Date Issued: November 16, 2021

File: SC-2021-004328

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Bolton (dba Victoria Kids Out and About Out of School Care v. Kelly),
2021 BCCRT 1213

Between:

JANINE BOLTON (Doing Business As VICTORIA KIDS OUT AND ABOUT OUT OF SCHOOL CARE)

Applicant

And:

AMANDA KELLY

Respondent

INTRODUCTION

1.    This dispute is about payment of daycare fees. The applicant daycare provider is Janine Bolton (Doing Business As Victoria Kids Out and About Out of School Care). The respondent client is Amanda Kelly.

2.    The parties had a barter agreement where the respondent provided the applicant with once-monthly free cleaning services in exchange for that month’s daycare services. The applicant says because the respondent missed a scheduled cleaning, the applicant is entitled to $112.50 as payment for May 2021 daycare fees plus a $600 late payment fee under the parties’ contract.

3.    The respondent says she quit cleaning for the applicant and says she was not aware of the applicant’s invoice. The respondent says she understood fees were due at the end of the month, and so she does not owe any late payment fee. The respondent also says she paid the May 2021 fee, but the applicant returned it on the basis the respondent allegedly owed more.

4.    The parties are each self-represented.

JURISDICTION AND PROCEDURE

5.    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.

6.    CRTA section 39 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.

7.    Under CRTA section 42, 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.

8.    Where permitted CRTA section 118, 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.

9.    In her submissions the respondent says the applicant has caused the respondent to incur business losses due to stress and “bashing online”. The respondent did not file a counterclaim and the CRT has no jurisdiction over defamation. I make no findings about the alleged defamation or “bashing”.

10. Finally, the respondent submitted late evidence, which was a single text exchange where one unidentified individual asked another to “pay your bills deadbeat”. I do not find this evidence relevant to this dispute and so I do not admit it into evidence. Nothing turns on it in any event.

ISSUES

11. The issues are:

a.    Does the respondent owe the applicant the claimed $112.50 for May 2021 daycare fees?

b.    Does the respondent owe the applicant a $600 late payment fee under the parties’ contract?

EVIDENCE AND ANALYSIS

12. In a civil claim like this one, the applicant has the burden of proving her claims 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.

13. The background facts are undisputed. In November 2020, the respondent hired the applicant to care for her child. As noted, the parties agreed that in lieu of fees, the respondent would clean the applicant’s house once a month for free. It appears the respondent also cleaned the applicant’s house on other occasions for a fee, but I find nothing turns on that.

14. The applicant submitted a 2-page contract. It sets out various fees depending on how often the child attends the daycare. The document does not show what fees specifically applied to the respondent’s child but some of the parties’ text exchanges indicate it was $45 a day. The contract also says the respondent understood and agreed to abide by all the policies in the “parent handbook”. More on the handbook below.

15. I will first address the applicant’s $112.50 claim for May 2021 fees. I have no documentation before me to establish that this was the applicable monthly rate or that it reflected the respondent’s child’s attendance in May. However, the respondent submits she “paid the $100 something, and they RETURNED it” because the applicant wanted more money (capitals in original). The respondent did not submit any evidence of when she attempted payment or of what exact amount she tried to pay. On balance, I accept the respondent tried to pay the applicant the May 2021 fees, because the applicant did not deny it in her reply submission.

16. Given the above, I find it likely the applicable fee for May 2021 was the claimed $112.50. Based on the respondent’s submission and the evidence before me, I find she has not in fact paid this amount though as noted she tried to pay it at some point. I find the respondent owes the applicant $112.50 for May 2021 daycare fees. This is consistent with the fact that the respondent undisputedly did not provide a free cleaning in the applicant’s home in May 2021 and yet sent her child to daycare that month.

17. I turn then to the $600 claim for a late payment fee. The “parent handbook”, which I find is part of the parties’ contract, says fees are due on the 1^st of the month. It also says that if a payment is late, there is a $20 per day fee added to the outstanding balance.

18. The parties’ text messages show the respondent was scheduled to clean the applicant’s home on May 27, 2021 but did not show up. The applicant relies on that “no-show” to argue the respondent owes the claimed $600 under the contract ($20 per day late fee) because the respondent had not paid her May daycare fees by May 1, 2021. I do not allow this $600 claim for the following reasons.

19. The applicant says when the respondent chose to not attend for the scheduled monthly clean, “that automatically made her late on payment which also includes the late fees.” The applicant says the respondent breached the parties’ agreement by choosing not to clean the applicant’s home and by failing to pay the fees as required. I disagree.

20. I find the applicant agreed to modify the daycare’s payment due-date policy. In particular, the applicant chose to allow the respondent to clean her home in lieu of paying daycare fees. The evidence shows the chosen free-cleaning date varied. For at least April and May 2021, the parties determined the free-cleaning date after the 1^st of the month. The applicant also submits she was “forgiving on late payments”. I find it is not open to the applicant to rely on the written contract’s terms unilaterally and retroactively when the applicant had later agreed to vary those contractual payment terms.

21. I further find the respondent’s undisputed “no show” for her scheduled cleaning on May 27, 2021 does not alter my conclusion. There is no evidence the parties ever agreed that if the respondent did not show up for a scheduled cleaning that she would retroactively be subject to the $20 per day late fee.

22. Finally, the applicant also appears to argue that because the respondent did not advise the applicant’s assistant before May 1 that she wanted to clean in May in lieu of May fees, that the respondent understood she would be liable for a late fee. I find the parties’ text messages in evidence do not support this conclusion. In any event, I find the applicant clearly agreed to have the respondent clean on May 27 and there is no suggestion had the respondent done so that the applicant would have imposed any late fee. I find the applicant is not entitled to any late fee.

23. In summary, I find the applicant is entitled to payment of the $112.50 for the May 2021 daycare fees. I dismiss the applicant’s $600 claim for a late fee.

24. The Court Order Interest Act (COIA) applies to the CRT. I find the applicant is entitled to pre-judgment COIA interest on the $112.50, calculated from the missed cleaning date of May 27, 2021 to the date of this decision. This interest equals $0.24.

25. Under CRTA section 49 and the CRT’s rules, a successful party is generally entitled to reimbursement of their CRT fees and reasonable dispute-related expenses. As the applicant was only partially successful, I allow half the paid $125 in CRT fees, or $62.50. While I note the respondent did try to pay the May 2021 fees that I have allowed, there is no evidence before me that she did so before the applicant started this CRT dispute. So, I find it appropriate to allow half the CRT fees to reflect the applicant’s recovery of the $112.50. No dispute-related expenses were claimed.

ORDERS

26. Within 21 days of this decision, I order the respondent to pay the applicant a total of $175.24, broken down as follows:

a.    $112.50 in debt,

b.    $0.24 in pre-judgment interest under the COIA, and

c.    $62.50 in CRT fees.

27. The applicant is entitled to post-judgment interest, as applicable. I dismiss the balance of the applicant’s claims.

28. 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.

29. 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.