Date Issued: January 16, 2023

File: SC-2022-002881

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Total Recovery Credit Limited v. Cupello, 2023 BCCRT 41

Between:

TOTAL CREDIT RECOVERY LIMITED

Applicant

And:

ANGELA CUPELLO

Respondent

REASONS FOR DECISION
Tribunal Member:	Sherelle Goodwin

INTRODUCTION

1.      This is a debt claim. As discussed below, I dismiss this claim as out of time under the Limitation Act (LA).

2.      The applicant, Total Credit Recovery Limited (TCR), says the respondent, Angela Cupello, owes $2,120.13 to Rogers Communications Canada Inc (Rogers), for outstanding cell phone bills. TCR says Rogers assigned the debt to TCR. TCR claims $2,120.13 in debt.

3.      Ms. Cupello acknowledges the cell phone account was in her name, but says the debt belongs to her ex-boyfriend, who left with the cell phone. Ms. Cupello also says that TCR is out of time to file this claim, as the debt is more than 2 years old.

4.      TCR is represented by an owner or employee. Ms. Cupello represents herself.

JURISDICTION AND PROCEDURE

5.      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.

6.      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.

7.      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.

8.      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.

ISSUES

9.      The issues in this dispute are:

a.    Whether TCR is out of time to bring this claim, and

b.    If not, must Ms. Cupello pay TCR for the outstanding debt?

EVIDENCE AND ANALYSIS

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

11.   First, I accept that TCR has standing (the legal right) to bring this claim in debt against Ms. Cupello. According to a March 31, 2019 receivables purchase agreement, Rogers sold all rights, title and interest in its 2019 consolidated April to June 2019 accounts to TCR. So, I find TCR is the owner of the debt Ms. Cupello allegedly owes to Rogers and has the legal right to bring a claim to recover that debt.

12.   According to an October 14, 2017 unsigned service agreement, Ms. Cupello added a further phone number, with a phone and 24-month cell phone plan to her existing cell phone account. I infer this is Ms. Cupello’s ex-boyfriend’s phone, or former phone.

13.   According to a June 4, 2019 phone bill, Ms. Cupello’s cell phone services for both her phone and her ex-boyfriend’s phone were cancelled as of May 7, 2019. As of June 4, 2019 the cell phone account outstanding balance was $2,005.40.

14.   In an August 14, 2019 letter, TCR notified Ms. Cupello that it had purchased her outstanding cell phone account debt from Rogers. TCR said Ms. Cupello owed an original balance of $2,120.13 on the account, plus accrued interest. Neither party submitted any further cell phone bills showing the reason for the increased outstanding balance between June 4 and August 14, 2019. However, given my reasons below I find it does not matter.

15.   Ms. Cupello submitted as evidence several more letters from TCR up to May 31, 2020. All the demand letters showed an original debt of $2,120.13 plus accrued interest, with no payments made.

16.   As noted above, Ms. Cupello says TCR’s claim is out of time as this debt is more than 2 years old.

17.   Section 13 of the CRTA confirms that the LA applies to CRT claims. Section 6 of the LA says that the basic limitation period to file a claim is 2 years after the claim is “discovered”. At the end of the 2-year limitation period, the right to bring a claim disappears.

18.   Section 8 of the LA says a claim is “discovered” on the first day the person knew, or reasonably ought to have known, that the loss or damage occurred, that it was caused or contributed to by an act or omission of the person against whom the claim may be made, and that a court or tribunal proceeding would be an appropriate way to remedy the damage.

19.   TCR filed its application for dispute resolution on April 26, 2022, which stopped the limitation period. So, in order for its claim to be within the 2-year limitation period, TCR cannot have discovered its claim before April 27, 2020.

20.   It is unclear when Ms. Cupello was charged the majority of the $2,005.40 balance owing by June 4, 2019. However, for the purposes of this decision I find the debt was likely due and owing around June 4, 2019. This is because the cell phone bill specifically says that payment is due upon receipt. So, I find the debt claim was discoverable by that date, and well before April 27, 2020.

21.   TCR says the limitation period was extended, as “payments were made” in 2020. However, significantly, it does not specify how much was paid, by whom, or when.

22.   Section 24 of the LA says that the limitation period starts anew if a person acknowledges liability before the limitation period expires. Payment or partial payment of a liquidated sum is considered acknowledgement under LA section 24(7). A liquidated sum is one which is already determined or capable of being determined with a simple calculation (see Sawry v. Roshanagh et al, 2006 BCSC 470). I find TCR’s claim for Ms. Cupello’s debt is for a liquidated sum.

23.   Yet, as noted there is no evidence that Ms. Cupello, or anyone on her behalf, made any payments toward the outstanding cell phone debt. Rather, all of TCR’s demand letters up to May 31, 2020 specifically note that $0 was paid toward the outstanding balance. Based on those letters, I find Ms. Cupello did not acknowledge the debt with a partial payment at any time before May 31, 2020. Further, TCR claims $2,120.13 in this dispute, which I find is the exact same amount it says Ms. Cupello originally owed to Rogers when TCR purchased the debt. So, I find it unlikely that Ms. Cupello made any payments toward the debt.

24.   On balance, I find TCR has not proven that the 2-year limitation period started anew at any time. I further find TCR likely discovered its claim by June 24, 2019 and so I find the 2-year limitation period for this claim had expired well before TCR filed its April 26, 2022 application for dispute resolution. So, I dismiss TCR’s claims.

25.   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. As TRC was unsuccessful in its claim, it is not entitled to reimbursement of its paid CRT fees. As the successful party, Ms. Cupello paid no CRT fees and claimed no dispute-related expenses.

ORDER

26.   I dismiss TRC’s claims and this dispute.