Date Issued: July 28, 2021

File: SC-2021-001642

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Cashco Financial Inc. v. Santos, 2021 BCCRT 823

Between:

CASHCO FINANCIAL INC.

Applicant

And:

LAWRENCE SANTOS

Respondent

INTRODUCTION

1.      This dispute is about a loan. The applicant, Cashco Financial Inc. (Cashco) says that the respondent, Lawrence Santos, borrowed $2,203.06 and he has made partial repayments of $508.80. Cashco says the loan balance is due and it claims $1,694.26.

2.      Mr. Santos admits borrowing money from Cashco but he disputes the amount owed. Mr. Santos says the loan principal was $2,159.98 and that he has repaid $2,006.09.

3.      Cashco is represented by an employee. Mr. Santos is self-represented.

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.

Jurisdiction

8.      Under section 10 of the CRTA, the CRT must refuse to resolve a claim that it considers to be outside the CRT’s jurisdiction. A dispute that involves some issues that are outside the CRT’s jurisdiction may be amended to remove those issues.

9.      Cashco says that this loan was made under the laws of Alberta and, since Cashco has provided an Alberta address for service, I infer that Cashco operates out of Alberta. Based on this, I have considered whether this dispute is within the CRT’s jurisdiction. I find that the information included in the parties’ application for dispute resolution and Dispute Response is sufficient to determine whether the CRT has jurisdiction to resolve this dispute without requiring further submissions from the parties.

10.   In Club Resorts Ltd. v. Van Breda, 2012 SCC 17, the Supreme Court of Canada set out the principles for assuming jurisdiction over a dispute and said if a recognized presumptive connecting factor applies, a court (or tribunal) should assume it has jurisdiction, unless a party challenges this presumption. This is referred to as a real and substantial connection. One presumptive connecting factor is when the responding party resides in the jurisdiction (here British Columbia). In this dispute, Mr. Santos provided a British Columbia service address so I infer that he resides here. As such, in the absence of an objection to the CRT exercising jurisdiction in this dispute, I am satisfied that this claim has a real and substantial connection to British Columbia, giving the CRT jurisdiction.

ISSUE

11.   The issue is how much, if any, does Mr. Santos owe Cashco under the loan agreement.

EVIDENCE AND ANALYSIS

12.   In a civil proceeding like this one, Cashco, as the applicant, must prove its claim on a balance of probabilities. Cashco has not provided any evidence, though it had the opportunity to do so. Further, Mr. Santos has not provided any submissions other than those in his Dispute Response filed at the outset of this proceeding, though he had the opportunity to do so. I have read all of the parties’ submissions and evidence but refer only to the evidence and argument that I find relevant to provide context for my decision.

13.   It is undisputed that Cashco loaned Mr. Santos money. However, Cashco did not provide a copy of the loan agreement. Cashco says it loaned Mr. Santos $2,203.06 on November 8, 2019, with payment due on October 9, 2020. Since Mr. Santos did not dispute the debt’s due date, I accept that repayment was due on October 9, 2020. However, Mr. Santos says the loan’s principal was $2,159.98, not $2,203.06. In the absence of supporting evidence, I find both parties’ submissions about the loan principle to be equally likely to be accurate. So, I find that Cashco has failed to satisfy his burden of proving the amount owed and I accept as accurate the debt principle acknowledged by Mr. Santos. So, I find that the debt principal was $2,159.98.

14.   Cashco says that Mr. Santos provided “delinquent payments” of $506.80. I infer that this refers to alleged loan repayments made by Mr. Santos after the due date. Cashco says Mr. Santos owes a balance of $1,694.26.

15.   In contrast, Mr. Santos says he has repaid $2,006.09 in 16 payments from November 2019 to December 2020. Mr. Santos provided an itemized list of these alleged payments. Since Mr. Santos provided an itemized payment history and Cashco did not describe the payment amounts or the payment dates, I find that Mr. Santo’s submissions about his loan repayments are more likely to be accurate than Cashco’s. So, I accept Mr. Santo’s submission that he has repaid Cashco $2,006.09. Based on the $2,158.98 debt principal, I find that Mr. Santos owes Cashco an outstanding balance of $152.89.

Interest, CRT fee and dispute-related fees

16.   Cashco claims that Mr. Santos agreed to pay 48.99% annual interest under the contract. However, Cashco has not provided a copy of the loan agreement, or any other supporting evidence, showing that Mr. Santos agreed to pay interest under the loan. As such, I find that Cashco has failed to prove that it is entitled to contractual interest and I dismiss this claim.

17.   However, the Court Order Interest Act (COIA) applies to the CRT where there is no agreement about interest as I have found here. I find that Cashco is entitled to pre-judgment COIA interest on the $152.89 debt, from the October 9, 2020 due date, to the date of this decision. This equals $0.55.

18.   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 Cashco was partially successful, I find that it is entitled to reimbursement of one-half of its CRT fees, being $62.50. Neither party claimed reimbursement of dispute-related expenses.

ORDERS

19.   Within 30 days of the date of this order, I order Mr. Santos to pay Cashco a total of $215.94, broken down as follows:

a.    $152.89 in debt,

b.    $0.55 in pre-judgment COIA interest, and

c.    $62.50 in CRT fees.

20.   Cashco is entitled to post-judgment interest, as applicable.

21.   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 in effect until 90 days after June 30, 2021, which is the date of the end of the state of emergency declared on March 18, 2020, 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.

22.   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.