Date Issued: March 16, 2021

File: SC-2020-007206

Type: Small Claims

 

Civil Resolution Tribunal

Indexed as: Andruski v. Dr. Steven D. Stark, Podiatric Corporation, 2021 BCCRT 289

Between:

HEATHER ANDRUSKI

Applicant

And:

DR. STEVEN D. STARK, PODIATRIC CORPORATION

Respondent

REASONS FOR DECISION
Tribunal Member:	Rama Sood

INTRODUCTION

1.      This dispute is about custom orthotics. The applicant, Heather Andruski, purchased orthotics from the respondent, Dr. Steven D. Stark, Podiatric Corporation (Dr. Stark Corp). Ms. Andruski says that Dr. Stark Corp did not inform her of the total cost of the orthotics when she ordered them. She also says the orthotics fell apart within 2 months. Ms. Andruski seeks a refund of $740. While Ms. Andruski initially claimed $500 for pain and suffering, she is no longer pursuing this claim and I have not addressed it in my reasons below.

2.      Dr. Stark Corp says it informed Ms. Andruski about the orthotics’ cost when she ordered them. It also denies the orthotics were poorly made and says any damage was caused by how Ms. Andruski handled them.

3.      Ms. Andruski is self-represented. Dr. Stark Corp is represented by an employee.

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 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.

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.

ISSUES

8.      The issues in this dispute are:

a.    Whether Dr. Stark Corp informed Ms. Andruski about the total cost of the orthotics when she ordered them, and if not, the appropriate remedy,

b.    Whether the orthotics were poorly made and, if so, the appropriate remedy, and

c.    Whether Ms. Andruski must pay Dr. Stark Corp a missed appointment fee.

EVIDENCE AND ANALYSIS

9.      In a civil dispute like this, the applicant Ms. Andruski must prove her claims on a balance of probabilities. I have read all the parties’ submissions but refer only to the evidence and argument that I find relevant and necessary to provide context for my decision.

10.   Dr. Stark is a podiatrist and I infer he owns the named respondent, Dr. Stark Corp. On January 29, 2020 Dr. Stark assessed Ms. Andruski and agreed to provide her with new orthotics. Ms. Andruski signed a 1 page agreement entitled “A Word About Orthotics” (contract) during the appointment. The contract stated the following:

a.    Dr. Stark Corp charged a $150 casting fee and $450 for the orthotics. This included 1 complimentary office visit for adjustments during the first 6 months of receiving them,

b.    A non-refundable 20% to 25% deposit was payable when the patient’s feet were cast,

c.    There were no refunds since the orthotics were a prescription item,

d.    An office fee applied to all subsequent doctor’s appointments. The contract did not state the amount of the fee, and

e.    The patient acknowledged that they read, understood, and committed to the terms of the contract.

11.   After Dr. Stark casted Ms. Andruski’s feet, Ms. Andruski paid Dr. Stark Corp $140 for the podiatric biomechanical exam and $150 for the casting fee. Dr. Stark Corp provided Ms. Andruski with a separate receipt for each fee. Dr. Stark Corp’s receptionist, CK, stated that Ms. Andruski also paid a deposit although neither party provided a receipt. Ms. Andruski did not state that she paid a deposit and I find, based on the evidence before me, that no deposit was paid.

12.   Once the orthotics were ready, Ms. Andruski returned on February 12 to have them fitted and paid an additional $450 for the orthotics. CK stated that she heard Dr. Stark discuss the process of breaking in and fitting the orthotics with Ms. Andruski. However, Ms. Andruski denies she received any such instructions. I address this issue in further detail below.

13.   Ms. Andruski says she started using the orthotics and they were “falling apart” within 2 months. Ms. Andruski retuned to Dr. Stark Corp’s clinic on June 6 for the agreed complimentary office visit during which Dr. Stark trimmed the orthotics. Dr. Stark Corp denies that Ms. Andruski complained the orthotics were falling apart or about their condition. Ms. Andruski did not state whether she raised any issues about the orthotics’ condition during this visit.

14.   On July 29, Ms. Andruski brought the orthotics back to the clinic. She says the layers in the orthotics were separating. CK stated that during this visit, she could see the orthotics needed glue repair where the top cover met the shell. She says she handed the orthotics to Dr. Stark but Ms. Andruski grabbed them from him and left.

15.   Ms. Andruski says she left without having the orthotics assessed or repaired because Dr. Stark Corp tried to charge her a $50 fee for the visit which she refused to pay. She also says Dr. Stark did not say anything about the orthotics’ condition or offer to glue them.

16.   Ms. Andruski sent an August 8, 2020 letter to Dr. Stark Corp stating that the orthotics were faulty, poorly made, and falling apart. She also stated that she was not informed that the orthotics would cost $740 when she ordered them and requested a full refund.

17.   In an August 11, 2020 email, Dr. Stark Corp acknowledged Ms. Andruski’s complaint and provided Ms. Andruski with a copy of the contract she signed on January 29, 2020. Ms. Andruski responded that the orthotics lasted less than 6 months and that she left on July 29 because she refused to pay for an appointment to have a substandard product examined.

18.   Dr. Stark Corp admits that there was some separation at the shell, which is discussed in further detail below. However, it says the orthotics were properly made and denies they were faulty or falling apart within 7 months. Dr. Stark Corp also says any deterioration was due to Ms. Andruski’s failure to take proper care of them.

Did Dr. Stark Corp inform Ms. Andruski about the total cost of the orthotics when she ordered them?

19.   Ms. Andruski says Dr. Stark was present when the secretary, who I infer was CK, gave her the contract to sign during the first appointment. Ms. Andruski says she asked them what she was signing and that Dr. Stark and CK “indicated” the contract was her consent to proceed with making the orthotics.

20.   CK stated that on January 29 Ms. Andruski read, signed, and dated the contract. I find the contract was binding between the parties. Ms. Andruski did not deny that she signed the bottom of the contract. She also did not state that she did not have an opportunity to read the contract before signing it or did not understand it. I find the contract did not contain any technical terms and was clearly written in easy to read font.

21.    Based on the contract, I find Ms. Andruski agreed to pay Dr. Stark Corp a total of $600 for the orthotics and the complimentary follow up visit. I find the $140 biomechanical exam fee was not part of the contract but instead was for the initial assessment.

Were the orthotics durable?

22.   The Sale of Goods Act (SGA) governs the sale of goods to customers. Section 18(a) of the SGA says that if the buyer implies or says expressly that goods are being purchased for a particular purpose, there is an implied condition that the goods are reasonably fit for that purpose. Section 18(c) says that there is an implied condition that goods will be durable for a reasonable period of time having regard to the normal use to which the goods are put. These warranties and conditions apply whether or not the company providing the goods is the manufacturer.

23.   I find section 18 of the SGA applied to the sale and implied warranties on the orthotics that they would be reasonably fit for their purpose and durable for a reasonable period of time. I find the orthotics were reasonably fit for the intended purpose as orthotics when Ms. Andruski received them in February. I find Dr. Stark Corp did not breach the implied warranty under section 18(a) of the SGA.

24.   I also find that Dr. Stark Corp did not breach the implied warranty under section 18(c) either. My reasons are as follows.

25.   Ms. Andruski says the orthotics started falling apart within 2 months of receiving them. I find that Ms. Andruski did not mention any concerns about the orthotics’ condition until July 29, even though she attended an office visit on June 6. I find that more likely than not, Ms. Andruski would have informed Dr. Stark Corp during the June visit if the orthotics were in poor condition. And so, I find it is unlikely that the orthotics were falling apart within 2 months as Ms. Andruski alleges.

26.   Ms. Andruski submitted several photographs of the orthotics which included ones where the orthotics were folded by hand from toe to heel in varying degrees to almost in half. The photographs show that the amount of separation increased the more the orthotic was folded. The photographs did not show noticeable separation when the orthotics were not folded. Dr. Stark Corp says that the orthotics are not designed to be manipulated in this manner and doing so would inevitably show separation.

27.   I give limited weight to Ms. Andruski’s photographs. I find it is unlikely that a person wearing footwear with orthotics would, or even could, bend their feet into the positions the orthotics were shown in the photographs.

28.   Dr. Stark Corp denies there was visible damage to the forefoot posting layers, shell, or foam during either the June or the July visits. Dr. Stark Corp says if there had been damage, it would have returned the orthotics to the lab and a new pair would have been milled at no cost to the patient.

29.   Dr. Stark Corp admits separation at the junction of the forefoot and the shell but says the orthotics are still fully functional, supportive, and usable. It says the most important element of the orthotic was the forefoot posting layers, which were intact and undamaged. It also says the top cover was securely adhered and the shell with cut-out was in perfect condition. It also says the black high density foam was without deterioration.

30.   While I accept there was some separation in the orthotics, I find an analysis and opinion about its effect on the durability of Ms. Andruski’s orthotics’ is necessary to draw any conclusions. Where the subject matter is technical and outside an ordinary person’s knowledge and experience, it requires expert opinion evidence (see Bergen v. Guliker, 2015 BCCA 283).

31.   It is Ms. Andruski who must prove her claim on a balance of probabilities. I find she did not meet her burden of proof since she did not provide expert evidence, such as from an independent podiatrist or orthotics manufacturer, that the orthotics were defective or not durable.

32.   Ms. Andruski submitted an excerpt from a website that she says was Dr. Stark’s reply in 2012 to a question about how long orthotics last. According to the excerpt, Dr. Stark stated that the orthotics shell/arch should last for approximately 3 years with normal wear and tear, and the forefoot post should last 18 months to 2 years. Dr. Stark Corp did not dispute this excerpt and so I accept that Dr. Stark made these statements online. However, since Ms. Andruski did not prove that separation showed that the orthotics were not durable, I find this excerpt is not helpful.

33.   Dr. Stark Corp says that Ms. Andruski misused the orthotics. It says that Ms. Andruski used the orthotics in multiple pairs of shoes and that she repeatedly removed them from her footwear. It says it cautioned Ms. Andruski on February 12 that she must keep the orthotics in only 1 pair of shoes. Ms. Andruski denies Dr. Stark Corp provided these instructions.

34.   Dr. Stark Corp submitted several documents about orthotics care, but I give them no weight since there is no evidence it gave a copy of these documents to Ms. Andruski.

35.   Whether or not Ms. Andruski mishandled the orthotics goes to the issue of whether she contributed to their degradation. Since Ms. Andruski did not prove the orthotics were not durable, I find the manner in which she handled the orthotics is irrelevant for the purposes of this dispute.

36.   Ms. Andruski did not state the orthotics were unusable. She compared their condition to a chipped plate that she would not want to continue using even though it was still functional. I find the 2 scenarios are not comparable and that, unlike a plate, the purpose of the orthotics is not aesthetic but purely functional. In addition, orthotics are worn in footwear and so unlikely to be seen.

37.   Since Ms. Andruski has not proved that the orthotics’ separation affected its function, I dismiss her claim for a full refund.

Missed appointment

38.   Dr. Stark Corp says that Ms. Andruski should pay a $75 missed appointment fee for the July 29 appointment. Dr. Stark Corp did not explain why it seeks $75 even though it stated in its submissions that the fee for the July 29 appointment was $50. I infer this was a typographical error and that Dr. Stark seeks only $50.

39.   Since Dr. Stark Corp did not file a counterclaim, I find it is asking for a setoff against any amount it owes to Ms. Andruski (see Dhothar v. Atwal, 2009 BCSC 1203). Since I have dismissed Ms. Andruski’s claim, I find it is unnecessary for me to decide this issue.

CRT FEES AND DISPUTE-RELATED EXPENSES

40.   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. Since Ms. Andruski was not successful in this dispute, I find she is not entitled to reimbursement of the CRT fees. Dr. Stark Corp did not claim dispute-related expenses.

ORDER

41.   I dismiss Ms. Andruski’s claims and this dispute.