Date Issued: January 4, 2021

File: SC-2019-008620

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Pandher v. Jain, 2021 BCCRT 3

Between:

MANINDER PANDHER

Applicant

And:

MEHAK JAIN, SANDEEP JAIN, and ACME VISA SOLUTIONS LIMITED

Respondents

And:

MANINDER PANDHER

Respondent BY COUNTERCLAIM

REASONS FOR DECISION
Tribunal Member:	Sherelle Goodwin

INTRODUCTION

1.      This dispute is about an immigration services contract.

2.      The applicant and respondent by counterclaim, Maninder Pandher, says she signed a retainer agreement with the respondents, Mehak Jain (Ms. Jain), Sandeep Jain (Mr. Jain) and Acme Visa Solutions Limited (Acme), to provide immigration advice and services. Ms. Pandher says she terminated the agreement a few days later but the respondents refused to return the deposit she paid. Ms. Pandher claims $3,000 as reimbursement of her deposit.

3.      The respondents say they are entitled to keep the $3,000 deposit because they provided service and advice to Ms. Pandher. They also say Ms. Pandher breached the signed retainer agreement by failing to attempt to resolve her dispute with the respondents directly before complaining to the respondents’ regulatory body, the Immigration Consultants of Canada Regulatory Council (ICCRC).

4.      Mr. Jain counterclaims against Ms. Pandher for breaching the retainer agreement’s dispute resolution clause. He claims $5,000 in damages for the alleged breach of contract.

5.      Ms. Pandher, Ms. Jain, and Mr. Jain are all self-represented. Mr. Jain also represents Acme.

6.      As explained below I find Mr. Jain and Acme must refund Ms. Pandher $2,572.50 of her deposit. I dismiss Ms. Pandher’s claim against Ms. Jain and dismiss Mr. Jain’s counterclaim against Ms. Pandher.

JURISDICTION AND PROCEDURE

7.      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.

8.      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.

9.      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.

10.   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

11.   The issues in this dispute are:

a.    Did Ms. Pandher breach the retainer agreement and, if so, what is an appropriate remedy?

b.    Must the respondents reimburse Ms. Pandher her deposit and, if so, how much?

EVIDENCE AND ANALYSIS

12.   In a civil dispute such as this one the burden is on the applicant, Ms. Pandher, to prove her case on a balance of probabilities. The same burden applies to Mr. Jain’s counterclaim.

13.   Mr. Jain did not provide reply submissions on his counterclaim, despite being given the opportunity to do so. Ms. Jain provided no submissions on her own behalf. Her Dispute Response denies Ms. Pandher’s claims and simply refers to Mr. Jain’s response. I have reviewed all other submissions and evidence provided. I will only refer to that evidence necessary to explain and give context to my decision.

14.   On August 13, 2019, Ms. Pandher went to the respondents’ office and spoke to both Ms. Jain and Mr. Jain, who I find are employees of Acme. Ms. Pandher sought advice and assistance to become a Permanent Resident in Canada. On August 15, 2019, Ms. Pandher returned to the office, met with Ms. Jain and signed a retainer agreement. The same day Ms. Pandher paid $150 cash and e-transferred another $3,000 to Acme . On August 20, 2019, Ms. Pandher telephoned Ms. Jain, and emailed Mr. Jain. Ms. Pandher said she no longer wished to be represented by the respondents and asked them to refund her $3,150 deposit, including GST. None of this is disputed.

15.   I find the August 15, 2019 retainer agreement sets out the terms and conditions of the parties’ contract. I find the relevant terms are:

•         The agreement is between Ms. Pandher (the applicant) and Mr. Jain, both personally (the consultant) and as a representative for Acme (the company).

•         The applicant agrees to pay a $3,000 deposit, plus GST, on signing the retainer agreement, and to pay further installments of $3,000 and $2,000 on future events.

•         The consultant will provide a “record of account” as work is completed and fees are taken from “the company”, which I infer means as accounts are paid from the deposit held in trust by Acme.

•         Acme’s hourly rate is $225.

•         If the applicant withdraws their immigration application, they agree to give the consultant written notice of withdrawal and pay any outstanding fees up to, and including, the date of withdrawal. The consultant agrees to refund any unused fees to the applicant.

•         The applicant agrees to try to resolve any “concerns about performance of or any dispute about the payment of fees” with Acme, before “taking it up with” the ICCRC or any other body. If an agreement cannot be reached the applicant agrees to present the concern in writing to Acme and give it 30 days to respond before filing a complaint with the ICCRC.

16.   The parties agree that, at the August 15, 2019 meeting, Ms. Jain advised Ms. Pandher that she would get more points toward her permanent resident status application if she took a job in Whistler, B.C.. It is undisputed that the respondents recommended Ms. Pandher to a specific employer in Whistler who the respondents had worked with in the past.

17.   Ms. Pandher says she telephoned Ms. Jain on August 20, 2019 and told her that she did not want to move to Whistler and did not want the respondents to represent her on her immigration application any longer. Ms. Pandher says she asked Ms. Jain to refund the paid $3,150 deposit. Ms. Pandher says that Ms. Jain told her that the deposit had already been paid to the Whistler employer so could not be refunded to Ms. Pandher. Mr. Jain denies paying Ms. Pandher’s deposit to any employer and denies that Ms. Jain said that to Ms. Pandher. Ms. Jain did not provide any statement or her own submissions about the matter and Mr. Jain provided no explanation why Ms. Jain could not provide that direct evidence. I prefer and accept Ms. Pandher’s direct evidence about the telephone conversation, given that there is no direct evidence from Ms. Jain. On balance, I find Ms. Jain told Ms. Pandher that her deposit could not be refunded as it had already been paid out.

18.   As noted above, Ms. Pandher emailed Mr. Jain and Acme on August 20, 2019, following the telephone call. She recounted her conversation with Ms. Jain, asked the respondents why they had paid out her deposit. Ms. Pandher cancelled the retainer agreement and asked for her deposit to be returned. It is undisputed that Ms. Pandher copied the email to the ICCRC.

19.   Mr. Jain says Ms. Pandher breached the dispute resolution clause of the retainer agreement because she copied the ICCRC with her August 20, 2019 email prior to giving the respondents 30 days to respond to her concerns. He also says Ms. Pandher breached the clause by failing to attend at the Acme office for an in-person meeting to discuss the matter. For the reasons set out below, I disagree.

20.   First, I find the dispute resolution clause does not require Ms. Pandher to attend an in-person meeting. Rather, it states that she must try to resolve her concerns with Acme. I find Ms. Pandher’s refusal to attend at Acme’s office in person is not unreasonable because Ms. Jain had already refused to refund Ms. Pandher’s deposit and, in his August 29, 2019 email Mr. Jain accused Ms. Pandher of having “malicious intentions” in copying her August 20, 2019 email to the ICCRC. I find Ms. Pandher’s refusal to meet with the respondents reasonable, given the tone of Mr. Jain’s response to Ms. Pandher’s attempts to terminate the retainer agreement.

21.   Second, I agree with Ms. Pandher that she did not file an official complaint with the ICCRC. Based on the ICCRC’s response email to Ms. Pandher on August 20, 2019, I find the ICCRC did not consider Ms. Pandher’s email as a complaint, as it invited her to submit an official complaint in a specific form. I accept Ms. Pandher’s undisputed statement that she did not subsequently file an official complaint with the ICCRC.

22.    Although the retainer agreement requires Ms. Pandher to try to resolve her fee dispute with the respondents before “taking it up” with the ICCRC, it also discusses the 30-day response period the respondents are entitled to before Ms. Pandher “files a complaint” with the ICCRC. Given this wording, I interpret the “taking it up” phrase in the agreement to mean “filing a complaint” about the fee dispute. As I find Ms. Pandher did not file a complaint with the ICCRC, I find she has not breached the dispute resolution clause of the retainer agreement.

23.   Even if I had found that Ms. Pandher breached the contract, I would have found that Mr. Jain failed to prove he suffered any associated damages. Mr. Jain did not provide any evidence that he suffered any financial loss resulting from Ms. Pandher’s alleged breach of the agreement, such as any expenses to remedy the alleged breach. So, I dismiss Mr. Jain’s counterclaim for breach of contract.

24.   I now turn to consider Ms. Pandher’s claim for the return of her deposit.

25.   Under the retainer agreement, Ms. Pandher is entitled to terminate the agreement with written notice, which I find Ms. Pandher provided to Mr. Jain and Acme in her August 20, 2019 email. Under the agreement’s terms, I find Ms. Pandher is entitled to a refund of her $3,000 deposit (plus $150 GST), less any fees payable to Acme for work done up to, or on, August 20, 2019.

26.   I disagree with the respondents that they are entitled to all of Ms. Pandher’s deposit as fees for work done. I find on Acme’s July 15, 2020 invoice a “record of account” as referred to in the parties’ agreement. Based on the invoice, I find Acme billed Ms. Pander a total of $1,181.25 for 5 hours work plus GST. Although the invoice does not identify the dates of the work done, it describes client meetings, 2 consultations, document and information gathering, file assessment, preparing and signing the retainer agreement, telephone calls, and 2 scheduled appointments which Ms. Pandher did not attend. Based on emails between the parties, I find the 2 missed appointments occurred after Ms. Pandher terminated the retainer agreement and so I find Acme is not entitled to fees for those meetings.

27.   I further find Acme is not entitled to bill for the August 13, 2019 meeting or retainer agreement preparation as those events occurred before the parties had entered any agreement about payment for services. On balance, I find the respondents are entitled to some payment for work done, including the August 15, 2019 meeting, receiving and reviewing Ms. Pandher’s resume, and considering her immigration application. On a judgment basis and keeping in mind the CRT’s mandate of efficiency and proportionality, I find Acme is entitled to payment of $577.50 for services rendered, which is equal to 2 hours of work plus GST. Given that Ms. Pandher paid $3,150 as a deposit, I find she is entitled to a refund of $2,572.50.

28.   I now turn to consider which of the respondents is responsible for reimbursing this money to Ms. Pandher.

29.   First, I find Ms. Jain is not responsible. Although she met with and advised Ms. Pandher, I find Ms. Jain was not party to the August 15, 2019 retainer agreement and was not the recipient of Ms. Pandher’s deposit payment. On balance, I find Ms. Pandher has failed to prove that Ms. Jain is responsible for refunding any of Ms. Pandher’s unused deposit. I dismiss Ms. Pandher’s claim against Ms. Jain.

30.   I find Mr. Jain was a party to the retainer agreement, both his personal capacity and as Acme’s representative. I further find Ms. Pandher directed her e-transferred deposit to Mr. Jain’s attention at his email address with Acme. On balance, I find the corporate respondent Acme and the personal respondent Mr. Jain are jointly and severally liable to Ms. Pandher. This means that Ms. Pandher may recover the monies owed from Acme or Mr. Jain.

31.   The Court Order Interest Act applies to the CRT. Ms. Pandher is entitled to pre-judgment interest on the $2,572.50 from August 20, 2019, the date she requested a refund, to the date of this decision. This equals $49.39.

32.   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 Ms. Pandher was mostly successful in this dispute, I find she is entitled to reimbursement of $125 in CRT fees. As Mr. Jain was unsuccessful in his counterclaim, I find he is not entitled to reimbursement of any CRT fees or dispute-related expenses.

ORDERS

33.   Within 14 days of the date of this order, I order Mr. Jain and Acme, jointly and severally, to pay Ms. Pandher a total of $2,746.89, broken down as follows:

a.    $2,572.50 in debt as partial reimbursement of her deposit,

b.    $49.39 in pre-judgment interest under the Court Order Interest Act, and

c.    $125 in CRT fees.

34.   Ms. Pandher is entitled to post-judgment interest, as applicable.

35.   I dismiss Ms. Pandher’s claim against Ms. Jain. I also dismiss Mr. Jain’s counterclaim against Ms. Pandher.

36.   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.

 

37.   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.