Date Issued: May 6, 2021

File: SC-2020-008914

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Pacheco v. Fowler, 2021 BCCRT 481

Between:

ROBERT PACHECO

Applicant

And:

JOSEPH FOWLER

Respondent

INTRODUCTION

1.      The parties are next-door neighbours and this dispute is over payment for a replacement fence. The applicant, Robert Pacheco, says the respondent, Joseph Fowler, verbally agreed to replace the parties’ shared fence and equally split the cost. Mr. Pacheco says Mr. Fowler later refused to pay and so Mr. Pacheco claims $1,674.19. Mr. Pacheco also seeks an order that Mr. Fowler remove a structure he attached to the replacement fence.

2.      Mr. Fowler denies ever agreeing to pay ½ the fence replacement cost. Mr. Fowler says he repeatedly refused and told Mr. Pacheco he could not afford it, but Mr. Pacheco chose to replace the fence anyway.

3.      The parties are each self-represented. For the reasons that follow, I dismiss Mr. Pacheco’s claim for payment of ½ the fence replacement cost, and I refuse to resolve Mr. Pacheco’s claim for removal of Mr. Fowler’s attached structure.

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). 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 parties to a dispute that will likely continue after the dispute resolution 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. In some respects, both parties of this dispute call into question the credibility, or truthfulness, of the other. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me. I note the decision Yas v. Pope, 2018 BCSC 282, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find I can fairly hear this dispute through written submissions.

6.      Under section 42 of the CRTA, 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, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate. In particular, section 118 allows for an order for recovery of personal property or specific performance of an agreement, but neither of those situations apply here as further discussed below.

8.      As referenced above, one of Mr. Pacheco’s requested remedies is that I order Mr. Fowler to remove a 2 x 4 structure attached to the replacement fence, which Mr. Pacheco says is causing drainage issues on his property. While Mr. Pacheco did not frame it this way, I find this is a separate claim from Mr. Pacheco’s claim for payment of ½ the replacement fence’s costs. In other words, I find the structure’s removal is not simply a remedy related to the claim for payment. This matters because I find I have no jurisdiction to order the structure’s removal, and so I refuse to resolve that claim under section 11 of the CRTA. I say this because ordering the structure’s removal is a form of injunctive relief, an order to do something, which I find is not permitted under section 118 of the CRTA as the parties had no prior agreement for its removal.

9.      Mr. Fowler submitted late evidence, namely 2 photos of a bobcat in a yard, in front of fence. I do not allow this late evidence. While Mr. Pacheco had an opportunity to review and respond to it, I find the evidence irrelevant to the issue of whether Mr. Fowler agreed to pay ½ the fence replacement cost.

Additional claims and remedies

10.   In his submissions, Mr. Pacheco appears to add a number of additional claims and remedies. These include an award for “cost of land that has been lost” due to Mr. Fowler allegedly moving the property line, soil replacement, moving a structure in the yard, yard levelling, and expenses to have the land surveyed. The parties both made submissions about Mr. Fowler’s dog being kept in the fenced yard and about snow removal. Mr. Fowler in his submissions asks for an order that the replacement fence be removed from his yard. Yet, Mr. Fowler did not file a counterclaim. I decline to consider any additional claims or remedies. First, I have no jurisdiction to determine property boundaries, as the Property Law Act says this is for the court. Second, I have no jurisdiction to grant injunctive relief beyond what is provided in section 118 of the CRTA, which does not allow me to order either party to do the things the other requests, in these circumstances. Third, I find it would be inappropriate at this late stage to widely expand the dispute beyond the narrow issue set out in the Dispute Notice, namely Mr. Fowler’s obligation to pay ½ for a replacement fence.

ISSUE

11.   The issue is whether Mr. Fowler agreed to pay ½ the cost of a replacement fence.

EVIDENCE AND ANALYSIS

12.   In a civil claim like this one, the applicant Mr. Pacheco bears the burden of proving its claim, on a balance of probabilities. While I have reviewed the parties’ submitted evidence and arguments, I have only referenced below what I find is necessary to give context to my decision.

13.   In summer 2018, Mr. Pacheco rebuilt a different fence with another neighbour. At some point in the 18 months after that, in a discussion over the parties’ shared fence Mr. Pacheco asked Mr. Fowler if he was interested in replacing their shared fence. At that time, Mr. Fowler said he could not afford to replace the fence. The parties did not discuss the fence again until at least 2020. None of this is disputed.

14.   Based on photos, I find the parties’ shared fence was at least in some areas likely in need of repair or replacement, although I cannot conclude there was any urgency to it by 2020. In any event, that is not determinative of Mr. Fowler’s obligation to pay for the fence’s replacement cost. I am not aware of any legal basis to require Mr. Fowler to contribute to the fence’s replacement cost if he did not agree. Mr. Pacheco’s option was to build a fence on his side of the property line and bear the entire expense, which would also allow him to build the fence without Mr. Fowler’s agreement about things like the fence’s material or colour.

15.   So, at issue is whether Mr. Fowler agreed to share the cost, which Mr. Fowler denies. As discussed further below, Mr. Pacheco ultimately dismantled the parties’ shared fence, bought the necessary replacement materials and built a new replacement fence himself. It is undisputed Mr. Fowler was aware of the fence’s replacement as Mr. Pacheco’s work progressed.

16.   It is also undisputed there was no written contract about the fence’s replacement or the parties equally sharing its expense. A verbal contract is enforceable like a written contract, but it can be harder to prove. I find nothing turns on Mr. Fowler’s father TF having a general discussion in 2018 with Mr. Pacheco, about replacing the fence. There is no evidence to support a conclusion that TF actually agreed to contribute to the fence’s replacement cost or that he was authorized as Mr. Fowler’s agent to bind Mr. Fowler to paying half the cost. Further, Mr. Pacheco does not squarely rely on the 2018 conversation as the basis for his position Mr. Fowler agreed to pay half. Rather, he relies on an alleged July 2020 conversation with Mr. Fowler, discussed below.

17.   For a valid contract to exist, the parties must have a “meeting of the minds”. This means that the parties must agree on all essential terms and those terms must be clear enough to give a reasonable degree of certainty. The parties must both intend to be bound by these essential terms. There must also be an offer by one party that is accepted by the other, plus valuable “consideration”. “Consideration” means payment of money or something else of value. (See discussion on contract formation in Redfern Resources Ltd. (Re), 2012 BCCA 189 and Fairchild Developments Ltd. v. 575476 B.C. Ltd., 2020 BCCA 123.)

18.   Mr. Pacheco says that on July 29, 2020 Mr. Fowler verbally agreed to split the cost of the fence that straddled their properties. In particular, Mr. Pacheco says during construction of the opposite fence, he and Mr. Fowler discussed again replacing their shared fence. Mr. Pacheco says Mr. Fowler said he was not sure he could afford it. Mr. Pacheco submits he told Mr. Fowler that he (Mr. Pacheco) could build it and that Mr. Fowler could repay him later. Mr. Pacheco says he told Mr. Fowler to think about it and that he could let him know later. Mr. Fowler agrees he told Mr. Pacheco he could not afford to pay for a replacement fence.

19.   Mr. Pacheco says a couple days later he saw Mr. Fowler observing the other neighbour’s completed fence and so Mr. Pacheco asked Mr. Fowler “if he wanted the same thing on his side.” Mr. Pacheco submits Mr. Fowler responded, “That it would be nice” (reproduced as written). Mr. Pacheco submits he told Mr. Fowler he did not have enough wood to do Mr. Fowler’s side at the time but Mr. Pacheco could go mill more wood. Mr. Pacheco says Mr. Fowler responded, “OK”. Mr. Pacheco submits that Mr. Fowler’s “That it would be nice” and “OK” statements “presupposes his interest and agreement in replacing the fence”. I disagree.

20.   Next, both parties have differing versions about why Mr. Fowler hauled away old fencing materials and a cut-down tree. Mr. Fowler says Mr. Pacheco asked for a favour and he did it, whereas Mr. Pacheco and a submitted statement from his mother say it was towards a discount from his share of the fence cost. I cannot prefer Mr. Pacheco’s version over Mr. Fowler’s, and Mr. Pacheco has the burden of proof.

21.   I acknowledge Mr. Pacheco’s mother’s statement that she overhead Mr. Fowler agree to cut down the tree for a $25 discount “off the price of the fence”. I place little weight on this statement as I find Mr. Pacheco’s mother is not a disinterested party, given her relationship with Mr. Pacheco. As noted, Mr. Fowler denies agreeing to pay for the replacement fence and says he wanted to cut the tree down because its droppings were filling his eaves.

22.   Notably, Mr. Fowler submits Mr. Pacheco asked him 3 times in 2020 about building a replacement fence and that Mr. Fowler always said no, because he could not afford it. Mr. Fowler relies on witness statements from his tenant DM, his wife MF, his father TF, and from his mother AF.

23.   In DM’s undated statement, he wrote he lives in ½ of Mr. Fowler’s duplex. DM stated he overhead a conversation between Mr. Fowler and “the neighbour who lives on the other side of him”, who I infer is Mr. Pacheco. DM wrote they were discussing the fence between their 2 yards, and DM heard the neighbour ask Mr. Fowler if he would do a shared fence. DM wrote Mr. Fowler “said NO” (capitals in original). I place more weight on DM’s statement because he is more neutral than the parties or their spouses or parents.

24.   Next, I place no weight on MF’s statement because while her account is consistent with Mr. Fowler’s she is not disinterested and does not expressly say she overhead the parties’ verbal conversation, particularly the alleged one from July 2020.

25.   In TF’s January 14, 2021 statement submitted by Mr. Fowler, TF said that Mr. Pacheco asked him about the fence replacement in July 2019, when TF told him to discuss it with Mr. Fowler. TF said that Mr. Pacheco then approached Mr. Fowler and Mr. Fowler told him he was not interested and was content with the existing fence. AF’s statement is consistent with this, although AF acknowledges she did not hear Mr. Pacheco’s part of the conversation, just that Mr. Fowler loudly said he did not want a new fence and could not afford it. TF added that later, in August 2020, TF said that Mr. Pacheco had built about 60% of the replacement fence when TF was visiting Mr. Fowler, and that Mr. Pacheco asked him if Mr. Fowler was going to pay for half the fence. TF says he told Mr. Pacheco to ask Mr. Fowler about it. As noted, I place less weight on TF’s statement because he is Mr. Fowler’s father and not disinterested. However, his statement is consistent with DM’s and Mr. Fowler’s evidence.

26.   I find the evidence shows the parties clearly discussed the fence’s replacement. However, in the circumstances I find there is insufficient evidence to prove Mr. Fowler ever agreed to financially contribute to its replacement cost. Mr. Pacheco’s own evidence does not establish that the parties discussed cost-sharing on July 29, 2020, only that Mr. Fowler acknowledged a new fence would be nice. While Mr. Fowler does not admit that aspect of the conversation, I find Mr. Pacheco’s own evidence does not show he ever agreed to pay ½ the fence costs. I find there was no meeting of the minds and am unable to infer Mr. Fowler’s agreement as Mr. Pacheco suggests. DM’s statement in particular also supports Mr. Fowler’s version of events.

27.   Mr. Pacheco further submits he had other exchanges about the replacement fence construction, with Mr. Fowler moving things out of the way on his side of the workspace. Mr. Fowler says he moved things because Mr. Pacheco had knocked things over from his side of the fence. I am unable to find Mr. Fowler’s moving his things away from the fence shows he agreed to pay ½ its replacement cost.

28.   I note Mr. Pacheco’s submission that Mr. Fowler is responsible for 25% of the cost of his submitted receipts for fencing materials. He says this is because he bought fencing materials for both the parties’ shared fence and the rebuilt fence he separately shared with another neighbour. Most of these receipts pre-date the July 29, 2020 conversation Mr. Pacheco submits was when Mr. Fowler agreed to pay. I find the receipts show it was more likely than not that Mr. Pacheco proceeded to build the fence because he wanted a new fence, and afterwards sought Mr. Fowler’s agreement to financially contribute. However, evidence before me, including the receipts, does not show Mr. Fowler’s ever agreed to pay ½ the fence’s replacement cost. I also note Mr. Pacheco’s initial bill to Mr. Fowler was that he owed $873.80, not the $1,674.19 claimed in this dispute.

29.   In summary, I find Mr. Pacheco has not proved Mr. Fowler ever agreed to pay ½ of the fence replacement cost, and so I dismiss that claim.

30.   Under section 49 of the CRTA and the CRT’s rules, a successful party is generally entitled to the recovery of their CRT fees and reasonable dispute-related expenses. As Mr. Pacheco was unsuccessful, I find he is not entitled to reimbursement of paid CRT fees or dispute-related expenses. Mr. Fowler did not pay CRT fees and no dispute-related expenses are claimed.

ORDERS

31.   I dismiss Mr. Pacheco’s claim for payment of ½ the fence replacement cost. I refuse to resolve Mr. Pacheco’s claim for an order that Mr. Fowler remove a structure attached to the replacement fence, under section 11 of the CRTA because I lack jurisdiction to grant the requested injunctive relief.