Date Issued: January 10, 2023

File: SC-2022-003767

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Skyview Services Ltd. v. French, 2023 BCCRT 23

Between:

SKYVIEW SERVICES LTD.

Applicant

And:

JANICE FRENCH and RICHARD FRENCH

RespondentS

And:

SKYVIEW SERVICES LTD.

Respondent BY COUNTERCLAIM

REASONS FOR DECISION
Tribunal Member:	Chad McCarthy

INTRODUCTION

1.      This dispute is about door blinds. The respondents (and counterclaim applicants), Janice French and Richard French, hired the applicant (and counterclaim respondent), Skyview Services Ltd. (SSL), to provide and install a custom vertical blind for a sliding glass door. SSL claims $520, the amount it says remains outstanding for the blind installation. The respondents say the blind was not the same type that they ordered, so they owe nothing. The respondents counterclaim $615 for a refund of their paid deposit and an order that they can return the blind to SSL.

2.      SSL is represented by its president and secretary, Therese Margeurite Chickloski. Richard French represents both respondents.

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. 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

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 do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

7.      In the counterclaim Dispute Notice, the respondents requested an order for SSL to refund $615 and an order that they can return the installed blind to SSL. They clarified in their submissions that the blind was in a box ready for SSL to pick up as part of the claimed $615 refund. This blind retrieval request is a request for a party to do something, which is known as injunctive relief. Under its CRTA section 118 small claims jurisdiction, the CRT cannot order injunctive relief except in narrow circumstances that do not apply here, given that SSL does not seek to retrieve the blind. However, as explained below, I find SSL is not required to retrieve the blind from the respondents in any event.

ISSUES

8.      The issues in this dispute are:

a.    Were the respondents entitled to cancel the contract because SSL installed a different type of blind than the parties agreed to?

b.    If so, does SSL owe the respondents a $615 deposit refund and must it retrieve the blind from the respondents?

c.    If not, do the respondents owe SSL $520 for the remaining balance?

EVIDENCE AND ANALYSIS

9.      In a civil proceeding like this one, SSL, as the applicant, must prove its claim on a balance of probabilities, meaning “more likely than not.” The respondents must prove their counterclaim to the same standard. I have read all the parties’ submissions but refer only to the evidence and arguments that I find relevant to provide context for my decision.

10.   The respondents do not take issue with the blind’s colour, materials, or installation. They say the blind SSL provided was of a different type than the blind they ordered, and did not function as they expected. SSL denies this.

11.   There is no formal written contract, estimate, quotation, or design document in evidence. However, an SSL employee undisputedly visited the respondents’ home on February 23, 2022 and took design measurements for a custom window blind for a sliding door. A submitted SSL invoice shows that the respondents ordered a single “vertical shade” with installation included, paid a $615 deposit, and owed a balance of $520.

12.   SSL installed the blind on May 31, 2022. The respondents say that when the SSL installer unboxed the blind, he identified it as having a double-opening design, where it could be fully pushed back to either the left or right side, as opposed to a single-opening design, where the blind was fixed on one side and only opened in one direction. The respondents did not object to that blind’s installation, and say they simply planned to open the blind left-to-right like they had earlier indicated to SSL.

13.   The respondents say that after installation, it became apparent the blind had a larger “stack back” width than they anticipated, which is the width taken up by the blind when it is fully open and drawn to one side. After some negotiation, the respondents requested a refund of their deposit and to return the blind to SSL, which is what they claim in this CRT dispute. I find that was a request to cancel the parties’ contract. The respondents admit that they never mentioned stack back width to SSL, and the parties did not directly agree that the blind would have a specific stack back width. SSL says it installed what the parties agreed on and did not breach their contract.

14.   I find the facts of this dispute are similar to those in M.J. Drapery and Blind Ltd. v. Sharma, 2021 BCCRT 245 and Ashcroft Window Coverings Ltd. v. Mohammed, 2022 BCCRT 125. In those previous CRT disputes, the respondents purchased custom blinds and sought to cancel their contracts several weeks later. The CRT found that those respondents were entitled to cancel the contracts under the Business Practices and Consumer Protections Act (BPCPA). The respondents in this dispute did not seek cancellation until after SSL installed the blind, but I find that installation does not affect their cancellation rights. Although CRT decisions are not binding on me, I find the reasoning in M.J. Drapery and Ashcroft is applicable to this dispute. I arrive at the same result, for the reasons that follow.

15.   The parties did not discuss the BPCPA in their submissions, which was also the case in M.J. Drapery and Ashcroft. As in those previous decisions, I find the key facts of this case are undisputed, and the applicable BPCPA sections are mandatory. So, for the same reasons given in M.J. Drapery and Ashcroft, I find it is not necessary for the parties to make submissions on the application of the BPCPA here.

16.   BPCPA section 17 says a future performance contract is a contract between a supplier and a consumer for the supply of goods or services for which the supply or payment in full of the total price payable is not made at the time the contract is made or partly executed. Section 17 lists certain exceptions which I find do not apply to the parties’ contract.

17.   I find the evidence before me shows that under the BPCPA, SSL was a supplier, the respondents were consumers, and they entered into a contract for the blind no earlier than February 23, 2022, the date of the earliest SSL invoice and the date SSL made blind measurements. I find that was a future performance contract because the custom blind was provided after the February 23, 2022 contract date, and the respondents did not pay the full price on the contract date.

18.   Were the respondents entitled to cancel the contract? BPCPA section 23(5) says that a future performance contract must contain certain information, including the supply date and the date on which the supply of goods or services will be complete. As noted, there was no formal written contract, although I find the February 23, 2022 invoice recorded the parties’ agreement, at least in part. However, I find none of the documents in evidence contain a date, or a range of dates, when the blind’s supply and installation would be complete. So, I find that the parties’ agreement does not meet the requirements of BPCPA section 23(2).

19.   BPCPA section 23(5) says that if a future performance contract does not contain the information required under section 23(2), a consumer may cancel the contract by giving notice to the supplier no later than 1 year after the date that the consumer receives a copy of the contract. I find the respondents were entitled to cancel the contract because it did not contain the information required under section 23(2).

20.   Under section 54, the cancellation notice may be given by any method that creates evidence of the party’s intention to cancel the contract on a specific date. A June 3, 2022 SSL letter in evidence acknowledged that the respondents requested a refund or credit. However, I find this is consistent with the parties’ submitted email discussions about potential remedies, and does not confirm an unconditional cancellation request.

21.   Regardless, I find the CRT issued the counterclaim Dispute Notice on June 30, 2022, and SSL likely received it on that date or shortly after. I find that was less than 1 year after the February 23, 2022 contract date. I find the counterclaim Dispute Notice effectively requested cancellation of the parties’ contract, for unacceptable blind stack back width. I do not need to consider whether that reason is valid, because the BPCPA only requires that a reason be given. So, I find the counterclaim Dispute Notice was sufficient cancellation notice under the BPCPA.

22.   SSL’s invoice contained a condition that no changes or cancellations were allowed after the deposit was paid. SSL argues that this means no refund is payable. Even if the parties had agreed to that invoice condition as part of their contract, BPCPA section 3 says that any waiver or release of a person’s rights, benefits, or protections under the BPCPA is void except where expressly permitted by the BPCPA. I find the BPCPA does not expressly permit the parties to contract out of its future performance contract cancellation rights. So, in the circumstances, I find the invoice’s “no cancellations” condition does not apply to the respondents’ cancellation rights under the BPCPA.

23.   BPCPA section 27 says that if a consumer cancels a contract, the supplier must provide a full refund within 15 days after the cancellation notice was given. SSL undisputedly provided no refund. So, I allow the respondents’ claim for a $615 refund, and I dismiss SSL’s claim for $520.

24.   Turning to the refunded blind, BPCPA section 28 says a consumer who cancels a future performance contract must deliver any goods received under the contract back to the supplier. In this CRT dispute, SSL makes no claim about the blind’s return. However, to the extent the respondents counterclaim for an order for SSL to pick up the blind, I find that would be inconsistent with the section 28 requirement that the respondents deliver the blind to SSL. So, I dismiss that aspect of the respondents’ counterclaim.

CRT Fees, Expenses, and Interest

25.   The Court Order Interest Act (COIA) applies to the CRT. I find that under the COIA, the respondents are entitled to pre-judgment interest on the $615 owing. I find this interest is reasonably calculated from July 15, 2022, which is 15 days after the June 30, 2022 cancellation notice date, until the date of this decision. This equals $5.62.

26.   Under section 49 of the CRTA, and the 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. SSL was unsuccessful in its claim, but the respondents paid no CRT fees for that claim. The respondents were largely successful in their counterclaim, so I find they are entitled to the $125 in CRT fees they paid for the counterclaim. Neither party claimed CRT dispute-related expenses.

ORDERS

27.   I order that, within 30 days of the date of this order, SSL pay the respondents a total of $745.62, broken down as follows:

a.    $615 in debt,

b.    $5.62 in pre-judgment interest under the COIA, and

c.    $125 in CRT fees.

28.   The respondents are also entitled to post-judgment interest under the COIA, as applicable.

29.   I dismiss SSL’s claim, and the remaining aspects of the respondents’ counterclaim.

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.