Date Issued: January 20, 2021

File: SC-2019-007302

Type: Small Claims

Civil Resolution Tribunal

Indexed as: 2 Burley Men Moving Ltd. v. Payne, 2021 BCCRT 68

Between:

2 BURLEY MEN MOVING LTD.

 

Applicant

And:

HEATHER PAYNE

 

Respondent

And:

2 BURLEY MEN MOVING LTD.

 

Respondent by counterclaim

 

REASONS FOR DECISION
Tribunal Member:	Shelley Lopez, Vice Chair

INTRODUCTION

1.      This dispute is about moving services. The applicant mover (and respondent by counterclaim) is 2 Burley Men Moving Ltd. (Burley). The respondent customer (and applicant by counterclaim) is Heather Payne.

2.      Burley claims $2,657.36 for moving services it provided to Ms. Payne on September 2, 2019, which she undisputedly refuses to pay.

3.      Ms. Payne says Burley overcharged her, damaged her property, and behaved poorly at the delivery address. In her counterclaim, Ms. Payne says Burley failed to move all of her belongings, and is responsible for damage to the moved belongings. Ms. Payne also says Burley’s handling of the move caused her to incur unnecessary flight and ferry expenses for her to be present at the delivery as required by Burley, and to retrieve the goods Burley left behind. Ms. Payne counterclaims for a total of $4,697. Burley says its billing was correct and that the parties’ contract required Ms. Payne to be present for delivery. Burley denies responsibility for Ms. Payne’s claimed damages.

4.      Burley is represented by an employee and Ms. Payne is self-represented.

JURISDICTION AND PROCEDURE

5.      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.

6.      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.

7.      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.

8.      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.

9.      I note Ms. Payne requests anonymization of the published decision. Parties are generally identified in the CRT’s published decisions because its proceedings are considered open proceedings. This ensures transparency and integrity in the justice system. While Ms. Payne referred to “personal privacy reasons”, I find there is no privacy interest here that would reasonably override the “open court” principle of transparency. I decline to anonymize the parties’ identities in this decision.

ISSUES

10.   The issues in this dispute are:

a.    Is Burley entitled to payment under the parties’ moving contract, and

b.    Did Burley breach the parties’ moving contract or was it negligent in handling Ms. Payne’s property, and if so what is the appropriate remedy.

EVIDENCE AND ANALYSIS

11.   In a civil proceeding like this one, Burley must prove their claims on a balance of probabilities, and Ms. Payne 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.

Burley’s $2,657.36 claim for moving services

12.   It is undisputed Ms. Payne hired Burley to move her personal belongings and that Burley’s doing so required ferry travel. The move happened on September 2, 2019.

13.   In short, Ms. Payne refused to pay for Burley’s services in moving her goods. She says Burley requested $6,000 after the move despite having allegedly given a $1,600 quote, damaged her property, and were swearing and yelling at her. It appears undisputed police were called, though Burley says they involve police whenever a client refuses to pay. Ms. Payne also argues that Burley overcharged her in its $2,657.36 invoice.

14.   I turn to the relevant chronology and supporting documentation. The parties’ September 2, 2019 contract, titled “Client Disclaimer” and signed by Ms. Payne, shows September 2 was also the date of delivery. I do not accept Ms. Payne’s unsupported submission that the move date was supposed to have been September 3 and that Burley had made a mistake, which she appears to argue contributed to her later expenses that I discuss further below. The contract confirms the “total due” for Burley’s moving services was $2,657.36, the amount claimed in this dispute.

15.   The contract shows the charges were based on $110 per hour for two men plus travel time, for a total of 16.75 labour hours and 1.26 hours of “extra travel”. I find the contract makes it clear it is based on time, and not a fixed price. The contract which I find is also Burley’s invoice, shows part of the charge was $500.82 for ferries. It also shows Burley started the job at 8:30 a.m. and finished at 1:15 a.m. The contract also says any damage or loss sustained during the move and identified at the time does not release the client from their obligation to pay for the move.

16.   Ms. Payne says Burley required her to sign the contract before it started service. She says the dollar amounts (on the right-hand shaded side of the form) are not what she had agreed to and were filled in after she signed the document.

17.   Ms. Payne says she was never given a copy of the document and that Burley had quoted $1,600, with ferries included. She also says the ferry charges were about $87 higher than what BC Ferries would charge. However, Ms. Payne did not submit any evidence of what BC Ferries would have charged, and in the circumstances I find $500 is not unreasonable. Next, I do not accept that a 1 bedroom apartment’s move from Vancouver Island to the Lower Mainland, including travel time on a ferry, would cost only $1,600 including the $500 ferry charge.

18.   On balance, I find it unlikely Burley quoted Ms. Payne a fixed price for the move, given the contract’s pre-printed typed terms to the contrary, and because I accept Burley would not have been able to reasonably anticipate how long the move would take. I also note Ms. Payne’s witness CB does not say in their September 17, 2020 witness statement that Burley demanded $6,000 as Ms. Payne alleges, although I acknowledge CB said they were present for only the first 2 hours of Burley’s unload process at the delivery address. I find the parties’ contract was based on Burley’s time and expenses reasonably spent. More on the amount claimed below.

19.   In their statement, CB said that they had assisted Ms. Payne with her move-in at the delivery address a year earlier on September 2, 2019. CB says they left about 2 hours after Burley arrived at the house. CB also described how many hours later Ms. Payne called them and was upset, claiming to have been threatened by Burley’s movers. CB also described how Ms. Payne called again later that evening and said that Burley’s truck was stuck on the road and that she was getting noise complaints from other tenants and the homeowner. I place little weight on this hearsay evidence, as I find it does not add anything to Ms. Payne’s own evidence about what happened at the time of the move.

20.   Next, Ms. Payne alleges Burley left her belongings outside. She argues they failed to properly stack her belongings inside to make enough room for all of the belongings inside. I find this suggests that Ms. Payne’s new accommodation may not have readily accommodated all of the delivered boxes. Ms. Payne also complains Burley failed to heed a box’s label not to stack anything on it, but there is no evidence that the goods inside that box were damaged. On balance, I find there is no basis to order any deduction for boxes left outside or any improperly stacked, because I find Ms. Payne has not proved any damage to any of her goods, which I discuss further below in her counterclaim.

21.   I turn then to the issue of the amount of time Burley charged. Ms. Payne does not challenge the $110 hourly rate. However, Ms. Payne says Burley spent the last 4 hours trying to get its truck unstuck from her steep driveway. As noted, CB says the road was steep and they offered CB’s own smaller truck to transport the goods down, which Burley allegedly declined.

22.   Burley does not dispute its truck got stuck. However, I find the weight of the evidence shows this was a result of the road’s condition at the delivery address and not due to Burley’s negligence. I find there is insufficient evidence that taking the time to unload Burley’s truck into CB’s truck and then unloading again was the more reasonable option. While CB says the road was steep and that they warned Burley, I have no direct evidence before me of the road’s condition. There is also no evidence before me of CB’s qualifications such that I could accept their comment as expert evidence that as a mover Burley should not have attempted down the road.

23.   I find Ms. Payne’s allegation Burley ought to have unloaded into CB’s truck is a deficiency allegation. The burden of proof on that point rests on the person alleging the deficiency, here, Ms. Payne. In short, I have insufficient evidence that Burley unreasonably concluded they could attempt it in their own truck. So, I find that Ms. Payne is responsible for the associated additional travel time. On balance, I find Burley’s invoiced time is reasonable.

24.   Ms. Payne says others later did the same move and it only took them about 3 hours, but she provided no witness statements to this effect. I place no weight on this unsupported submission. Finally, Ms. Payne alleges she was evicted from the delivery address due to Burley’s behaviour. I find this allegation unlikely and unproven. There are no witness statements or eviction notice in evidence.

25.   In summary, I find Burley is entitled to the $2,657.36 charged. The Court Order Interest Act (COIA) applies to the CRT. I find Burley is entitled to pre-judgment interest on the $2,657.36, from September 2, 2019 to the date of this decision. This interest equals $49.68.

Ms. Payne’s $4,697 counterclaim for damages

26.   Ms. Payne says Burley damaged her belongings. In particular, she claims: $250 for 2 Ikea bookshelves, $60 for an electric heater, $2,500 for a bamboo dining set, and $600 for food. Burley denies it damaged her property.

27.   Here, I note that Ms. Burley submitted prior CRT decisions involving Burley, to show that Burley allegedly has a pattern of overcharging and damaging goods. I find these prior decisions are not relevant to the issue of what the parties before me agreed to and whether each has proved their claim. I am not prepared to conclude Burley was dishonest on the basis of prior disputes, as Ms. Payne suggests. I also note that while there were some prior CRT decisions (which are not binding on me in any event) that found Burley was liable, others found they were not. I find it would be inappropriate to selectively rely on those prior decisions that found Burley liable and ignore those where Burley was successful. I find nothing turns on these prior CRT decisions.

28.   The contract shows Ms. Payne opted for the “protection plan” option to limit the value of her goods to $.0.60 per pound, or a $60 maximum repair per 100 pounds, less a $50 deductible. The contract indicated Burley was not responsible for packing the goods. Notably, there is no evidence before me as to the weight of the allegedly damaged goods, to permit a calculation under the contract’s terms, even if I did find Burley had damaged her goods. For reasons set out below, I find it did not.

29.   Most significantly, while Ms. Payne submitted various photos of dry boxes on an exterior deck, none of them show damaged goods.

30.   CB says they returned the morning after the move to help Ms. Payne further. CB said they found several of Mr. Payne’s belongings left in the road, including “a broken bookshelf, clothes, office papers, and several other personal items”. Notably, Ms. Payne did not submit photos of belongings in a road. Rather, the photos were of stacked boxes on what appears to be an exterior deck or porch.

31.   In any event, as noted above, Ms. Payne has provided no evidence of the value of any alleged damaged goods and no proof the goods were in fact damaged, such as through photos of the broken bookcase or heater. While she says clothes were damaged, she did not provide any detailed description or valuation, and again, no photos of any damaged clothes. In the absence of proven damage, I dismiss Ms. Payne’s claims for property damage.

32.   I turn to Ms. Payne’s counterclaims for $112 for a flight, $285 for 2 ferry trips to retrieve her belongings a year after the move, $340 for 2 nights at a hotel, and $550 for 11 months’ of vehicle storage. I dismiss these claims also, for the reasons that follow.

33.   Notably, there is nothing in the moving contract that suggests Burley would arrange Ms. Payne’s ferry trip so that she or a designate could be present for the entire delivery as required by the contract. There is no evidence Ms. Payne ever identified a designate for the unload process and she does not submit she did. So, I find Burley reasonably required her to be present for it.

34.   I accept the dollar values were filled in on the contract at the end of the move after Ms. Payne had already signed, once the time spent on the job had been determined. However, I find this does not change the fact that by signing the contract Ms. Payne agreed to its pre-printed typed terms, which included being present for the load and unload processes through to completion.

35.   So, while Ms. Payne says Burley promised to reserve a ferry for her, I find this allegation unproven. It follows that Ms. Payne’s claim that Burley is responsible for her flight expense, because she could not get a ferry reservation, must be dismissed. Under the contract, I find Burley was not responsible for Ms. Payne’s transportation arrangements.

36.   I say the same about Ms. Payne’s claim for hotel and ferry expenses to her return to her former address, a year later, to retrieve a car filled with belongings she says Burley left behind. I also find it unproven Burley left anything behind, as the only photos in evidence were those taken by Ms. Payne on September 5, 2019, of the boxes at the delivery address.

37.   Similarly, I dismiss Ms. Payne’s $550 claim for vehicle storage, which I find is not Burley’s responsibility, although I would have dismissed this claim as unproven in any event because Ms. Payne submitted no evidence at all that she was charged anything for vehicle storage. I note Ms. Payne says it took a year because that is how long she took to find a permanent residence (she says she was evicted from the delivery address), where she could store the car. I also note Ms. Payne does not explain why Burley is at fault for not removing this car or the belongings in it if she did not have room to store it at the time of delivery. She also does not explain why 2 nights’ hotel stay was required. I further note Ms. Payne says the hotel receipt is in her friend’s name who helped her, but provided no statement from that friend to show Ms. Payne was responsible for the expense. I dismiss Ms. Payne’s counterclaims.

38.   Under section 49 of the CRTA and the CRT’s rules, as Burley was successful in this dispute I find it is entitled to reimbursement of $150 in paid CRT fees. As Ms. Payne was unsuccessful, I dismiss her counterclaim for fee reimbursement. No dispute-related expenses were claimed.

ORDERS

39.   Within 14 days of this decision, I order Ms. Payne to pay Burley a total of $2,857.04, broken down as follows:

a.    $2,657.36 in debt,

b.    $49.68 in pre-judgment COIA interest, and

c.    $150 in CRT fees.

40.   Burley is entitled to post-judgment interest as applicable under the COIA. I dismiss Ms. Payne’s counterclaims.

41.   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.

42.   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.