Date Issued: December 17, 2020

File: SC-2019-004238

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Super-Save Enterprises Ltd. v. Wrzesien, 2020 BCCRT 1424

Between:

SUPER-SAVE ENTERPRISES LTD.

Applicant

And:

JOHN WRZESIEN and DIANE WRZESIEN

Respondents

And:

SUPER-SAVE ENTERPRISES LTD.

Respondent BY COUNTERCLAIM

INTRODUCTION

1.      This dispute is about liquidated damages for an alleged breach of a propane supply agreement.

2.      The applicant, Super-Save Enterprises Ltd. (Super-Save) and the respondents, John Wrzesien and Diane Wrzesien, entered into a 5-year agreement for propane services on February 15, 2019. Super-Save says the respondents breached the contract by refusing to accept delivery of the propane tank and fuel on February 20, 2019. Super-Save claims $3,365.25 in liquidated damages under the agreement.

3.      The respondents say Super-Save breached the contract by not delivering the propane and tank on February 19, 2019, as agreed to. The respondents say they were entitled to cancel the contract because Super-Save breached the contract first. They say they owe Super-Save nothing.

4.      Mrs. Wrzesien counterclaims against Super-Save for $581.92 in legal fees. Super-Save says it owes Mrs. Wrzesien nothing.

5.      Super-Save is represented by an employee. Mrs. Wrzesien represents herself Mr. Wrzesien.

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. 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 in the interests of justice.

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 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.    Were the Wrzesiens entitled to cancel the contract on February 20, 2019?

b.    If not, did either Super-Save or the Wrzesiens breach the contract and, if so, what is the appropriate remedy?

c.    Must Super-Save reimburse Mrs. Wrzesien for her legal costs and, if so, how much?

EVIDENCE AND ANALYSIS

11.   In a civil claim such as this one the applicant, Super-Save, must prove its claim on a balance of probabilities. Mrs. Wrzesien must also prove her counterclaim on a balance of probabilities. After reviewing the parties’ submissions and evidence, I asked a CRT clerk to request further submissions and any supporting evidence from both parties about the application of the Business Practices and Consumer Protection Act (BPCPA) to this dispute. I note that Super-Save did not provide any submissions or evidence on that issue, despite being given the opportunity to do so. I will only refer to the evidence necessary to explain and give context to my decision.

12.   It is undisputed that the Wrzesiens met with a Super-Save sales agent (DL) on February 15, 2019 at their home. That day Mr. Wrzesien signed a contract to rent a propane tank and receive propane delivery from Super-Save for 5 years. Although Mrs. Wrzesien did not sign the agreement, I find Mr. Wrzesien signed the contract on behalf of both himself and Mrs. Wrzesien. This is because the contract lists both of the Wrzesiens as the customers, and Mrs. Wrzesien says she was present at the meeting, and has represented herself as a party to the contract in her dealings with Super-Save and in this dispute. So, I find that Mrs. Wrzesien is also a party to the agreement, even though she did not sign the document.

13.   The Wrzesiens names and address are handwritten into Super-Save’s typed contract form, as is the type of tank required and the per liter cost of propane. February 19, 2019 is handwritten in a spot for the effective date. Below this information are several terms. I find the relevant terms are:

•         Clause 1 - Super-Save has the exclusive right to provide all propane to the Wrzesiens during the term of the agreement.

•         Clause 2 - The agreement is for 5 years, starting on the Effective Date.

•         Clause 3 - The Effective Date is either the first day the equipment is delivered or propane service commences, or the first day after any pre-existing third party service contract ends.

•         Clause 11 - The agreement may be terminated by the Wrzesiens on written notice between 180 and 90 days prior to the end of the 5-year term (known as a cancellation window). If the Wrzesiens unlawfully terminate the agreement prior to its expiry, Super-Save may accept the Wrzesiens’ repudiation and terminate the agreement.

•         If the Wrzesiens unlawfully terminate the agreement prior to receiving any propane or equipment delivery, they agree to pay $2,500 as liquidated damages.

14.   The parties agree that the contract’s effective date is February 19, 2019, despite Clause 3, which says the effective date is the date of delivery. Given the February 19, 2019 handwritten effective date, and the parties’ agreement, I find the agreement’s effective date is February 19, 2019.

15.   Super-Save did not deliver propane, or a tank, to the Wrzesiens on February 19, 2019. The Wrzesiens say they received a propane delivery from a third-party supplier on February 19, 2019, as they were out of propane. Super-Save attempted to deliver propane and a tank to the Wrzesiens on February 20, 2019 but the Wrzesiens refused the delivery. None of this is disputed.

16.   The parties agree that the Wrzesiens terminated the contract in a February 20, 2019 telephone call with a Super-Save representative.  

Was the Contract Cancelled?

17.   The Wrzesiens’ argue that they cancelled the contract within 5 days’ of receiving it, as they were entitled to do under the BPCPA and so they are not liable for the liquidated damages claimed by Super-Save. For the reasons set out below, I agree.

18.   The BPCPA defines a direct sales contract as a contract between a supplier and a consumer for the supply of goods or services that is entered into at a place other than the supplier’s permanent place of business. As the February 15, 2019 agreement was entered into at the Wrzesiens’ home, I find it is a direct sales contract between Super-Save as the supplier and the Wrzesiens as the consumers.

19.   Section 21 of the BPCPA says a consumer may cancel a direct sales contract by giving notice of the cancellation to the supplier within 10 days of receiving a copy of the contract. From the Wrzesiens’ submissions, I infer they received a copy of the contract on February 15, 2019, the day they signed it. I further find they cancelled the contract during the telephone conversation with Super-Save on February 20, 2019, which is within the 10-day cancellation window set out in section 21 of the BPCPA.

20.   Section 54 of the BPCPA says a consumer can provide cancellation notice by any method “that permits a person to produce evidence that they cancelled the contract”. I find that this is the case in this dispute.

21.   Super-Save provided as evidence computer print outs of telephone notes from its February 20, 2019 telephone conversation with the Wrzesiens. I find the phone notes are evidence that the Wrzesiens cancelled the contract. The phone notes show the Super-Save employee spoke with both Wrzesiens, although it was Mr. Wrzesien who specifically said they were not going ahead with Super-Save’s service. Based on the phone notes, I find Mrs. Wrzesien was likely present when Mr. Wrzesien verbally cancelled the contract and could provide a statement as evidence. In these circumstances, I find the February 20, 2019 telephone call was a method of cancelling the contract that permitted a person to produce evidence of the cancellation, pursuant to section 54 of the BPCPA.

22.   In summary, I find the Wrzesiens were statutorily entitled to cancel the contract under the BPCPA, which they did. So, it follows that they are not responsible for paying the liquidated damages claimed by Super-Save. Given this, I find I need not consider whether either party breached the contract. I dismiss Super-Save’s claim for liquidated damages.

Counterclaim for Legal Fees

23.   Mrs. Wrzesien counterclaims for her legal fees in attempting to resolve this dispute. I find Ms. Wrzesien is claiming her legal fees as dispute-related expenses.

24.   CRT Rule 9.5(1) says a successful party will usually be entitled to reimbursement of dispute-related expenses. CRT Rule 9.5(3) says that, except in extraordinary circumstances, the CRT will not order one party to pay another party’s legal fees in a small claims dispute. I find there is nothing extraordinary about this dispute as it did not involve an unusually large amount of evidence or issues of unusual complexity. Further, there is no evidence that Super-Save engaged in reprehensible conduct during the dispute process, which would deserve reproof, as described in the non-binding decision of Parfitt et al. v. The Owners, Strata Plan VR 416 et al, 2019 BCCRT 330.

25.   I dismiss Mrs. Wrzesien’s counterclaim.

26.   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. As neither party was successful with their respective claims, I find no party is entitled to reimbursement of their CRT fees.

ORDER

27.   I dismiss Super-Save’s claim, Mrs. Wrzesien’s counterclaim, and this dispute.