Date Issued: November 25, 2020

File: SC-2020-005638

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Revolution Resource Recovery Inc. v. New Image Contracting Ltd.,
2020 BCCRT 1331

Between:

REVOLUTION RESOURCE RECOVERY INC.

Applicant

And:

NEW IMAGE CONTRACTING LTD.

Respondent

And:

revolution RESOURCE recovery inc.

respondent by counterclaim

REASONS FOR DECISION
Tribunal Member:	Eric Regehr

INTRODUCTION

1.      The respondent and applicant by counterclaim, New Image Contracting Ltd. (New Image) hired the applicant and respondent by counterclaim, Revolution Resource Recovery Inc. (Revolution), for waste disposal services.

2.      Revolution says that New Image’s president, LC, signed its standard form written agreement (written agreement). Revolution says that New Image breached the written agreement by cancelling its services outside of a specified cancellation window. It seeks $738.53 in liquidated damages. Revolution also says that New Image damaged its garbage bin and claims $1,204, the cost of a replacement bin.

3.      New Image says that it negotiated different terms than the ones in the written agreement. New Image says that the initials on one page of the written agreement were forged. It also denies damaging a bin.

4.      In its counterclaim, New Image says that Revolution made unauthorized charges to New Image’s credit card, forced New Image to hire a contractor to move the garbage bin, and damaged New Image’s building. New Image counterclaims a total of $1,863.38.

5.      Revolution is represented by EA, who I infer is an employee. New Image is represented by an employee, TM.

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). 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.

7.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In some respects, both parties of this dispute call into question the credibility, or truthfulness, of the other. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me. I note the decision Yas v. Pope, 2018 BCSC 282, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I decided to hear this dispute through written submissions.

8.      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.

9.      Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to pay money or to do or stop doing something. The tribunal’s order may include any terms or conditions the CRT considers appropriate.

ISSUES

10.   The issues in this dispute are:

a.    Did New Image agree to the terms in the written agreement?

b.    Does New Image owe Revolution liquidated damages? If so, how much?

c.    Did New Image damage Revolution’s bin?

d.    Did Revolution overcharge New Image?

e.    Does Revolution owe New Image for the cost to move the bin?

f.     Did Revolution damage New Image’s property?

EVIDENCE AND ANALYSIS

11.   In a civil claim such as this, each party must prove their claims on a balance of probabilities. While I have read all the parties’ evidence and submissions, I only refer to what is necessary to explain my decision.

12.   It is undisputed that Revolution provided waste disposal services to New Image from January 2017 to June 2020. Revolution provided a garbage bin as part of its services.

13.   Revolution says that it provided these services under the terms of a signed written agreement with New Image. The written agreement is a single 2-sided page. The front contains the customer’s information, the services Revolution is to provide, and some terms of the agreement. The front also contains a place for the customer to sign.

14.   Above the signature on the front page, in boldface, is the statement (capitals in original): “THE GENERAL CONDITIONS SET OUT ON THE BACK OF THIS PAGE FORM PART OF THIS AGREEMENT. By signing this Agreement, Customer acknowledges having read, understood and agreed to the General Conditions”.

15.   The back of the agreement contains more detailed terms and a place for the customer to initial.

16.   Revolution says that LC signed the front of the written agreement and initialed the back. A Revolution employee, DM, signed the written agreement on behalf of Revolution on the front. Revolution says that New Image is bound by the written agreement’s terms.

17.   Revolution relies on the following terms on the front page of the written agreement:

•      The initial term of the agreement is 12 months, which automatically renews for successive 12-month terms.

•      If New Image wishes to cancel the contract, it must do so between 90 and 120 days before the expiration of the term (the cancellation window).

18.   Revolution also relies on the following terms on the back of the written agreement:

•      New Image is responsible for the bin while it is on New Image’s property.

•      New Image must not move the bin.

•      If New Image cancels the agreement outside of the cancellation window, Revolution is entitled to liquidated damages of the greater amount of (i) New Image’s previous 15 months’ billings or (ii) the anticipated billings for the remainder of the term.

19.   New Image says that LC told DM that New Image would not accept Revolution’s standard terms. New Image says that LC disagreed with some of the terms on the front page and all of the terms on the back page. New Image says that DM agreed that the contract would continue month to month after the initial 12-month term expired and could be cancelled on 30 days’ notice. New Image also says that DM agreed that none of the terms on the back page of the written agreement would apply to New Image. There is no written evidence of these terms and New Image does not say that it created an edited version of the written agreement.

20.   New Image says that LC did not initial the back page and that the initials that appear on the back page are a forgery. While New Image’s submissions are not entirely clear, I infer that it says that LC left the back page blank. In any event, New Image argues that the forgery “voids” the entire agreement. New Image does not explicitly admit or deny that LC signed the front page of the written agreement. I address the authenticity of the signature and the initials below.

21.   In March 2020, a New Image employee informed Revolution by telephone that New Image wished to cancel the service.

22.   On May 21, 2020, Revolution sent New Image a letter stating that New Image could only cancel between 120 and 90 days before the renewal date, which was January 12, 2021. New Image insisted it wished to cancel Revolution’s services.

23.   On June 29, 2020, Revolution picked up the bin. The same day, Revolution sent a letter to New Image claiming that New Image had damaged the bin. Revolution demanded $1,204 to replace the bin in addition to liquidated damages.

Did New Image agree to the terms in the written agreement?

24.   As mentioned above, New Image says that the written agreement in evidence contains a “fraudulent element”, namely “a false signature/initial located on page 2” of the written agreement.

25.   In support of this allegation, New Image provided a report from David Babb as an expert in forensic handwriting analysis. The report includes a description of Mr. Babb’s training and experience. The BC Supreme Court has accepted and relied on Mr. Babb’s evidence as an expert on the authenticity of a signature: see Ali v. Ali, 2018 BCSC 22. I find that Mr. Babb is qualified to give expert evidence about whether a signature is authentic under CRT rule 8.3(3).

26.   Revolution argues that I should not admit Mr. Babb’s report because New Image failed to provide Mr. Babb’s invoice and a copy of any correspondence between Mr. Babb and New Image, as required by CRT rule 8.3(4). CRT rule 8.3(4) also says that the CRT may direct otherwise, which I find gives me discretion to admit an expert report even if there is imperfect compliance with CRT rule 8.3(4).

27.   I find that one purpose of CRT rule 8.3(4) is to make sure that a party did not inappropriately coach an expert. Mr. Babb’s report includes a certification that he understands that his duty is to provide “evidence that is fair, objective and non-partisan”. Also, Revolution has not identified any prejudice arising from New Image’s failure to provide its correspondence with Mr. Babb, and based on my conclusions below, I find that there is none.

28.   As for Mr. Babb’s invoice, I find that this could impact New Image’s ability to claim reimbursement for the cost of Mr. Babb’s report as a dispute-related expense. However, I find that it has no bearing on whether I should admit the report.

29.   The purposes of the CRT’s rules include proportionality and flexibility. With those purposes in mind, I find that Mr. Babb’s report is admissible as an expert report.

30.   Revolution argues that I should disregard the report because it is unclear. In order to understand this argument, it is necessary to set out Mr. Babb’s report in detail.

31.   Under the “Facts and Assumptions” portion of the report, Mr. Babb says that he examined a “questioned signature”, which he stated was labeled “Q1” on an appended copy of the written agreement. He also examined 5 known examples of LC’s signature, which were labelled as “K1” to “K5” on 5 appended documents that LC signed. Under the “Examination, Comparison, Method and Analysis” portion of the report, Mr. Babb says that he “compared the “Q” signature to the “K” signatures”. Under the “Opinion” portion of the report, Mr. Babb says that “the “Q” signature is highly probable Not authored by the author of the known signatures of [LC]” (reproduced as written).

32.   As noted above, the report appends a copy of the written agreement. Beside LC’s signature on the front page of the written agreement is the label “Q2”. There is no label beside the initials on the back page. There is no “Q1” label anywhere on the written agreement in Mr. Babb’s report. Revolution says that it is therefore unclear whether Mr. Babb’s opinion about a forgery is about LC’s signature on the front page or the initials on the back page.

33.   New Image says that Mr. Babb’s opinion is that the initials are a forgery. New Image says that if I find the report is unclear, I should confirm with Mr. Babb that he was assessing the initials’ authenticity. I have the authority to under CRT rule 8.3(9) to seek clarity from an expert on my own initiative. However, I decided not to do so because I find that there are only 2 plausible ways to interpret the report and that both interpretations lead to the same result.

34.   The first possibility is that Mr. Babb assessed the authenticity of the signature and not the initials. In this circumstance, Mr. Babb intended to label the signature “Q1” but mistakenly typed “Q2”.

35.   I find that this is likely what happened for 3 reasons. First, because the signature is on the first page and the initials are on the second page, it stands to reason that the signature would be labelled “Q1” and the initials would be labelled “Q2”. Second, the 5 known signatures that Mr. Babb used as comparators are all LC’s full signature. There are no examples of LC’s initials. I find it unlikely that Mr. Babb would provide an opinion about the authenticity of the initials without relying on any known examples of LC’s initials. Finally, Mr. Babb refers to “the “Q” signature” twice in his report, which suggests that he did not intend to label multiple signatures.

36.   Therefore, I find that Mr. Babb did not provide an opinion about the authenticity of the initials. Rather, I find that he assessed the signature as a probable forgery. New Image does not allege that LC’s signature is forged. While New Image also does not explicitly admit or deny that LC signed the written agreement, but I find that it is implicit in New Image’s submissions that LC did so. I find that if New Image disputed the authenticity of LC’s signature on the front page, it would have done so clearly given the lengths it went to dispute the authenticity of the initials. Given New Image’s implicit admission that LC signed the written agreement, I reject Mr. Babb’s opinion that the signature is a forgery. I find that LC signed the front page of the written agreement.

37.   In the event I am wrong, I will also address New Image’s submission that Mr. Babb assessed the initials as a forgery. If New Image is correct, Mr. Babb neglected to put any label next to the initials but intended to label them “Q1”. If this is the case, for the reasons that follow, I place no weight on Mr. Babb’s opinion.

38.   The initials are quite different from LC’s signature. However, I find that it is common knowledge that a person’s signature and initials can be very different. Mr. Babb’s report does not contain any analysis to suggest that he was able to assess the authenticity of the initials based on the known examples of LC’s full signature. In the absence of such an explanation, I am unable to put any weight on Mr. Babb’s opinion about whether the author of the 5 known signatures also authored the initials. I find that for such an opinion to have any weight, Mr. Babb would need to compare known examples of LC’s initials with the disputed initials.

39.   Therefore, whether Mr. Babb’s report refers to the signature or the initials, I find that New Image did not prove that the initials were forged.

40.   Turning to New Image’s evidence about the negotiation of the parties’ agreement, I find that New Image’s version of events is not credible.

41.   New Image says that LC strongly disagreed with the terms on the back page and insisted that those terms would not apply to New Image. I find it unlikely that LC would record this significant change to the written agreement by simply declining to initial the back page, especially considering that he signed the front page with its statement that New Image agreed to the terms on the back page. I find it much more likely that if the parties negotiated a new agreement, it would be recorded in writing.

42.   New Image does not explain why it would refuse to agree to all of the conditions on the back page. While it is true that some of the terms are onerous, other terms were unlikely to be controversial. For example, there is a term that New Image, a construction company, would not put biomedical waste in the bin.

43.   New Image also does not explain why LC signed the front page of the written agreement, which included the cancellation window clause and the clause creating automatic 12-month renewals, when he had negotiated different terms. LC also did not cross out the line above his signature explicitly agreeing to the terms on the back page.

44.   New Image relies on the fact that Revolution failed to provide a statement from DM. New Image says that Revolution provided no explanation about why this was so. I agree that DM’s evidence would likely have been helpful. That said, I also note that LC did not give direct evidence in this dispute, which also would likely have been helpful. I therefore consider the lack of evidence from the witnesses who signed the written agreement to be a neutral factor in my analysis.

45.   For these reasons, I find that LC signed the written agreement, which clearly incorporated the terms on the back page, and initialed the back page. I find that the parties did not negotiate any terms that are not included in the written agreement. I find that New Image is bound by the written agreement’s terms.

Does New Image owe Revolution liquidated damages? If so, how much?

46.   Revolution’s claim for liquidated damages is based on 2 specific terms in the written agreement. First, that New Image can only cancel the agreement during a particular cancellation window. Second, that if New Image breaches the cancellation window clause, it agrees to pay Revolution liquidated damages.

47.   Based on the renewal date, the cancellation window clause allowed New Image to cancel between mid-September and mid-October. As mentioned above, New Image cancelled the agreement in March 2020. New Image accepted the cancellation and picked up the bin on June 29, 2020. I find that New Image breached the cancellation window clause.

48.   Therefore, I find that Revolution is entitled to liquidated damages as outlined in the written agreement. Revolution claims $738.53, which represents the remaining 6.5 months remaining in the term at a rate of $113.62. Revolution did not provide any objective evidence to support its claim. However, New Image provided a copy of its billing history with Revolution. Based on this evidence, it appears that Revolution could have claimed more than $738.53 under the liquidated damages clause. At the time of cancellation, Revolution was charging more than $113.62 per month and there were 7 billing cycles remaining in the term, not 6.5 months. Therefore, I find that the evidence establishes that Revolution is entitled to at least $738.53 as claimed. I cannot award more than Revolution claims, so I order New Image to pay Revolution $738.53 in liquidated damages.

Did New Image damage Revolution’s bin?

49.   Turning to Revolution’s claim for a damaged bin, Revolution provided no objective evidence to support its claim. Revolution provided no photographs of the bin or other evidence to prove that it was damaged or unusable after Revolution picked it up. Revolution also provided no evidence about the value of the bin.

50.   I find that Revolution has failed to prove this claim, and I dismiss it.

Did Revolution overcharge New Image?

51.   New Image says that its agreement with Revolution provided for a rate of $80 per month, which is the rate on the written agreement. New Image says that it has done a “reconciliation” of its account with Revolution and discovered that it was overbilled $997.13. New Image does not explain how it calculated this amount.

52.   The only evidence New Image provided in support of this claim its billing history since January 2017. The ledger shows that the cost of Revolution’s services went up around November 2017. Between November 2017 and June 2020, the monthly charge ranged from $105 to $198.42.

53.   Revolution does not specifically respond to this part of New Image’s counterclaim. However, I note that the written agreement provides for one-time fee of $59 for additional pickups. It also allows Revolution to unilaterally increase its rates for a variety of reasons. I therefore find that the ledger, by itself, does not prove that Revolution charged unauthorized amounts.

54.   New Image does not explain why it waited until after the termination of services to “realize” that Revolution was overcharging. Revolution charged New Image’s credit card every month. I find that if Revolution had been overcharging New Image from November 2017 to March 2020, it is likely that New Image would have noticed and raised the issue with Revolution.

55.   Therefore, even though Revolution did not explain why the cost of New Image’s services went up over time, I find that New Image failed to prove this claim, and I dismiss it.

Does Revolution owe New Image for the cost to move the bin?

56.   New Image does not fully explain this claim. I assume that when Revolution did not initially pick up the bin when requested, New Image hired another company to move it. New Image provides no objective evidence to prove that it incurred this expense, such as an invoice.

57.   I find that New Image has not proven this claim, and I dismiss it.

Did Revolution damage New Image’s property?

58.   New Image claims that Revolution damaged New Image’s building. There is no objective evidence of any damage, such as photographs. There is no evidence showing why New Image claimed $472.50, such as an invoice.

59.   Again, I find that New Image has failed to prove this claim, and I dismiss it.

60.   The written agreement provides for contractual interest at a rate of 2% per month, but Revolution did not claim it. I cannot award contractual interest if Revolution did not claim it. The Court Order Interest Act (COIA) applies to the CRT, but section 2(b) says that a party is not entitled to court order interest if there is an agreement about interest between the parties, as is the case here. I therefore find that Revolution is not entitled to either contractual interest or court order interest.

61.   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. Revolution was partially successful, so I find it is entitled to reimbursement of half of its $125 in CRT fees, which is $67.50. Revolution did not claim any dispute-related expenses.

62.   New Image was unsuccessful, so I dismiss its claim for CRT fees and dispute-related expenses.

ORDERS

63.   Within 28 days of the date of this order, I order New Image to pay Revolution a total of $803.03, broken down as follows:

a.    $738.53 in liquidated damages, and

b.    $67.50 for half its CRT fees.

64.   I dismiss Revolution’s remaining claims. I dismiss New Image’s counterclaims.

65.   Revolution is entitled to post-judgment interest, as applicable.

66.   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.

67.   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.