Date Issued: November 17, 2021

File: SC-2021-004198

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Jaszczyszyn v. Stubbins (dba Black Dog Upholstery), 2021 BCCRT 1215

Between:

MATHEW JASZCZYSZYN

Applicant

And:

LINDA STUBBINS (Doing Business As BLACK DOG UPHOLSTERY)

Respondent

REASONS FOR DECISION
Tribunal Member:	Trisha Apland

INTRODUCTION

1.      This claim is about custom marine products.

2.      The applicant, Mathew Jaszczyszyn, says he paid the respondent, Linda Stubbins (dba Black Dog Upholstery), $2,300 for a custom canvas top and marine carpet for his boat. Mr. Jaszczyszyn says the finished products were of poor quality and not designed as agreed. He says the boat cover was the wrong shape and not functional because it allowed water to leak into his boat. He says the carpet was not glued down, had crooked seams, did not meet the boat’s edges, and had other alleged defects.

3.      Mr. Jaszczyszyn says he should be protected as a consumer against businesses who allegedly do not fulfill their obligations. He claims a $2,300 refund. I infer Mr. Jaszczyszyn refers to and relies on the Business Practices and Consumer Protection Act (BPCPA) and the Sale of Goods Act (SGA).

4.      Mrs. Stubbins denies that Mr. Jaszczyszyn paid her $2,300 for the 2 products. She says Mr. Jaszczyszyn only paid a $200 deposit and nothing more. Mrs. Stubbins says she used “top quality material” and Mr. Jaszczyszyn is “making things up” so as not to pay. Mrs. Stubbins did not file a counterclaim for the alleged invoice balance, despite being given the opportunity to do so.

5.      The parties are each self-represented.

6.      For the reasons that follow, I find Mr. Jaszczyszyn paid Mrs. Stubbins $2,300 and he is entitled to a full refund under the BPCPA.

JURISDICTION AND PROCEDURE

7.      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.

8.      Some of the evidence in this dispute amounts to a “he said, she said” scenario. The credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. 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 and nor did the parties ask for an oral hearing. I also note that in Yas v. Pope, 2018 BCSC 282, at paragraphs 32 to 38, the British Columbia Supreme Court recognized the CRT’s process and found that oral hearings are not necessarily required where credibility is an issue.

9.      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.

10.   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.

11.   As a preliminary matter, Mrs. Stubbins submitted evidence after the CRT’s normal timelines for submitting evidence. I find Mr. Jaszczyszyn had a reasonable opportunity to review and respond to the late evidence and is not prejudiced by it. So, I have accepted Mrs. Stubbins’ late evidence.

ISSUES

12.   The issues in this dispute are:

a.    Did Mr. Jaszczyszyn pay Mrs. Stubbins the claimed $2,300 for the 2 custom products?

b.    If so, is Mr. Jaszczyszyn entitled to the claimed refund under the BPCPA?

c.    Did Mrs. Stubbins breach the implied warranties under the SGA and if so, what are the damages?

EVIDENCE AND ANALYSIS

13.   In a civil proceeding like this one, as the applicant Mr. Jaszczyszyn must prove his 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 to provide context for my decision.

Did Mr. Jaszczyszyn pay Mrs. Stubbins the claimed $2,300 for the 2 custom products?

14.   As shown in the parties’ emails and text messages, Mr. Jaszczyszyn contacted Mrs. Stubbins in 2020 for a quote to construct a canvas top to cover his boat. The parties decided on the material and design by email descriptions and Mrs. Stubbins quoted a total cost of between $2,000 and $2,500. The parties had no formal written contract.

15.   Mr. Jaszczyszyn paid a $200 deposit on September 25, 2020 by e-transfer. In about February 2021, Mr. Jaszczyszyn dropped his boat off at Mrs. Stubbins’ premises for her to construct and install the framing and cover on board. At some point, the parties agreed that Mrs. Stubbins would install new marine carpet.

16.   After Mrs. Stubbins completed the job in March 2021, she texted Mr. Jaszczyszyn that the total price for both products came to $2,300. Mr. Jaszczyszyn agreed to pay the additional $2,100 in cash or by e-transfer. The parties arranged he would pick up his boat at 3pm on March 19, 2021.

17.   Mr. Jaszczyszyn provided a signed banking statement showing he made a $2,100 withdrawal at noon on March 19, 2021. Mr. Jaszczyszyn says he then paid Mrs. Stubbins the $2,100 and picked up his boat as agreed.

18.   Mrs. Stubbins disagrees. She says Mr. Jaszczyszyn tried to pay by e-transfer and it did not go through so he promised to transfer the funds when he got home. Mrs. Stubbins did not submit any failed e-transfer records. She relies on her unpaid invoice and says Mr. Jaszczyszyn never did pay the remaining $2,100.

19.   I do not accept the March 17, 2020 invoice as proof of non-payment. The invoice was prepared by Mrs. Stubbins and is dated before payment was due.

20.   I find Mrs. Stubbins’ assertion that Mr. Jaszczyszyn failed to pay is inconsistent with the parties’ text messages. In particular, Mr. Jaszczyszyn had texted Mrs. Stubbins after he picked up the boat stating that he was “shocked at how poorly this cover was made” and he would have to tear everything out. He told her that water was already pooling on the floor, the cover was not functional, the carpet was wrong and not glued to the floor. Based on the photographs, I find both products were ill-fitting, the cover had obvious gaps where the rain could enter and the design was not as agreed. Also, the carpet did not meet the boat’s inside edge and was sagging, along with other apparent defects.

21.   On March 19, 2020, Mr. Jaszczyszyn texted that he would gladly drop the cover off for a refund less the material costs. Mrs. Stubbins did not reply that payment was still outstanding. Instead, she replied that she constructed the cover in a way to save him money and “unfortunately the cost of materials is just under $2,300”. Later Mrs. Stubbins texted that the material was $2,100, and “you loved it when you left deal is done”. She warned Mr. Jaszczyszyn not to come to her property, asked him to stop communicating with her, and said he could keep the cover.

22.   I find Mr. Jaszczyszyn likely texted for a refund less the material costs because he paid more than the $200 deposit. I interpret Mrs. Stubbins’ texts to mean there was nothing to refund because the material costs alone were allegedly $2,100 or $2,300. She does not explain what her texts would have otherwise meant. If Mr. Jaszczyszyn had not yet paid the bulk of the invoice as she asserts, I find Mrs. Stubbins would have said something about it and she did not. I find it implausible that Mrs. Stubbins would have only quoted the alleged materials costs without also asking to be paid. I also note her alleged costs are not supported by any receipts.

 

23.   I further find Mr. Jaszczyszyn’s assertion that he paid the balance in full is reasonably supported by his signed banking receipt. Again, the receipt shows he withdrew $2,100, the exact amount owing within hours of meeting Mrs. Stubbins to pick up his boat. I find Mrs. Stubbins likely released the boat to Mr. Jaszczyszyn because he paid the invoice balance.

24.   Mr. Jaszczyszyn alleges Mrs. Stubbins has video footage that she chose not to submit that would show her receiving his cash payment. As Mrs. Stubbins does not refute it exists or existed, I accept she has or had video footage of the transaction.

25.   To rely on an adverse inference, Mr. Jaszczyszyn must establish a prima facie case, which means that he must provide some evidence to support his version of events: see Lucas v. Canniff, 2021 BCSC 1014, at paragraph 69. I find Mr. Jaszczyszyn has proven a prima facie case as discussed above. I find such video evidence is highly relevant to the payment issue. I draw an adverse inference that Mrs. Stubbins failed to submit video evidence because it showed her accepting a cash payment on March 19, 2020.

26.   On balance, I accept Mr. Jaszczyszyn’s assertion that he paid Mrs. Stubbins a total of $2,300 for the 2 products, which I find is consistent with the evidence overall.

Is Mr. Jaszczyszyn entitled to the claimed refund under the BPCPA?

27.   The parties did not specifically discuss the BPCPA in their submissions. However, Mr. Jaszczyszyn referred generally to consumer protection and the BPCPA is consumer protection legislation that regulates contracts between consumers and suppliers.

28.   I find Mrs. Stubbins is a supplier as defined by the BPCPA because she supplied goods and services to Mr. Jaszczyszyn, a private consumer, through her business Black Dog Upholstery. I find the evidence before me is sufficient to determine whether the contract met the applicable BPCPA requirements, as set out below. The BPCPA provisions are also mandatory, so I found it was not necessary for the parties to provide additional submissions on the applicability of the BPCPA in the circumstances of this dispute.

29.   Since the supply and payment for the custom products was not due at the time the parties entered into the contract, their contract was a “future performance contract” as defined under BPCPA section 17. The BPCPA says a future performance contract must have certain information. Section 19 requires the contract to have the supplier’s name and contact information, detailed description of the goods and services, itemized and total purchase price, and some other contents not relevant here. Section 23(2) requires the contract to include the supply date.

30.   BPCPA section 23(3) required Mrs. Stubbins, to give a copy of the future performance contract to her consumer, Mr. Jaszczyszyn, within 15 days after the contract is entered into. Mrs. Stubbins never gave Mr. Jaszczyszyn a copy of a formal written contract.

31.   While there was no formal written contract, I reviewed the parties’ emails and texts to determine whether they included all the required BPCPA information. I find they include some but not all the mandatory information.

32.   I find the BPCPA’s requirement that Mrs. Stubbins provide a detailed description of the good and service is an important one in this contract for custom products. However, there is no detailed description of the marine carpet in the parties’ texts or emails. As for the boat cover, Mr. Jaszczyszyn had sent Mrs. Stubbins photographs of the design and the parties discussed and agreed to the details by email. Mrs. Stubbins also agreed to construct the custom cover as it was described. However, Mrs. Stubbins acknowledged in her later texts that she constructed something different to keep the costs down and without informing Mr. Jaszczyszyn. I find Mrs. Stubbins failed to provide Mr. Jaszczyszyn with the details or description of the products she ultimately constructed as required under section 19. I also find the supply date was missing and there was no stated price for the marine carpet.

33.   BPCPA section 23(5) says that a consumer may cancel a future performance contract by giving notice of cancellation to the supplier not later than 1 year after the date the consumer receives a copy of the contract, if the contract does not contain the information required in sections 19 and 23(2).

34.   BPCPA section 54 of the BPCPA requires a consumer who wishes to cancel a future performance contract to give notice by any method that creates evidence of their intention to cancel the contract on a specific date. I find Mr. Jaszczyszyn cancelled the contract through his March 2021 texts and by then bringing this CRT dispute for a refund. I find that both these cancellation requests were in time under BPCPA section 23(5).

35.   BPCPA section 27 says that if a consumer cancels a contract, the supplier must refund to the consumer all money received, without deduction, within 15 days after the notice of cancellation has been given. Section 55 says the consumer may recover the refund from the supplier as a debt due.

36.   Section 28 of the BPCPA requires a consumer who has cancelled a future performance contract to deliver any goods received under the contract to the supplier’s business address, which relieves the consumer of their obligations under the contract. As mentioned, Mrs. Stubbins expressly declined Mr. Jaszczyszyn offer to return the cover, which is the bulk of the price ($2,100). She then told Mr. Jaszczyszyn not to come to her property and to stop contacting her. I find Mrs. Stubbins effectively declined the products’ return. I note she did not ask for their return or file a counterclaim despite having alleged the outstanding payment. I infer this is because she did not want them returned. In the circumstances, I find Mr. Jaszczyszyn was relieved from his obligation to return the products and is entitled to a full refund under BPCPA section 27. I find Mrs. Stubbins must pay Mr. Jaszczyszyn $2,300 in debt.

 

37.   Given this fully resolves this matter, I have not addressed Mr. Jaszczyszyn’s entitlement to any damages under the SGA for a breach of the contractual warranties.

38.   The Court Order Interest Act applies to the CRT. Mr. Jaszczyszyn is allowed pre-judgment interest on the $2,300 refund debt from March 19, 2020 to the date of this decision. The interest equals $27.10.

39.   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. I find Mr. Jaszczyszyn is entitled to reimbursement of his paid $125 CRT fees. Mr. Jaszczyszyn claimed no specific dispute-related expenses.

ORDERS

40.   Within 15 days of the date of this order, I order Mrs. Stubbins to pay Mr. Jaszczyszyn a total of $2,562.10, broken down as follows:

a.    $2,300 in debt,

b.    $27.10 in pre-judgment interest under the Court Order Interest Act, and

c.    $125 in CRT fees.

41.   Mr. Jaszczyszyn is entitled to post-judgment interest, as applicable.

42.   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.

 

43.   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.