Date Issued: January 11, 2021

File: SC-2019-009831

Type: Small Claims

Civil Resolution Tribunal

Indexed as: MacPherson (dba MacPherson Woodcrafts) v. Coloma (dba Coloma Guitars), 2021 BCCRT 31

Between:

DANIEL MACPHERSON (Doing Business As MACPHERSON WOODCRAFTS)

Applicant

And:

MEREDITH COLOMA (Doing Business As COLOMA GUITARS)

Respondent

And:

DANIEL MACPHERSON (Doing Business As MACPHERSON WOODCRAFTS)

Respondent by counterclaim

REASONS FOR DECISION
Tribunal Member:	Shelley Lopez, Vice Chair

INTRODUCTION

1.      This is a consignment of goods dispute. The applicant (and respondent by counterclaim) is Daniel MacPherson (dba MacPherson Woodcrafts). The respondent (and applicant by counterclaim) is Meredith Coloma (dba Coloma Guitars). Mr. MacPherson claims $4,256.02, which he says is the value of the guitar-making (luthier) supplies he consigned to Ms. Coloma, for which he has not been paid or had returned to him.

2.      Ms. Coloma says the value of Mr. MacPherson’s retained goods is only about $2,000 to $2,500. Ms. Coloma counterclaims for $3,500, which she says represents her advertising efforts and expenses in trying to market Mr. MacPherson’s supplies. Mr. MacPherson denies he agreed for pay Ms. Coloma for marketing for his business and says at most he owes her a few hundred dollars for Facebook ads the parties had discussed.

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.      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 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.

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.

8.      I acknowledge Ms. Coloma argues Mr. MacPherson harassed her friends and co-workers in pursuing his claim. First, there is no recognized tort of harassment in BC and there is no claim for damages for harassment before me. Second, the evidence before me, including Mr. MacPherson’s messages to those third parties, does not appear to reflect any harassment by Mr. MacPherson. Given the circumstances, I will make no further comment about any alleged harassment.

ISSUES

9.      The issues in this dispute are:

a.    What is the value of Mr. MacPherson’s property that Ms. Coloma either retained or sold and did not pay him for?

b.    To what extent did the parties have an agreement for Ms. Coloma to market Mr. MacPherson’s business, and is she entitled to compensation as claimed?

EVIDENCE AND ANALYSIS

10.   In a civil proceeding like this one, the applicant Mr. MacPherson must prove his claims on a balance of probabilities. Ms. Coloma must prove her counterclaim to the same standard. I have read all the evidence and submissions before me, but refer only to what I find relevant to provide context for my decision. While Ms. Coloma chose not to provide submissions in response to Mr. MacPherson’s claim, she did provide submissions in her counterclaim that includes arguments about Mr. MacPherson’s claim.

11.   I find the evidence establishes the following, which is not particularly disputed:

a.    The parties knew each other through the local guitar community.

b.    In the fall of 2018, the parties verbally agreed for Ms. Coloma to store and display Mr. MacPherson’s products at her chosen business location. If she sold anything, she would forward the payment to Mr. MacPherson. This arrangement also benefitted Ms. Coloma, as the goods could be sold to her guitar-building students.

c.    The parties did not have a written agreement, either for the consignment of Mr. MacPherson’s goods or for any marketing efforts by Ms. Coloma of his business.

d.    Ms. Coloma still has in her possession various luthier supplies belonging to Mr. MacPherson. Ms. Coloma says, without any supporting evidence, the “Rocklite” items are in storage and worth only $2,000 to $2,500. Mr. MacPherson says the items she sold and did not pay him for, together with the items she retained, are worth $4,256.02.

e.    While Mr. MacPherson’s record-keeping was not perfect, he created and sent Ms. Coloma a stock list of the goods he left with her for consignment. Ms. Coloma has not submitted any evidence, documentary or in her submissions, to describe in any detail the goods she sold or those she has retained.

f.     Mr. MacPherson has not been paid for any goods sold since November 2018. Ms. Coloma does not say exactly how many goods were sold nor does she say how much she received for Mr. MacPherson’s “Rocklite” goods undisputedly sold in November or December 2018.

12.   I turn to the relevant chronology. At some point, Mr. MacPherson picked up some of his goods for an Okanagan trade show, and I find the majority was left behind at Ms. Coloma’s shop for consignment. As noted above, he never received from Ms. Coloma payment or any record of what had been sold after the end of October 2018.

13.   In mid-November 2018, Ms. Coloma texted that she had sold various “Rocklite” items for Mr. MacPherson, and wrote, “I’ll etransfer you – totally forgot!”. She did not say how much she received in payment. As noted, it is undisputed Ms. Coloma never paid Mr. MacPherson for this November 2018 sale.

14.   In his December 1, 2018 email to Ms. Coloma, Mr. MacPherson wrote that he acknowledged his stock list was “messy” and that he had not kept proper records and appeared to “have miscounted a few things but it shows what sold”. I infer he was referring to his spreadsheet that he has submitted in evidence, which lists various items and quantities sold, but no prices. On December 5, 2018, Mr. MacPherson messaged that he wanted to confirm Ms. Coloma had received his email with his stock list. Ms. Coloma responded that her computer had been damaged and it was slow for her to retrieve information on her phone. The evidence shows Ms. Coloma never objected to his stock list or values until she responded to this CRT proceeding that Mr. MacPherson began on November 22, 2019.

15.   After multiple unsuccessful attempts to contact Ms. Coloma about getting payment and his remaining goods back, Mr. MacPherson sent her a detailed November 5, 2019 invoice (which he says was based on his handwritten September 2018 notes taken in Ms. Coloma’s shop). The invoice lists about 30 different product items with various prices for each, and has a $4,256.02 total, the amount claimed in this dispute. While Ms. Coloma says the mailed invoice was signed for by her former business partner, she does not say she never received it and does not explain why she never responded to it or to Mr. MacPherson’s multiple efforts to contact her, other than to say she had to step away from her business due to an illness.

16.   While in one submission Ms. Coloma disputes the accuracy of the stock list, she does not explain the alleged errors, other than to generally say Mr. MacPherson overvalued the stock. Apart from referring to her illness in late 2018 and 2019, Ms. Coloma does not explain why she never responded to Mr. MacPherson after March 2019 nor does she provide any documentary evidence of what goods she has kept or what she has sold. She also does not say what payment she received for goods sold in November or December 2018. Given the lengthy period of time between the onset of Mr. MacPherson’s inquiries in December 2018 to November 2019 when he started this proceeding, plus the several months during the CRT process before evidence was collected, I find Ms. Coloma had sufficient time to gather relevant evidence.

17.   On balance, I find the best evidence of the goods left with Ms. Coloma for which Mr. MacPherson has not been paid is his invoice that also sets out their value. Notably, while Ms. Coloma says his value is “overstated”, she does not identify how or provide any alternative pricing other than to give the general range of $2,000 to $2,500.

18.   I note I have considered whether I ought to order Ms. Coloma to return the retained goods to Mr. MacPherson. I find this would be inappropriate, because he primarily sought compensation rather than their return and because the evidence before me is not sufficiently clear as to what she sold and what she has left in storage. I find Mr. MacPherson is entitled to payment of the $4,256.02 claimed.

Ms. Coloma’s counterclaim for $3,500

19.   Ms. Coloma claims $3,500 for “google ads, facebook/Instagram ads, website and online marketing costs and luthier supply sales”. She provided no supporting evidence, apart from her own internal spreadsheets that indicate she spent $1,229.25 on certain ads and $244 on 2 “campaigns”, for a total of $1,473.25. In particular, she provided no invoices or receipts for money she paid to Facebook or Instagram or any other advertising platform. Ms. Coloma also does not explain the difference between the claimed $3,500 and her $1,473.25 spreadsheet totals, and I infer some portion of it is a claim for her own time spent assisting Mr. MacPherson.

20.   I find the evidence, including the parties’ lengthy Facebook message exchanges in the fall of 2018, shows Ms. Coloma did not request or expect payment for her time spent in responding to Mr. MacPherson, or for her time in reviewing his website platform. Rather, the tenor of the parties’ messages clearly indicates she did this as a favour and in part to further their partnership in the guitar community. To the extent Ms. Coloma argues she re-built a website for Mr. MacPherson, she provided no evidence of her having done so and there is no evidence he even knew she had done so, let alone had access to it.

21.   In any event, Ms. Coloma’s own submissions and the Dispute Response filed at the outset of this proceeding show that she helped Mr. MacPherson as a “goodwill” gesture, which I find was part of their mutual desire to further the guitar community’s interests.

22.   Facebook messages between the parties in September and October 2018 show Mr. MacPherson suggested Ms. Coloma put Facebook advertising charges on his credit card, and that she chose to use her own. The messages also show Mr. MacPherson accepted Ms. Coloma’s looking into his “woo commerce platform” and uploading his website inventory into a Facebook shop. He wrote that he would look into switching platforms and that he would need someone else to do it for him. Ms. Coloma responded that she could handle that for him. However, there is no evidence before me that the parties ever talked again about her actually doing so.

23.   On October 17, 2018, Mr. MacPherson messaged Ms. Coloma asking her, “how do you feel about adding the products to the webstore?”. He added it would just be a few at a time, and Ms. Coloma responded “sure!” without any mention of payment. I find this also supports a conclusion the parties did not contemplate payment for Ms. Coloma uploading products to the webstore. Rather, the evidence shows the parties were attempting to form a guitar association in the community and the sales of Mr. MacPherson’s products were to play some role in that.

24.   In the parties’ fall 2018 messages about Ms. Coloma handling advertising of Mr. MacPherson’s goods, the parties only specifically discussed advertising on Facebook. Ms. Coloma wrote those ads would “not be much” and around $100 to $200 for the following 4 weeks. I find this supports the conclusion there was no expectation she would be paid for her own time in placing ads. Similarly, the fact that on October 5, 2018 Mr. MacPherson asked if he could hire Ms. Coloma to “mull over” a workspace layout with him also suggests that the ads’ placement was part of their mutual interest and also a favour among friends. There is no evidence he ever did hire her for that workspace layout.

25.   I find that Mr. MacPherson only consented to the relatively low cost of $100 to $200 for advertising, and had no knowledge of any additional expenses that Ms. Coloma might incur. While I accept that the workload for Ms. Coloma might have become too much for her, the evidence before me shows that she did not raise any concern about it to Mr. MacPherson. I find he cannot be held responsible for any significant out-of-pocket expenses or for her time spent when he never agreed to that and did not know such expenses were being incurred.

26.   Further, in Ms. Coloma’s submission, at one point she admits “she was not getting paid” for assisting Mr. MacPherson, an arrangement I find consistent with the parties’ text messages in 2018. While Ms. Coloma now argues she was to “get a cut” of the sales, I find the evidence does not support this assertion. Again, the parties’ text messages favour a conclusion that she provided the assistance at no charge. In any event, as noted above Ms. Coloma chose not to provide any evidence at all to support a commission as she did not say how much she received in selling Mr. MacPherson’s goods.

27.   Next, while I acknowledge Ms. Coloma’s submissions that Mr. MacPherson’s invoicing and inventory lists were disorganized, I find she cannot now claim compensation for her inconvenience in dealing with it. She never raised the issue with Mr. MacPherson at the relevant time and as noted, the parties had no agreement she would be paid for her time.

28.   So, I find the only thing Ms. Coloma is entitled to is payment for the cost of posting Facebook ads, which is what I find the parties agreed Mr. MacPherson would reimburse her for. As noted, Ms. Coloma said this would cost $100 to $200 for 4 weeks of advertising. The evidence also shows Ms. Coloma indicated the advertising then stopped, and later she messaged him they had “finally” resumed.

29.   Ms. Coloma produced her own spreadsheet that suggests she spent $1,229.25 on advertising for Mr. MacPherson. First, as noted I find Mr. MacPherson never agreed to that level of advertising and Ms. Coloma never indicated she was spending that amount. Second, some of the listed advertisements are not clearly related to Mr. MacPherson’s goods. Third, one of them is a post “Coloma Guitars is Excited to Partner with MacPherson”, which was $25 per day and listed as an expense of $39.24. Fourth, there are no receipts of what she paid Facebook or other advertising platforms, but only her own internal spreadsheets.

30.   On balance, I find Mr. MacPherson is responsible for $300 of advertising costs, on a judgment basis, as this most closely reflects the parties’ documented discussion. This amount is to be offset from the $4,256.02 award, leaving $3,956.02 payable by Ms. Coloma to Mr. MacPherson.

Interest, fees, and expenses

31.   The Court Order Interest Act (COIA) applies to the CRT. I find Mr. MacPherson is entitled to pre-judgment interest on the $3,956.02 from April 1, 2019 to the date of this decision. I choose April 1, 2019 as by this date Mr. MacPherson had clearly sought payment and the return of his goods. This interest equals $106.07.

32.   Under section 49 of the CRTA and the CRT’s rules, as Mr. MacPherson was successful in this dispute I find he is entitled to reimbursement of $200 in paid CRT fees. As Ms. Coloma was unsuccessful, I dismiss her claim for reimbursement of CRT fees. No dispute-related expenses were claimed.

ORDERS

33.   Within 30 days of this decision, I order Ms. Coloma to pay Mr. MacPherson a total of $4,262.09, broken down as follows:

a.    $3,956.02 in damages,

b.    $106.07 in pre-judgment COIA interest, and

c.    $200 in CRT fees.

34.   Mr. MacPherson is entitled to post-judgment interest, as applicable. The parties’ remaining claims are dismissed.

35.   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.

36.   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.