.   For there to be a legally effective gift, three things are required: an intention to donate, an acceptance, and a sufficient act of delivery. The context of the parties’ familial relationship is relevant, but not determinative. The evidence needs to show that the intention of the money as a gift was inconsistent with any other intention (see Lundy v. Lundy, 2010 BCSC 1004).

March 2019 - $1,000

20.   On March 28, 2019, Mr. Anastasio sent Mr. Stewart a Facebook message that stated: “I’ll send you a thousand tonight. I hope it helps. Ok, I just sent it. You don’t owe it back.” Mr. Stewart accepted and thanked Mr. Anastasio for the money. On March 29, 2019, Mr. Stewart confirmed he received the money in his PayPal account. There is no further correspondence in evidence about this $1,000 transfer.

21.   However, as noted above Mr. Anastasio’s agenda in evidence refers to the $1,000 March 28, 2019 money transfer as a “loan”. Mr. Anastasio says the agenda is “irrefutable proof” that he had no intention to donate the money. I disagree. I do not know when the agenda entry was made and I find it less reliable than the parties’ Facebook messages that were written at the relevant time. On balance, I prefer the Facebook messages over Mr. Anastasio’s agenda entry.

22.   I also find Mr. Anastasio told Mr. Stewart “you don’t owe it back” because he intended to gift the money when he transferred it to Mr. Stewart. I find Mr. Stewart accepted the money and the gift was ‘perfected’ when the money was transferred into Mr. Stewart’s account the next day. I find Mr. Anastasio was not permitted to unilaterally revoke the gift by later treating the money as a loan.

23.   I find the $1,000 Mr. Anastasio transferred to Mr. Stewart on March 28, 2019 was a gift and not a loan. I dismiss this aspect of Mr. Anastasio’s claim.

April and May 2019 - $3,000

24.   There is no specific correspondence in evidence between the parties discussing the April and May 2019 money transfers. There are also no notations on the money transfer receipts themselves specifying whether the money was a gift or loan.

25.   To support his position the money was gifted, Mr. Stewart relies on Mr. Anastasio’s May 16, 2019 Facebook message to Mr. Stewart quoted below:

As I had advised/mentioned a few months ago, also consider that there is no shame in returning to the UK. And if you want to decide to do that, I will pay for your flight back and you will owe me nothing. Either way, you owe me nothing back except a promise that you will sort yourself out and achieve economic independence. It’s the best I can offer...

26.   Mr. Stewart says that by using the words “Either way, you owe me nothing back” Mr. Anastasio intended all money transferred to Mr. Stewart before and after May 16, 2019 to be gifts.

27.   Mr. Anastasio says his statement was not in reference to all the transferred money. He says he paid for Mr. Stewart’s flight to Canada in 2018 and was offering to pay for his return flight to the UK if Mr. Stewart left in 2019. Mr. Anastasio says Mr. Stewart did not accept his gift of a flight and remained in Canada until about September 2020.

28.   On a reasonable interpretation of the May 16, 2019 message, I find Mr. Anastasio could have been offering only to gift Mr. Stewart a flight ticket to the UK. There is no suggestion that the April or May 2019 transfers paid for flight tickets.

29.   I find the fact that Mr. Anastasio gifted Mr. Stewart money in the past is not determinative of the nature of the subsequent money transfers. Again, to prove the money was a gift, the intention must be inconsistent with any other intention and I find it is not. I find an alternative and reasonable interpretation for the money transfers is as loans for temporary support as Mr. Anastasio asserts. I find Mr. Stewart has not proven that the April 22, 2019 ($1,000) and May 9, 2019 ($2,000) transfers were gifts. I find that Mr. Stewart must repay Mr. Anastasio the $3,000.

November 2019 - $1,000

30.   The parties’ November 18, 2019 Facebook messages show that Mr. Stewart asked Mr. Anastasio to pay for an unspecified fee. Mr. Stewart said he anticipated a potential fee reduction or fee waiver and promised to repay any money not covered by it. Mr. Anastasio agreed and transferred $1,000 that same day. Neither party clarified what the fees were for.

31.   Mr. Stewart does not say the fee reduction or waiver was denied and he submitted no records about it. Mr. Stewart simply argues that all the money Mr. Anastasio sent him was a gift without making any reference to the fee. I find that Mr. Stewart has not proven that the intention of the November 18, 2019, $1,000 transfer was as an absolute gift. I find it was conditional and repayable if he received the fee reduction or waiver.

32.   The courts have said that an adverse inference can be drawn against a party where, without sufficient explanation, they fail to produce key documentary evidence relevant to their position. An adverse inference should only be drawn where the applicant’s case appears to have merit on its face, which I find is the case here, (see Lumber Ltd. v. British Columbia, 1999 Can LII 6979 and Port Coquitlam Building Supplies Ltd. v. 494743 B.C. Ltd., 2018 BCSC 2146). Without explanation, Mr. Stewart did not provide any evidence about the fee reduction or waiver despite being the holder of this information and its relevance to whether he had to repay the $1,000. I draw an adverse inference on Mr. Stewart’s failure to provide such evidence. I find Mr. Stewart was not denied the fee reduction or waiver. I find Mr. Stewart must repay Mr. Anastasio the $1,000.

Conclusion

33.   I find Mr. Stewart owes Mr. Anastasio a total of $4,000 for 3 loans repayable on demand.

34.   Mr. Anastasio says the loans were “interest free” and he did not make any claim for interest here. So, I have not awarded any pre-judgment interest on the debt.

35.   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. I find Mr. Anastasio was primarily successful in this dispute and is entitled to $175 for his paid CRT fees. Neither party claimed dispute-related expenses.

ORDERS

36.   Within 30 days of the date of this order, I order Mr. Stewart to pay Mr. Anastasio a total of $4,175, broken down as follows:

a.    $4,000 in debt, and

b.    $175 in CRT fees.

37.   Mr. Anastasio is entitled to post-judgment interests as applicable under the Court Order Interest Act.

38.   Under section 48 of the CRTA, the CRT 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 CRT’s final decision. The Province of British Columbia has enacted a provision under the COVID-19 Related Measures Act which says that statutory decision makers, like the CRT, may waive, extend or suspend mandatory time periods. This provision is expected to be in effect until 90 days after the state of emergency declared on March 18, 2020 ends, but the Province may shorten or extend the 90-day timeline at any time. A party should contact the CRT as soon as possible if they want to ask the CRT to consider waiving, suspending or extending the mandatory time to file a Notice of Objection to a small claims dispute.

39.   Under section 58.1 of the CRTA, a validated copy of the CRT’s order can be enforced through the Provincial Court of British Columbia. A CRT 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 CRT order has the same force and effect as an order of the Provincial Court of British Columbia.