Date Issued: January 5, 2023

File: SC-2022-003850

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Pivnick v. Planet Lazer Entertainment Ltd., 2023 BCCRT 7

Between:

SARAH PIVNICK

Applicant

And:

PLANET LAZER ENTERTAINMENT LTD.

Respondent

REASONS FOR DECISION
Tribunal Member:	Eric Regehr

INTRODUCTION

1.      Sarah Pivnick hosted a child’s laser tag birthday party at Planet Lazer Entertainment Ltd., at a total cost of $490.50. According to Ms. Pivnick, the party was a disappointment. Ms. Pivnick alleges that Planet Lazer breached the parties’ contract in various ways. She claims $350, which I break down below. Ms. Pivnick, who is a lawyer, is self-represented.

2.      Planet Lazer says that it provided everything it promised. It denies any breach of the parties’ contract. Planet Lazer asks me to dismiss Ms. Pivnick’s claim. Planet Lazer is represented by its general manager.

JURISDICTION AND PROCEDURE

3.      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.

4.      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. In some respects, both parties of this dispute call into question the credibility, or truthfulness, of the other. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me. I note the decision Yas v. Pope, 2018 BCSC 282, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I decided to hear this dispute through written submissions.

5.      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.

6.      Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to pay money or to do or stop doing something. The CRT’s order may include any terms or conditions the CRT considers appropriate.

7.      Ms. Pivnick provided evidence after the CRT’s deadline. Planet Lazer objected, saying that it was unfair for allow a party to “just add evidence at random”. The CRT gave Planet Lazer the opportunity to comment on the late evidence, so I find that Planet Lazer was not prejudiced. In any event, the late evidence was about loot bags, and given my conclusion on that issue, the late evidence ultimately did not affect my decision.

ISSUES

8.      The issues in this dispute are:

a.    Did Planet Lazer breach the parties’ contract?

b.    If so, what are Ms. Pivnick’s damages?

EVIDENCE AND ANALYSIS

9.      In a civil claim such as this, Ms. Pivnick as the applicant must prove her case on a balance of probabilities. While I have read all the parties’ evidence and submissions, I only refer to what is necessary to explain my decision.

10.   The following facts are undisputed. On May 27, 2022, Ms. Pivnick booked a child’s birthday party with Planet Lazer for June 5, 2022. She booked using an online form through Planet Lazer’s website. She booked the “Ultimate Birthday Experience”, which included 2 laser tag games per player, pizza, beverages, a decorated party room, and an ice cream cake. Ms. Pivnick reserved space for 8 people at $31 per player for a total cost of $248. The online form allowed Ms. Pivnick to add loot bags for an additional $7.50 per loot bag. As discussed in more detail below, the parties dispute whether she ordered loot bags, either when she filled out the online form or in a later phone call.

11.   Planet Lazer sent Ms. Pivnick a confirmation email. The parties agree that the terms and conditions in this email formed part of the parties’ contract. I discuss specific terms where relevant below.

12.   Shortly after she made the reservation, a Planet Lazer employee phoned Ms. Pivnick to confirm the party details. During that call, Ms. Pivnick ordered extra pizza and paid a $100 deposit.

13.   When she arrived at Planet Lazer on the day of the party, Ms. Pivnick paid a further $365.50, for a total of $465.50, broken down as follows: 13 players (10 children and 3 adults) at $32.50 each, $11 to upgrade the 2 included pizzas to a larger size, and $32 for an additional large pizza. I note that in this dispute, Ms. Pivnick did not address the $1.50 discrepancy between the contract price and the price she paid, so I have not considered it.

14.   Planet Lazer did not provide loot bags and did not charge Ms. Pivnick for loot bags. After she arrived, Ms. Pivnick sent her sister to a store to buy supplies to put together bags for the children, at a cost of $74.55.

15.   Ms. Pivnick brought a vegetable platter into the party room. When the party ended, Planet Lazer insisted that Ms. Pivnick pay a $25 “outside food fee”, which she did. Again, none of the above is disputed (other than the loot bag issue).

16.   As mentioned above, Ms. Pivnick claims a total of $350. She breaks her claim down as follows: $33 because she says Planet Lazer only should have charged $20 for the 3 adults, $40 because 2 of the laser tag vests did not work, $25 for the outside food charge, and $75 for loot bags. She also claims a “reduction in contract price” for overcharged pizza, a lack of birthday decorations, and poor customer service. I will address each allegation in turn.

Adult Charges

17.   The party group included 10 children and around 3 adults. The 3 adults decided to participate in the laser tag games when they arrived at Planet Lazer. They were charged the full $31 as birthday party participants. Ms. Pivnick argues that Planet Lazer should have charged the 3 adults $20 for their 2 games. This is Planet Lazer’s normal pricing for 2 games.

18.   Planet Lazer says that the parties’ contract only has one price for additional players at birthday parties, which is $31.

19.   Ms. Pivnick argues that the $31 party “participant” rate was only for the children. I agree. It is true that the contract does not explicitly include separate prices for children and adults. However, the contract refers to “participants” (not “players”), and I find that most of the additional benefits of a “participant” in the birthday party package are aimed at children. I agree with Ms. Pivnick that the fact that Planet Lazer did not provide extra pizza or cake for the adults supports the conclusion that Planet Lazer did not consider them “participants” under the contract. I find that if the 3 adults were participants, the contract would have required Planet Lazer to order extra pizza for them (or provide a discount on the extra pizza Ms. Pivnick had already ordered). I find that Planet Lazer was only entitled to charge Ms. Pivnick the normal rate for playing the laser tag games. I order Planet Lazer to reimburse Ms. Pivnick the $37.50 difference.

Non-Functioning Vests

20.   Ms. Pivnick said that 2 of the laser tag vests did not work. She says that she should receive a discount for this. Planet Lazer says that it has no record of any malfunctions and denies any problems.

21.   Ms. Pivnick does not say whose vests allegedly malfunctioned, or in what way. There is no evidence from the person whose vest allegedly malfunctioned (or their chaperone) to describe what happened. Even if I accept that 2 players had difficulties with the equipment, I find it unproven that these difficulties were caused by faulty equipment given the lack of detail. I dismiss this aspect of Ms. Pivnick’s claim.

Outside Food Charge

22.   As mentioned above, Planet Lazer charged Ms. Pivnick $25 for outside food because she brought a vegetable tray to the party room. Ms. Pivnick argues that she did not agree to this charge. Planet Lazer says she did, relying primarily on its website booking process. Planet Lazer says that when booking the party room, there is a pop-up window that informs guests that there is a $25 “Food Surcharge Fee” for outside food. It provided a screen capture of this pop-up. Ms. Pivnick does not specifically deny that this pop-up appeared when she booked the contract. I find that it likely did, given the absence of a denial.

23.   Ms. Pivnick argues that it does not matter that there was a pop-up that purported to inform her of an outside food charge because the pop-up did not form part of the parties’ contract. I disagree. Terms and conditions on a website can form part of a contract if the website’s owner takes reasonable steps to bring them to a visitor’s attention before the parties enter into a contract. See Century 21 Canada Limited Partnership v. Rogers Communications Inc., 2011 BCSC 1196, and Kobelt Manufacturing Co. Ltd. v. Pacific Rim Engineered Products (1987) Ltd., 2011 BCSC 224. I find that the pop-up reasonably informed Ms. Pivnick about the outside food charge before she booked the birthday party, so it is binding on her.

24.   I note that Ms. Pivnick also signed a form during check-in that referred to the $25 outside food charge. She argues that this form is unenforceable because Planet Lazer provided no fresh consideration for it. Given my conclusion about the pop-up, I do not need to address this argument.

25.   Ms. Pivnick also argues that “outside food” should be interpreted as only including food that would cut into Planet Lazer’s profit, such as pizza or pop. She says Planet Lazer does not sell vegetable platters, so it should not be considered outside food. She says that it is unreasonable to consider a small vegetable tray “outside food”. I disagree. The general rule of contract interpretation is that words should be given their plain and ordinary meaning. I find that the plain and ordinary meaning of “outside food” is food brought into Planet Lazer by a customer. I find that the vegetable platter was “outside food” under the contract.

26.   Finally, Ms. Pivnick argues that the people who own Planet Lazer also own an adjacent trampoline park. She says that she attended a friend’s party there that included outside food, and that friend was not charged. I do not agree that this friend’s experience at an allegedly related business impacts Ms. Pivnick’s contractual obligations to Planet Lazer. I find that the contract required Ms. Pivnick to pay the $25 charge. I dismiss this aspect of Ms. Pivnick’s claim.

Loot Bags

27.   The parties dispute whether Ms. Pivnick ordered loot bags. I find that I do not need to decide this issue, because even assuming she did, I would still dismiss this aspect of her claim.

28.   If Ms. Pivnick had ordered loot bags and Planet Lazer had failed to provide them, it would be a breach of contract. When someone breaches a contract, the innocent party must take reasonable steps to mitigate their losses. Here, I find that Ms. Pivnick acted reasonably by asking her sister to put loot bags together. These loot bags cost almost exactly what Ms. Pivnick would have paid Planet Lazer, so she suffered no monetary loss.

29.   As for the inconvenience of sending her sister to buy loot bags, I find that this is essentially claim for mental distress. In general, a person is not entitled to damages for mental distress for a breach of contract. An exception to this general rule is when part of the contract’s purpose was to provide a “psychological benefit”. In those cases, the innocent party may receive modest compensation for inconvenience and discomfort that goes beyond mere frustration and disappointment. See Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30.

30.   I accept that hosting a child’s birthday party is a contract whose purpose is partly for a psychological benefit. However, I find that Ms. Pivnick’s disappointment and frustration of sending her sister for loot bags is not serious enough to warrant damages. I dismiss this aspect of Ms. Pivnick’s claim.

Pizza

31.   Ms. Pivnick argues that Planet Lazer overcharged her for pizza. Planet Lazer objects to me considering this claim because Ms. Pivnick did not specifically mention pizza in the Dispute Notice. I find nothing turns on this because for the reasons that follow, I find that Ms. Pivnick did not prove this aspect of her claim.

32.   Ms. Pivnick says that the parties never agreed on a cost for the additional pizza. There is no evidence otherwise, so I accept this is true. She says that she assumed Planet Lazer would charge “prevailing market rates”, which she says is $20 to $25. As mentioned above, Planet Lazer charged $33. So, this aspect of Ms. Pivnick’s claim is for damages between $8 and $13.

33.   In this dispute, Planet Lazer declined to disclose how much it paid for the pizza. Ms. Pivnick also did not provide evidence of the cost of a pizza, even though she knew which restaurant the pizza came from.

34.   Contrary to Planet Lazer’s submission that it was “at liberty to charge whatever we like to for pizza”, I find that Planet Lazer had an implied contractual obligation to charge a reasonable markup. However, the burden is on Ms. Pivnick to prove that Planet Lazer breached this term. In the absence of any evidence about the pizza’s cost, I find that she has not done so. I dismiss this aspect of Ms. Pivnick’s claim.

Decorations

35.   Ms. Pivnick mentioned a lack of decorations in the Dispute Notice, but did not make submissions about the decorations. She also provided no photos or other evidence about the decorations (or lack thereof) in party room. Planet Lazer says the party room is adequately decorated. I dismiss this aspect of her claim as unproven.

Poor Customer Service

36.   Ms. Pivnick says that the check-in process was chaotic and the staff was unhelpful. She also says that she and the manager had “an unpleasant argument about the principles of contract law”, during which the manager was rude to her. She argues that she should receive a partial discount for the poor customer service and overall disappointing birthday party.

37.   Even if I accept that Planet Lazer breached the parties’ contract by providing poor customer service, I find that she has not proven any harm beyond mere frustration and disappointment, which as noted above is not compensable. I dismiss this aspect of her claim.

38.   The Court Order Interest Act (COIA) applies to the CRT. Ms. Pivnick is entitled to pre-judgment interest from June 5, 2022, to the date of this decision. This equals $0.36.

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. The CRT often awards partial CRT fees where an applicant is partially successful. However, in previous disputes, the CRT has declined to do so where the applicant received a very small percentage of their initial claim (see, for example, West Coast Car Rental Inc. v. Shrestha, 2021 BCCRT 53 and Sabok Sir v. Kybow Holdings Ltd. dba Skimmerhorn Inn, 2022 BCCRT 622). While previous CRT disputes are not binding on me, I agree with this approach. I find that Ms. Pivnick was largely unsuccessful, having received only $37.50 of the $350 she claimed. I dismiss her claim for CRT fees. She did not claim any dispute-related expenses.

 

ORDERS

40.  Within 30 days of the date of this order, I order Planet Lazer to pay Ms. Pivnick a total of $37.86, broken down as follows:

a.    $37.50 in damages, and

b.    $0.36 in pre-judgment interest under the COIA.

41.  Ms. Pivnick is entitled to post-judgment interest, as applicable.

42.  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.