Date Issued: January 29, 2021

File: SC-2020-007360

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Alexia Holdings Ltd. v. Haruna Sales & Service Ltd., 2021 BCCRT 106

Between:

ALEXIA HOLDINGS LTD.

Applicant

And:

HARUNA SALES & SERVICE LTD.

Respondent

INTRODUCTION

1.      This dispute is about a restocking fee charged when a customer returned an outboard motor.

2.      The applicant Alexia Holdings Ltd. (Alexia) purchased an outboard motor from the respondent Haruna Sales & Service Ltd. (Haruna) for $3,81.60. The motor was allegedly delivered incomplete and Alexia cancelled the sale and returned the motor. Alexia says Haruna deducted a $787.25 “restocking fee”, that did not form part of the sales contract, from the refund. Alexia claims $787.25.

3.      In its Dispute Response filed at the outset of this proceeding, Haruna wrote that it could not find records of the motor sale. In submissions, Haruna says that its “all sales final” policy was noted on the sale invoice and posted in its showroom. Haruna asks me to dismiss the dispute.

4.      Alexia is represented by business contact PS. Haruna is represented by business contract JD.

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 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.

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.

ISSUE

9.      The issue in this dispute is whether Alexia is entitled to a refund of the $787.25 restocking fee.

 EVIDENCE AND ANALYSIS

10.   In this civil claim, as the applicant Alexia bears the burden of proof on a balance of probabilities. I have reviewed the evidence and submissions but refer to them only as I find necessary to explain my decision.

11.   The parties agree to the following facts:

a.    On August 17, 2020, Alexia purchased an Evinrude 25 horsepower outboard motor (Motor) from Haruna for $3,801.60 (Purchase Price).

b.    Alexia returned the Motor on the same day it was purchased.

c.    Haruna refunded Alexia the Purchase Price less a $787.25 restocking fee.

12.   The parties disagree about whether Haruna must refund Alexia the $787.25 restocking fee.

13.   The central issue is whether the restocking fee was part of the parties’ sale agreement.

14.   The August 17, 2020 purchase invoice has a note that reads “NO RETURNS OR EXCHANGES ALL SALES FINAL”. It is uncontested that Haruna did not specify the Motor was a final sale until issuing this invoice, after Alexia paid the purchase price. Although there may have been a notice up in the showroom about final sales, I find it is not determinative because Haruna agreed to take the motor back and the parties’ disagreement is confined to the restocking fee.

15.   PS says the motor was not complete and so he returned it. Haruna says the motor was complete, and that PS claimed to be missing controls and a tiller kit which are not included with the motor purchase. Although Haruna filed a 2020 Pricing and Order forms document, it did not explain what was included and what was not included for this motor by reference to the document. I find that PS was entitled to return the motor, regardless of any final sale policy, because it was missing components that he understood to be included, based on the floor models.

16.   Haruna says that PS agreed to a refund less the restocking fee, verbally, as a resolution to his upset about the motor.

17.   The purchase invoice does not mention a restocking fee. The return invoice, prepared the same day, shows a $787.25 restocking fee deduction.

18.   PS says Haruna first mentioned the restocking fee when he returned the Motor and was told a 20% restocking fee would apply and that his response was to the effect of “you have to be joking”. PS says he told Haruna he would take them to court on this issue. Haruna does not specifically contest this, so I accept Alexia’s evidence and find that while Haruna agree to the return, PS did not agree to the restocking fee deduction.

19.   Because the restocking fee is not noted on the purchase invoice and was not discussed prior to the Motor’s return, I find that it was not part of the purchase agreement.

20.   I find that Haruna deducted a restocking fee when that was not a term of the sale agreement without PS’s subsequent agreement. Therefore, I find the restocking fee was not a valid deduction from the Purchase Price. I order Haruna to refund Alexia the claimed $787.25.

21.   The Court Order Interest Act applies to the CRT. The applicant/respondent is entitled to pre-judgment interest on the $787.25 from August 17, 2020, the date of the purchase, to the date of this decision. This equals $1.61.

22.   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. I find Alexia is entitled to reimbursement of $125 in CRT fees. Alexia did not claim dispute-related expenses.

ORDERS

23.   Within 30 days of the date of this order, I order Haruna to pay Alexia a total of $913.86, broken down as follows:

a.    $787.25 as a refund of the restocking fee,

b.    $1.61 in pre-judgment interest under the Court Order Interest Act, and

c.    $125 for CRT fees.

24.   Alexia is entitled to post-judgment interest, as applicable.

25.   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.

26.   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.