Date Issued: November 1, 2022

File: SC-2022-002146

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Waste Connections of Canada Inc. v. MBW Canada Holding Inc.,
2022 BCCRT 1196

Between:

WASTE CONNECTIONS OF CANADA INC.

Applicant

And:

MBW CANADA HOLDING INC.

Respondent

REASONS FOR DECISION
Tribunal Member:	Kristin Gardner

INTRODUCTION

1.      This dispute is about a waste disposal contract. The applicant, Waste Connections of Canada Ltd. (WCC), provided waste disposal services to the respondent, MBW Canada Holding Inc. (MBW). WCC says MBW breached the parties’ agreement by failing to make payments, and that MBW owes $1,324.40 in unpaid invoices. WCC further says that MBW failed to properly terminate the contract, so WCC says MBW also owes $1,493.10 in liquidated damages. WCC’s total claim is $2,817.50.

2.      MBW does not dispute that it failed to pay WCC’s claimed invoices. MBW says that WCC provided poor service and that it tried to cancel WCC’s services. I infer that it is MBW’s position that WCC breached the contract and so it does not owe WCC anything.

3.      Each party is represented by a business contact.

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.

8.      I was initially unable to open one item of WCC’s evidence, its November 2019 invoice. So, I asked CRT staff to obtain a readable copy and WCC provided it. The parties each had an opportunity to make submissions on that evidence.

ISSUES

9.      The issues in this dispute are:

a.    Does MBW owe WCC $1,324.40 for unpaid invoices?

b.    To what extent, if any, is WCC entitled to $1,493.10 in liquidated damages?

EVIDENCE AND ANALYSIS

10.   In a civil proceeding like this one, the applicant WCC must prove its claims on a balance of probabilities (meaning “more likely than not”). I have read all of the parties’ evidence and submissions, but I refer only to what I find is necessary to explain my decision.

11.   In the Dispute Notice, WCC said its claim was based on an October 28, 2019 written service contract between the parties. However, in submissions, WCC referred only to a July 2, 2017 Customer Service Agreement (CSA), and it submitted a copy of that CSA in evidence. MBW does not dispute that it signed the July 2, 2017 CSA, and so I find it is the applicable agreement between the parties.

12.   The CSA contained the following relevant terms:

a.    The initial monthly service rate was $180 for twice per week waste service for a 3-yard bin and $48.32 for once per week “OCC” service, which I find likely refers to cardboard recycling, also for a 3-yard bin. Additional standard charges included $150 for bin delivery, $150 for bin removal, $150 for relocation, $150 for exchanges, and $15 for locks.

b.    Under “Additional Comments”, it stated: “no admin, no enviro, no commodity, 5% fuel”. It also stated the rates were firm for one year, excluding disposal increase, and there was a one-time bin exchange at no charge.

c.    MBW agreed WCC would have the sole and exclusive right to provide waste collection services during the one-year contract term that was effective as of July 1, 2017. The contract would renew with no notice for successive one-year terms.

d.    MBW could terminate the contract at the end of any one-year term by providing WCC with written notice by registered mail not less than 90 days or more than 180 days before the end of the then current term (cancellation window).

e.    In the event that MBW terminates the contract other than as provided by the contract, it must pay WCC any outstanding invoices, plus liquidated damages in an amount equal to the sum of the monthly billings for the most recent 9 months.

13.   WCC says that MBW stopped paying its invoices in September 2019, which MBW does not dispute. Given the timing of MBW’s alleged breach of contract and the absence of any evidence that either party terminated the contract before that date, I find the parties’ CSA automatically renewed on July 1, 2018, and again on July 1, 2019. This makes the applicable cancellation window January 3 to April 2, 2020.

14.   MBW says it was “unwittingly forced” to automatically renew the contract when it expired. I infer MBW means it was unaware of the automatic renewal and cancellation terms in the contract. However, a party who signs a contract is generally bound by its terms, even if the signing party may not have read or understood the contract. There are limited exceptions to this principle, such as fraud, misrepresentation, and mistake. However, as MBW did not further explain its allegation, I find there is insufficient evidence that any of the exceptions apply, and I find the CSA’s terms apply to the parties.

15.   WCC submitted copies of 7 invoices totalling $1,154.10, which I infer WCC says MBW owes:

a.    September 30, 2019 for $263.55. The basic service charge was $234.80, plus a $4.46 BC carbon fee, a $11.74 fuel surcharge, and GST.

b.    October 31, 2019 for $309.80. The basic service charge was $272.49, plus a $5.18 BC carbon fee, a $13.92 fuel surcharge, GST, and $3.95 in interest.

c.    November 30, 2019 for a $118.55 credit. The credit is based on a refund of the $272.49 basic service charge, the applicable BC carbon fee, and GST. The invoice shows the 3-yard bin was exchanged for a 4-yard bin, with a lessor basic service charge of only $158. The invoice also charged $3.95 in interest. There was no charge for the bin exchange and no fuel surcharge on this invoice.

d.    December 31, 2019 for $175.87. The basic service charge was $158, plus a $3.00 BC carbon fee, GST, and $6.82 in interest.

e.    January 31, 2020 for $175.87. The basic service charge was $158, plus a $3.00 BC carbon fee, GST, and $6.82 in interest.

f.      February 29, 2020 for $178.51. The basic service charge was $158, plus a $3.00 BC carbon fee, GST, and $9.46 in interest.

g.    March 31, 2020 for $169.05. The basic service charge was $158, plus a $3.00 BC carbon fee and GST. There was no interest on this invoice.

16.   WCC does not specifically explain the discrepancy between the above invoices’ $1,154.10 total and the $1,324.40 claimed. I note that WCC submits MBW failed to pay its invoices between September 2019 and April 2020. However, WCC did not provide a copy of its alleged April 2020 invoice, so I find any claim for that invoice is unproven. I also note that WCC submitted no documentation of its communications with MBW. It filed only the CSA and the above invoices.

17.   MBW argues that WCC provided substandard service and refused to respond to MBW’s requests to cancel the parties’ contract. Specifically, MBW says that a replacement 4-yard bin had no wheels and a lid that was too easy to pry open, so “homeless people” and “drug users” would go through the garbage, make a mess, and leave the area in an unsafe condition. MBW provided undated photos showing the bin lid open with an individual looking through the garbage, and an open bag of garbage on the ground with several hypodermic needles laying nearby.

18.   While MBW says it sent WCC several emails about its concerns with the bin and requested to end the contract, MBW did not provide copies of these alleged emails. WCC says MBW never reported any issues and did not request a new bin or a new locking system.

19.   I find the CSA did not include any requirement that WCC provide a bin with wheels or any particular type of locking system. MBW did not provide any other evidence or submissions of WCC’s alleged poor service. In the absence of supporting evidence that MBW notified WCC about any concerns, I find MBW has not shown that WCC breached the CSA. This means that MBW was bound by the CSA’s terms, including the terms about how MBW could validly cancel the CSA.

20.   So, I turn to whether WCC is entitled to the remedies it seeks.

21.   As noted, MBW admits that it refused to pay WCC’s claimed invoices. There is no evidence before me that MBW sent WCC written notice by registered mail between January 3 and April 2, 2020 that it was terminating the CSA. So, I find MBW’s failure to pay WCC’s invoices was a breach of the CSA, and MBW did not validly terminate the CSA. In these circumstances, WCC was entitled to seek payment of its unpaid invoices and liquidated damages.

22.   Given that MBW did not object to the amounts on any of WCC’s claimed invoices, I find that MBW must pay WCC the proven $1,154.10 in unpaid invoices between September 2019 and March 2020.

23.   As for liquidated damages, WCC did not provide an explanation for how it calculated the claimed $1,493.10. The CSA stated liquidated damages would be equal to the most recent 9 months of billings. WCC provided only 7 months of recent monthly billings, set out above, totalling $1,154.10.

24.   Given WCC’s undisputed submission that it provided services up to April 2020, I find that WCC is entitled to liquidated damages based on its monthly billings from August 2019 to April 2020. However, the August 2019 and April 2020 invoices are not before me. On a judgment basis, I find it is reasonable to use an average of the 7 months of invoices before me, which is $164.87, for each of those 2 missing months. Adding $329.74 ($164.87 x 2) to the $1,154.10 in proven billings equals $1,483.84.

25.   In summary, I find MBW must pay WCC $1,154.10 in debt and $1,483.84 in liquidated damages.

26.   Although the CSA included a provision for interest, WCC did not claim any contractual or other interest in this dispute. Section 2 of the Court Order Interest Act (COIA) says there is no pre-judgment COIA interest where there is an agreement about interest. Therefore, I make no order for pre-judgment interest.

27.   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. As WCC was largely successful, I find that it is entitled to reimbursement of the $125 it paid in CRT fees. MBW did not pay any fees and neither party claimed dispute-related expenses.

ORDERS

28.   Within 30 days of the date of this decision, I order the respondent, MBW Canada Holdings Inc., to pay the applicant, Waste Connections of Canada Inc. (WCC), a total of $2,762.94, broken down as follows:

a.    $1,154.10 in debt,

b.    $1,483.84 in liquidated damages, and

c.    $125 in CRT fees.

29.   WCC is entitled to post-judgment interest, as applicable.

30.   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. Once filed, a CRT order has the same force and effect as an order of the Provincial Court of British Columbia.