Date Issued: March 3, 2021

File: SC-2020-008587

Type: Small Claims

Civil Resolution Tribunal

Indexed as: M.J. Drapery and Blind Ltd. v. Sharma, 2021 BCCRT 245

Between:

M.J. DRAPERY AND BLIND LTD.

Applicant

And:

USHA SHARMA

Respondent

INTRODUCTION

1.      This dispute is about the purchase and installation of custom-made window blinds. The applicant, M.J. Drapery and Blind Ltd. (MJ) says that the respondent, Usha Sharma, ordered custom blinds from it, which included installation. MJ says the blinds were manufactured, but Mrs. Sharma has refused to allow their installation and has not fully paid for them, although their agreement says the blinds are non-returnable. MJ claims $3,490 for the remaining balance it says Mrs. Sharma owes for the blinds. MJ says it is still willing to install the blinds.

2.      Mrs. Sharma says the blinds were late, so she cancelled her order with MJ and obtained a refund from her credit card company for the $500 deposit she paid. She says she owes nothing.

3.      Mrs. Sharma is self-represented in this dispute. MJ is represented by an owner.

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. Although the parties’ submissions each call into question the credibility of the other party in some respects, I find I can properly assess and weigh the written evidence and submissions before me, and that an oral hearing is not necessary in the interests of justice. In the decision Yas v. Pope, 2018 BCSC 282, the court recognized that oral hearings are not always needed where credibility is in issue. Keeping in mind that the CRT’s mandate includes proportional and speedy dispute resolution, I find I can fairly hear this dispute through written submissions.

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.

ISSUE

8.      The issue in this dispute is whether Mrs. Sharma was entitled to cancel her order, and if not, does she owe MJ $3,490 or another amount?

EVIDENCE AND ANALYSIS

9.      In a civil proceeding like this one, as the applicant MJ must prove its claims on a balance of probabilities. I have read and weighed all the submitted evidence, but I refer only to the evidence I find relevant to provide context for my decision.

10.   The undisputed evidence is that MJ gave Mrs. Sharma a written estimate dated August 19, 2020 for custom window blinds totalling $3,990. Each party’s own copies of the estimate are annotated differently in places, but I find there is no dispute about the contents of the written estimate.

11.   Pre-printed terms on the estimate said that until the balance was paid in full and all of the conditions were fully performed, MJ remained the purchased goods’ owner under the contract. However, the pre-printed terms also said that MJ’s products were custom fabricated and not returnable, and no cancellations or changes would be accepted after work was started or on special orders. Although Mrs. Sharma did not sign the estimate, I find she received a copy of it, and later paid a $500 deposit toward it on August 24, 2020. I find the parties agreed that Mrs. Sharma would purchase the blinds, and MJ would obtain and install them, as set out in the estimate.

12.   Also on August 24, 2020, MJ measured Mrs. Sharma’s windows and wrote an order document setting out the size and features of each blind. The order document repeated the same amounts charged and owed as shown in the estimate, and was not signed. The order also contained pre-printed terms saying that MJ’s products were not returnable, and that MJ “cannot” accept responsibility for cancellations or changes after the order was in production. Mrs. Sharma says she never received a receipt for her $500 deposit or a “contract”, although it is not clear whether she means the August 24, 2020 order or another document. However, given the outcome of my decision below, I find nothing turns on this.

13.   Mrs. Sharma says MJ agreed to install the blinds within 2 to 3 weeks. MJ says it told Mrs. Sharma it could be 6 to 8 weeks before it received the blinds from the manufacturer. Neither the estimate nor the order provided a completion date for the blinds’ purchase and installation. Those documents contained fields for “approximate delivery”, “pick-up installation”, “delivery date”, and “customer pick-up” that were left blank.

14.   Mrs. Sharma says she first called MJ to cancel her order about 3 weeks after August 24, 2020, although MJ changed the subject and did not acknowledge her request. Mrs. Sharma says she called MJ several more times about the order, and MJ always assured her the blinds were coming soon. MJ says it does not have a record of Mrs. Sharma calling to cancel or complain. However, MJ does not directly deny that Mrs. Sharma reversed the $500 deposit credit card charge on October 14, 2020, and that she did not agree to the blinds’ installation on any date after that. While I find Mrs. Sharma’s CRT Dispute Response is itself notice of cancellation to MJ, the parties disagree about whether Mrs. Sharma gave cancellation notice to MJ on or before October 14, 2020. More on that below.

15.   The question is whether Mrs. Sharma must pay MJ the $3,490 balance for the blinds shown on the estimate and order. Although the pre-printed terms on the estimate and order documents say that no cancellations or returns were available, I find those terms do not determine whether a cancellation was possible here, for the following reasons.

16.   I note that this dispute is similar to the one described in the CRT decision Chauhan v. Best Look Blinds, 2019 BCCRT 1029. While that decision is not binding on me, I find its reasoning persuasive. Here, I find Mrs. Sharma was a “consumer”, and MJ was a “supplier”, as those words are defined in the Business Practices and Consumer Protection Act (BPCPA). I find that the parties’ agreement for the purchase and installation of blinds was a “future performance contract” under the BPCPA.

17.   BPCPA section 19 says that a future performance contract must include several pieces of information, including a detailed description of the goods or services to be supplied, itemized purchase prices, terms of payment, and other information. BPCPA section 23(2) requires a future performance contract to contain additional information, including the supply date, and the date on which the supply of the goods or services will be complete. I find neither the estimate nor the order includes the required supply date or completion date. Further, as noted above, the parties disagree about the estimated supply and completion dates. At most, I find MJ specified a weeks-long range of potential supply dates and completion dates that could be extended for an unspecified period due to manufacturer delays. I find the evidence before me fails to show the parties agreed to a sufficiently specific supply date or completion date in the circumstances. So, I find the parties’ agreement, as shown in the estimate and order documents, violated BPCPA section 23(2).

18.   BPCPA section 23(5) says a consumer may cancel a future performance contract within 1 year of the date they receive the contract if it does not include the information required by sections 19 and 23(2). I find this cancellation section of the BPCPA applies to the parties’ agreement, so it overrides the pre-printed terms in the estimate and order saying that MJ would not accept cancellations. So, I find Mrs. Sharma was entitled to cancel the contract.

19.   To cancel the contract, BPCPA section 54 says a consumer must give notice by any method that shows their intention to cancel the contract on a specific date. Mrs. Sharma says that on October 14, 2020, shortly before some planned, extended travel, she called MJ to cancel the order and she reversed the $500 deposit on her credit card. MJ suggests that Mrs. Sharma has simply failed to arrange an installation date. MJ says that it is normally responsive to customer complaints, but also says that it could not verify whether Mrs. Sharma called to complain or cancel without delving into the details of its phone records, which I find it did not do.

20.   On the evidence before me, I find it is more likely than not that MJ received notice of Mrs. Sharma’s cancellation request on October 14, 2020. Even if that was not the case, I find that MJ received written notice of Mrs. Sharma’s cancellation no later than November 21, 2020, the date of her CRT Dispute Response. So, while the parties disagree on the exact date, I find there is no dispute that Mrs. Sharma requested the contract’s cancellation within 1 year of the August 19, 2020 estimate. I find Mrs. Sharma has met the cancellation requirements in section 54 of the BPCPA.

21.   The parties did not discuss the BPCPA in their submissions. However, I found above that there is no dispute that Mrs. Sharma gave MJ written notice of cancellation within 1 year of Mrs. Sharma receiving the agreed estimate. The BPCPA’s relevant sections are mandatory, so I find it is not necessary for the parties to make submissions on the application of the BPCPA here.

22.   Section 27 of the BPCPA says that if a consumer cancels a contract, the supplier must refund to the consumer all money received, without deduction, within 15 days after the notice of cancellation has been given. I find that because Mrs. Sharma cancelled the parties’ future performance contract, MJ has no basis to charge Mrs. Sharma for the remaining balance under the contract. I dismiss MJ’s claim for $3,490.

CRT FEES AND EXPENSES

23.   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. MJ was unsuccessful in its claims and did not seek CRT dispute-related expenses. Mrs. Sharma was successful here, but paid no CRT fees. Mrs. Sharma claimed $131.91 she paid to a company to reset her email password. Mrs. Sharma does not clearly explain this expense. I find it is likely she used email to communicate with the CRT, and needed help resetting her password to maintain access to her email. I find this is a personal expense, and is not related to this CRT dispute. So, I make no orders for fee or expense reimbursements.

ORDER

24.   I dismiss MJ’s claims, and this dispute.