Date Issued: December 8, 2022

File: SC-2022-003495

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Zappa v. Morrison, 2022 BCCRT 1321

Between:

MARILYN IRENE ZAPPA

 

Applicant

And:

GEORGE DANIEL KELLY MORRISON

 

Respondent

REASONS FOR DECISION
Tribunal Member:	Shelley Lopez, Vice Chair

INTRODUCTION

1.      This dispute is about a personal loan between former romantic partners. The applicant, Marilyn Irene Zappa, says she loaned $3,000 to the respondent, George Daniel Kelly Morrison. The applicant says the loan has not been repaid and so she claims the $3,000.

2.      The respondent says the $3,000 was never a loan, and that the applicant offered the $3,000 to pay the respondent’s legal fees relating to a court proceeding involving both parties.

3.      The parties are each 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). CRTA section 2 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.      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. Although the parties’ submissions each call into question the credibility of the other party, the credibility of interested witnesses cannot be determined solely by whose demeanour appears most truthful in a courtroom or tribunal proceeding. Determining the most likely account includes assessing its harmony with the rest of the evidence. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find I can fairly hear this dispute through written submissions.

6.      CRTA section 42 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.

Late evidence

8.      The respondent submitted evidence beyond the CRT’s deadline. The applicant had the opportunity to respond to it, and so I find she was not prejudiced by it. Bearing in mind the CRT’s flexible mandate, I allow the late evidence, though I find it is of marginal relevance and nothing turns on it given my conclusion below.

9.      Next, I note the parties each allege the other assaulted them at different times, along with some allegations of property damage. I find whether any assault or damage actually occurred is not relevant to this dispute. Rather, this dispute is about whether the applicant loaned the respondent $3,000 on April 22, 2022 and whether he must repay it. I note the respondent did not file any counterclaim. For clarity, the CRT has no jurisdiction over any criminal proceedings proceeding in court.

ISSUE

10.   The issue in this dispute is whether the respondent owes the applicant $3,000 for an alleged personal loan.

EVIDENCE AND ANALYSIS

11.   In a civil proceeding like this one, the applicant must prove her claim on a balance of probabilities (meaning “more likely than not”). I have read the parties’ submitted documentary evidence and arguments but refer only to what I find relevant to provide context for my decision.

12.   On April 22, 2022, the applicant wrote a $3,000 cheque to the respondent. It was cashed on April 26, 2022. The cheque’s memo line read “For Court cost to be repaid if no invoice provided” (reproduced as written).

13.   Also in evidence is a handwritten April 22, 2022 promissory note allegedly signed by the respondent, in which he says he will “provide a copy of legal costs to [the applicant] upon receipt on or before May 15, 2022 or repay.” The respondent says this letter “is a fake” but submitted no evidence to support that assertion. More on this note below.

14.   The parties’ relationship undisputedly deteriorated to the point of criminal proceedings. As noted, I do not need to address the underlying behaviour leading to those proceedings. What matters is whether the $3,000 was a repayable loan. For the reasons that follow, I find that it was.

15.   As noted, the applicant says the $3,000 was a loan repayable by May 15, 2022 if he did not provide her with a lawyer’s invoice by that date. She says that “after significant persuasion”, she gave the respondent the $3,000 cheque with the above notation. The applicant says the underlying agreement was that if the respondent was required to pay his lawyer for a court appearance, the respondent needed to borrow the funds from the applicant. In particular, the applicant says the respondent explained that if legal aid was not approved, he would not be able to afford to pay his lawyer.

16.   The applicant says the promissory note reflected the parties’ agreement that if the respondent did not provide the applicant with a receipt showing payment to his lawyer then the respondent would repay the applicant the $3,000 by May 15, 2022. The applicant says legal aid covered the respondent’s legal fees, which the respondent does not expressly dispute. However, the respondent did submit a copy of a September 2022 letter from his lawyer that refers to the applicant having provided a $3,000 retainer on an unspecified date.

17.   Based on the applicant’s submissions, I find it clear she says the $3,000 was never a gift. She essentially says that if the respondent had given her by May 15, 2022 a lawyer’s invoice showing he had paid the lawyer $3,000 she would have agreed to delay repayment. Nothing turns on this however because there is no evidence the respondent ever gave the applicant a lawyer’s invoice or receipt by May 15, 2022, or ever. It follows the lawyer’s September 2022 letter is irrelevant since that was after May 15, 2022. I note that the letter also does not say when the respondent gave the lawyer the $3,000 retainer.

18.   In contrast, the respondent says it was never a loan. Rather, he says the applicant falsely accused him of assault and so she offered to pay his legal fees.

19.   I turn to the applicable law.

20.   As noted, the respondent essentially argues the money was an unconditional gift. Under the law of gifts, the burden shifts to the respondent to prove the applicant gifted him the money. To make a gift, the person transferring the gift must intend for it to be a gift and deliver it to the receiver who must accept it (see Pecore v. Pecore, 2007 SCC 17 and Lundy v. Lundy, 2010 BCSC 1004). The evidence must also show that the intention of the gift was inconsistent with any other intention or purpose (Lundy at paragraph 20). Further, once someone has made a gift to another person, that gift cannot be revoked (see Bergen v. Bergen, 2013 BCCA 492).

21.   As for the promissory note, the respondent submitted no evidence showing it was fake, such as examples of his signature or handwriting and no forensic analysis. As the party asserting the forgery, I find the respondent has the burden to prove it and he has not done so. In any event, I find the cheque’s memo line is sufficient to establish that at the time the applicant gave the respondent the cheque she intended it to be a loan, not a gift. Again, there is no evidence the respondent ever provided the applicant with a lawyer’s invoice, as referenced in the cheque’s memo line.

22.   In short, I find there is no evidence to support the respondent’s assertion that the $3,000 in question in this dispute was unconditionally gifted to him. Rather, I find the evidence shows the money was a repayable loan.

23.   So, given my conclusions above I find the applicant is entitled to reimbursement of the $3,000 loan. While the applicant asks that the respondent immediately e-transfer her the $3,000, I decline to order that. First, there is no evidence before me about the applicable banking details. Second, I find it appropriate to give the respondent some time to pay the $3,000, as set out in my order below.

24.   The Court Order Interest Act applies to the CRT. However, the applicant expressly waives a claim for pre-judgment interest, so I make no order for it.

25.   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. The successful applicant did not pay CRT fees so I make no order for them. The applicant claims reimbursement of $15.17 as a dispute-related expense, for serving the respondent. I allow this amount as I find it reasonable. The applicant also claims $157.50 “if a letter is required” from a counsellor. So, there is no evidence the applicant paid anyone the $157.50. The applicant did not submit such a letter and I find it would be irrelevant to the debt claim. So, I make no order for the $157.50.

ORDERS

26.   Within 21 days of this decision, I order the respondent to pay the applicant a total of $3,015.17, broken down at follows:

27. $3,000 in debt, and

28. $15.17 in dispute-related expenses.

29.   The applicant 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.