Date Issued: October 13, 2021

File: SC-2021-002800

Type: Small Claims

Civil Resolution Tribunal

Indexed as: 2 Burley Men Moving Ltd. v. Nash, 2021 BCCRT 1086

Between:

2 BURLEY MEN MOVING LTD.

Applicant

And:

AMELIA NASH

Respondent

INTRODUCTION

1.      This dispute is about residential moving services. The respondent, Amelia Nash, hired the applicant, 2 Burley Men Moving Ltd. (Burley), to move her personal belongings between 2 cities in BC. Burley claims payment of its $2,274.87 invoice, which Ms. Nash has refused to pay. Burley also says if offered to pay Ms. Nash $462 for the property damage, but Ms. Nash refused.

2.      Ms. Nash says Burley damaged her belongings and did not complete the move. Ms. Nash also says the repair and replacement costs for her damaged items exceeds Burley’s invoice.

3.      Burley is represented by an employee. Ms. Nash 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). 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. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find I can fairly hear this dispute based on the submitted evidence and 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 CRT considers appropriate.

ISSUES

8.      The issues in this dispute are:

a.    To what extent is Ms. Nash entitled to a set-off against Burley’s moving services invoice for proven property damage or incomplete work?

b.    To what extent has Burley proven it is entitled to payment of its moving services invoice?

EVIDENCE AND ANALYSIS

9.      In a civil claim like this one, as the applicant Burley has the burden of proving its claim, on a balance of probabilities (meaning “more likely than not”). I have only referenced below what I find is necessary to give context to my decision.

10.   On February 11, 2021, Ms. Nash contacted Burley about her requested move for March 31, 2021. According to Burley’s submitted 1-page “Client Disclaimer” that appears to also be its waybill and invoice, Burley’s move was “8 to 8”, plus 1.75 hours “extra travel outbound” and 1.5 hours “extra travel inbound”, for a total of 15.75 hours. The document has the handwritten “per hour” rate for 3 men scratched out, and then there is a $130 per hour rate for 2 men below that, plus fuel, travel time, and tax. The totals for fuel and tax are scratched out, but there is a “$2,274.87 Not Paid” handwritten on the bottom. There is no customer signature on this page.

11.   Burley also submitted an “Appointment Confirmation - Terms and Conditions” printout (TOC) which it says was emailed to Ms. Nash on February 11, 2021 and “confirmed” on March 29, 2021. In the pre-printed TOC, it says unless booked as the first move of the day, move time is an approximation only. Under the heading “Coverage”, it says Burley’s rates include a “basic coverage of $0.60 per pound per article at no charge. Coverage is based upon the items fair and reasonable age, value and condition at the time of move.” The clause does not expressly mention the word “damage” nor does it expressly limit Burley’s liability for damage.

12.   However, under a separate heading titled “Protection Plan Coverage and Payment”, it says any damage or loss sustained during the move and identified “at that time” does not release the customer from their obligation to pay for Burley’s moving services at time of completion. It also says Burley reserves the right to ask for and receive payment in full before the move is completed. Finally, under the heading “Submitting a Claim”, it says that there is a $50 “deductible charge/payment” to Burley that “applies to all claims”, which must be submitted in writing within 30 days of the move. There is no suggestion there is any third-party insurance policy in effect, and so I infer Burley argues that under the TOC even if it damaged the customer’s property it was entitled to receive a $50 “deductible” from any customer claiming compensation for that damage. At the end of the document there are added typed notes from Burley staff, noting that it was $170 per hour for 3 men, the 3.25 hours additional travel time, and a $125 fuel fee.

13.   There is no signature on the submitted TOC. Burley also did not submit a copy of its February 11, 2021 email to Ms. Nash or any communication it had with Ms. Nash on March 29, 2021. Parties are told during the CRT’s process to submit all relevant evidence in support of their position. I also note Burley is a relatively sophisticated litigant, in that it has appeared before the CRT multiple times as set out in published decisions. Given the above, I am not prepared to accept Ms. Nash ever agreed to the TOC, and in particular the alleged $0.60 per pound limit for damage, the $50 deductible, or the 30-day time limit for making any claim to Burley.

14.   I turn then to the property damage at issue. The parties’ evidence show this was Ms. Nash’s Samsung fridge, a love seat, and a desk, although I note Burley’s handwritten notes indicate a computer chair was also damaged.

15.   Ms. Nash did not file a counterclaim. As noted above, she instead essentially claims a set-off against Burley’s invoice for the value of her damage. I find her property damage sufficiently connected to Burley’s moving services invoice such that I can consider the set-off claim. However, as the party asserting the set-off, Ms. Nash must prove it, including the value of the damaged property.

16.   Ms. Nash’s submitted close-up photos show a dented and gouged fridge, which I accept was damaged by Burley as the damage is undisputed. The dents and scuffs appear mostly minor and superficial. While Ms. Nash says the fridge was less than a year old, she submitted no evidence of its age, overall condition, or value, such as a purchase receipt.

17.   Ms. Nash also submitted close-up photos of a damaged loveseat and desk, where the wood on each is lifted off at one end. Again, she submitted no evidence of their age, overall condition, or value.

18.   Next, Ms. Nash submitted photos of various items Burley left behind, leaving Ms. Nash to otherwise deal with them. These items included a box, a small coffee table, 4 plastic totes, a few shelves, a boxed TV and receiver, a small wall painting, a speaker “grate”, a wooden chair, and a blow-up mattress. Based on Burley’s submitted handwritten notes, it acknowledges it left some of these items behind.

19.   The difficulty for Ms. Nash is that, as noted, she submitted no supporting evidence of the value of the damaged items. While she submitted a May 11, 2021 fridge repair receipt, that receipt does not address the fridge’s value nor does it say its age. While the May 11, 2021 repair receipt noted the fridge’s gouges and scratches, it does not say they left the fridge non-functioning. The receipt only said the fridge cabinet was not a replaceable part. The receipt does not say the dents or gouges were the cause of the fridge’s need for repair. Ms. Nash admits the fridge “fundamentally works”. While Ms. Nash says the fridge alone is worth more than double Burley’s claim, again, she submitted no evidence about its value.

20.   Similarly, Ms. Nash submitted no evidence about her costs related to the left-behind items. She submitted a statement that her landlord granted her additional time to move out in order to clean, but there is no evidence that this was at any additional cost to her. She also did not submit any supporting evidence that she incurred any additional cleaning costs. Ms. Nash also says moving the left-behind items took nights of “extra moving after work, on our time”, which I infer refers to Ms. Nash’s spouse as well as her. Ms. Nash’s spouse is not a party to this dispute. However, Ms. Nash submitted no evidence in support or any additional details about the amount of time.

21.   So, I am left with Burley having admittedly gouged and dented the fridge. I find it also damaged the wood on the desk and the loveseat base. I also find Burley left behind various items that Ms. Nash had to spend some amount of personal time moving rather than Burley adding them to its truck.

22.   On a judgment basis, I find the $462 Burley offered is a reasonable sum to cover the damage, given Ms. Nash provided no supporting evidence about value. I allow an additional set-off of $50, to cover Ms. Nash’s time in having to move additional belongings Burley left behind. This combined set-off totals $512.

23.   I turn then to Burley’s invoice. Ms. Nash argues that Burley’s 12-hour quote based on 3 men should have ultimately been much less because she packed for them and because another company quoted at 7 hours. I find another company’s quote irrelevant given what Ms. Nash agreed to, and in any event, Ms. Nash did not submit any other quote.

24.   However, the parties agree Burley originally quoted $170 per hour for 3 men. There is no evidence that Ms. Nash agreed to pay $130 per hour for only 2 men. So, I find that Burley can only charge Ms. Nash $113.20 per hour for the 2 men it sent (2/3 of the agreed $170 rate for 3 men). This equals $1,782.90 for the 15.75 hours including travel time. Together with the undisputed $125 fuel fee and GST, this brings Burley’s allowed invoice total to $2,098.69. After deducting the $512, this leaves $1,586.69. I order Ms. Nash to pay Burley $1,586.69.

25.   The Court Order Interest Act (COIA) applies to the CRT. I find Ms. Nash must pay pre-judgment COIA interest on the $1,586.69, from March 31, 2021 to the date of this decision. This interest equals $3.84.

26.   Under section 49 of the CRTA and the CRT’s rules, a successful party is generally entitled to reimbursement of their CRT fees and reasonable dispute-related expenses. Burley was largely successful so I find Ms. Nash must reimburse it the $175 paid in CRT fees. Neither party claimed dispute-related expenses.

ORDERS

27.   Within 21 days of this decision, I order Ms. Nash to pay Burley a total of $1,765.53, broken down as follows:

c.    $1,586.69 in debt,

d.    $3.84 in pre-judgment interest under the COIA, and

e.    $175 in CRT fees.

28.   Burley is entitled to post-judgment interest, as applicable.

29.   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.

30.   Under section 58.1 of the CRTA, a validated copy of the CRT’s order can be enforced through the Provincial Court of BC. 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 BC.