Date Issued: January 18, 2022

File: SC-2021-005080

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Cox v. Etheridge Home Renovation Ltd., 2022 BCCRT 69

Default decision – non-compliance

Between:

KARL COX

Applicant

And:

ETHERIDGE HOME RENOVATION LTD.

Respondent

REASONS FOR DECISION
Tribunal Member:	Chad McCarthy

INTRODUCTION

1.      This final decision of the Civil Resolution Tribunal (CRT) has been made without the participation of the applicant Karl Cox, due to the applicant’s non-compliance with the CRT’s mandatory directions as required, as discussed below.

2.      This dispute is about compensation for allegedly stolen items. Mr. Cox says a laptop bag containing personal items was stolen from the office of the respondent Etheridge Home Renovation Ltd. (Etheridge). Mr. Cox claims $3,517.88 for the value of the allegedly stolen items. Etheridge denies Mr. Cox’s claim.

3.      The parties are each self-represented in this dispute.

JURISDICTION AND PROCEDURE

4.      Section 36 of the Civil Resolution Tribunal Act (CRTA) applies if a party to a dispute fails to comply with the CRTA or its regulations. It also applies if a party fails to comply with CRT rules in relation to the case management phase of the dispute, including specified time limits, or an order of the CRT made during the case management phase. After giving notice to the non-compliant party, the case manager may refer the dispute to a CRT member for resolution and the CRT member may:

a.    Hear the dispute in accordance with any applicable rules.

b.    Make an order dismissing a claim in the dispute made by the non-compliant party, or

c.    Refuse to resolve a claim made by the non-compliant party or refuse to resolve the dispute.

5.      The case manager has referred the applicant’s non-compliance with the CRT’s rules to me for a decision about whether I ought to hear the dispute, refuse to resolve it, or dismiss it.

6.      These are the CRT’s formal written reasons. The CRT has jurisdiction over small claims brought under section 118 of the 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.

7.      Where permitted under section 118 of the CRTA, 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.

Counterclaim

8.      Etheridge had filed a counterclaim against Mr. Cox for $1,916.95, for an allegedly stolen Etheridge laptop computer it says Mr. Cox failed to secure. However, before this decision, Etheridge asked to withdraw its counterclaim. Under CRT rule 6.1, a party can request permission to withdraw one or more of its claims either before the end of the facilitation process or after the dispute has been assigned to a tribunal member for adjudication.

9.      I allow the requested withdrawal as I find no prejudice to Mr. Cox, who as discussed below has failed to participate as required. Given the withdrawal, I have amended the style of cause above to reflect only Mr. Cox’s claim against Etheridge. For reasons that follow, I dismiss Mr. Cox’s claim.

ISSUES

10.   The first issue is whether the applicant is non-compliant with the CRTA and the CRT’s rules.

11.   If the applicant is non-compliant, the second issue is whether I should dismiss the applicant’s claim.

EVIDENCE AND ANALYSIS

Non-compliance

12.   My January 16, 2022 summary decision to hear the dispute without the applicant’s participation due to the applicant’s non-compliance was previously communicated to the parties by email through the case manager. The details supporting that decision are set out below.

13.   For the following reasons, I find the applicant is non-compliant in this dispute, having failed to participate in the case management phase as required by sections 25 and 32 of the CRTA and CRT rules 1.3(1), 5.1 to 5.4, and 7.1 to 7.4. This is despite multiple attempts by the case manager to contact the applicant with a request for a reply.

14.   The applicant filed his Dispute Notice on June 24, 2021, and his Dispute Response to Etheridge’s counterclaim on September 26, 2021. Both documents included the applicant’s email address to be used for this dispute, as well as the same contact phone number. The case manager provided details of the applicant’s non-compliance, as follows:

a.    November 18, 2021: email request to forward a receipt by November 22, 2021. The applicant did not respond.

b.    November 23, 2021: email request to respond by email within 2 days. No response.

c.    December 3, 2021: separate email and phone requests to pay the tribunal decision process (TDP) fee by December 7, 2021. This included an email warning that the respondent was not interested in paying the TDP fee, and that if it remained unpaid, the CRT could dismiss or refuse to resolve the dispute, or resolve it anyway. Additional reminder email also sent, with a warning that if the CRT did not receive a response by the December 7, 2021 deadline, it may decide to hear the dispute without the applicant’s further participation, or refuse to resolve or dismiss the dispute. No response.

d.    December 7, 2021: email request to pay the TDP fee by December 10, 20201, and a follow-up reminder to pay by the deadline, with a warning that failing to respond meant the dispute could be decided without the applicant’s further participation, or could be dismissed or its resolution refused. No response.

e.    December 10, 2021: email request to pay the TDP fee by December 16, 20201, and a follow-up reminder to pay by the deadline, with a warning that failing to respond meant the dispute could be decided without the applicant’s further participation, or could be dismissed or its resolution refused. No response.

f.     December 10, 2021: final non-compliance email saying that the applicant must follow the case manager’s directions, and must either pay the TDP fee or request a withdrawal from the dispute by December 16, 2021. Final warning that with no further warning, failing to respond as directed meant the case manager may refer the dispute to a tribunal member for adjudication, who may decide the dispute without the applicant’s participation, or dismiss or refuse to resolve it. Voicemail also left with applicant. No response to either.

15.   The case manager then referred the matter of the applicant’s non-compliance with the CRT’s rules to me for a decision as to whether I should hear the dispute without the applicant’s participation, or dismiss it or refuse to resolve it.

16.   Based on the above, I find the applicant is non-compliant with the CRTA and the CRT’s rules for his failure to respond to the case manager’s requests for contact and payment. As noted above, the applicant was warned multiple times, in writing, about the risks of his failure to comply with the case manager’s directions. I am aware that the applicant contacted the CRT by email after my January 16, 2022 summary decision was issued and sent to the parties by email. However, I find nothing turns on that, because by the time the CRT received the applicant’s email my summary decision to dismiss his claim without his further participation for non-compliance, as further explained below, was already effective. I have not reviewed or considered the applicant’s late email in coming to my decision here.

17.   I turn then to whether I should continue to hear the applicant’s claim, or whether I should refuse to resolve or dismiss it.

Should the CRT dismiss the applicant’s dispute or refuse to resolve it?

18.   As noted above, the applicant initiated this CRT dispute, and also filed a Dispute Response to the respondent’s counterclaim. The applicant has provided no explanation about why he stopped communicating with the CRT as required. Parties are told at the beginning of the facilitation process that they must actively participate in the dispute resolution process and respond to the case manager’s communications, including emails. I find the case manager made a reasonable number of contact attempts, through both the email address and phone number that the applicant provided. Given the multiple attempts, I find it is more likely than not that the applicant knew about the case manager’s attempts and failed to respond.

19.   Rule 1.4(2) states that if a party is non-compliant, the CRT may:

a.    Decide the dispute relying only on the information and evidence that was provided in compliance with the CRTA, a rule or an order,

b.    Conclude that the non-compliant party has not provided information or evidence because the information or evidence would have been unfavourable to that party’s position, and make a finding of fact based on that conclusion,

c.    Dismiss the claims brought by a party that did not comply with the CRTA, a rule or an order, and

d.    Require the non-compliant party to pay to another party any fees and other reasonable expenses that arose because of a party’s non-compliance with the CRTA, a rule or an order.

20.   Rule 1.4(3) says that to determine how to proceed when a party is non-compliant, the CRT will consider:

a.    Whether an issue raised by the claim or dispute is of importance to persons other than the parties to the dispute,

b.    The stage in the facilitation process at which the non-compliance occurs,

c.    The nature and extent of the non-compliance,

d.    The relative impact on the parties of the CRT’s order addressing the non-compliance, and

e.    The effect of the non-compliance on the CRT’s resources and mandate.

21.   Based on the evidence described above, I find that the applicant had proper notice of the case manager’s attempts to contact him, and knew the consequences if he failed to respond, including the potential dismissal of his dispute. I am also satisfied the dispute only affects the named parties. The non-compliance occurred relatively early in the dispute, before the decision process and the exchange of evidence and submissions. I see no prejudice to the respondent in making an order dismissing the applicant’s claim. I find the prejudice to the applicant of dismissing his claim is outweighed by the circumstances of his non-compliance.

22.   Further, I find that if I were to refuse to resolve the applicant’s claim, there would be no finality to this dispute as it would be open to the applicant to make a further request for CRT resolution, subject to any limitation period. I find that in refusing to resolve, there would be no finality and no consequence to the applicant for failing to participate, which would be unfair to the respondent.

23.   Given the case manager’s attempts at contact and the applicant’s failure to respond despite written warnings of the consequences, I find the nature and extent of the non-compliance is significant. I also note that the CRT’s resources are valuable. Its mandate to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly is seriously impaired if one party refuses to participate. I find that it would be wasteful for the CRT to continue applying its resources to the applicant’s claim in this dispute by making further attempts to seek the applicant’s participation.

24.   Although not binding on me, I agree with and apply the CRT Chair’s reasoning in Grand-Clement v. The Owners, Strata Plan KAS 2467, 2017 BCCRT 45, that it is problematic to force an unwilling applicant to pursue a dispute with the CRT. I agree that to do so would go against the CRT’s mandate and impair the fairness of the process by creating an imbalance in the CRT’s fact finding and decision-making functions.

25.   In the circumstances, and having weighed all of the factors, I find the applicant’s claim should be dismissed. I have put significant weight on the following factors:

a.    The extent of the non-compliance is significant,

b.    The respondent is not prejudiced, and

c.    The need to conserve the CRT’s resources.

26.   Therefore, I dismiss the applicant’s claim. Given this dismissal and the respondent’s recent counterclaim withdrawal, I order no reimbursements of CRT fees or CRT dispute-related expenses.

ORDER

27.   I dismiss Mr. Cox’s claim and this dispute.

	Chad McCarthy, Tribunal Member