Date Issued: January 23, 2023

File: SC-2022-003723

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Hercus v. Jensen, 2023 BCCRT 60

Between:

PATRICK HERCUS and WORLDWIDE SPIRITUAL SERVICES INC.

Applicants

And:

SABRINA JENSEN

Respondent

REASONS FOR DECISION
Tribunal Member:	Kristin Gardner

INTRODUCTION

1.      This dispute is about payment for counselling services.

2.      The applicant, Worldwide Spiritual Services Inc. (Worldwide), claims the respondent, Sabrina Jensen, has not paid for all counselling sessions provided by the applicant Patrick Hercus, Worldwide’s owner. The applicants claim $3,600 in unpaid services.

3.      Ms. Jensen says she paid for all counselling services she received. She says the applicants’ records are disorganized and inaccurate, and she denies that any amount remains outstanding.

4.      The applicants are represented by Mr. Hercus. Ms. Jensen is self-represented.

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. In some respects, both parties to 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 in Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 28, 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.

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.

ISSUE

9.      The issue in this dispute is to what extent, if any, Ms. Jensen owes the applicants $3,600 for counselling services.

EVIDENCE AND ANALYSIS

10.   In a civil proceeding like this one, the applicants must prove their claims on a balance of probabilities (meaning “more likely than not”). I have read all the parties’ submissions and evidence but refer only to the evidence and argument that I find relevant to provide context for my decision.

11.   It is undisputed that Ms. Jensen attended counselling sessions with Mr. Hercus between 2015 and 2019. There is no evidence of any written contract between the parties, and it is unclear which applicant Ms. Jensen contracted with. However, I decided it was unnecessary to determine this issue, as nothing turns on it given my conclusion below.

12.   Ms. Jensen undisputedly agreed to pay Mr. Hercus (or his company Worldwide) $80 per session. The evidence shows that she did not generally pay after each session she attended, or on any regular basis. In fact, the applicants’ records suggest Ms. Jensen paid nothing in 2018, even though she attended sessions with Mr. Hercus once or twice per month. Ms. Jensen says that Mr. Hercus repeatedly assured her that she did not have to pay right away, at least in part to convince her to continue attending sessions with him. The applicants did not particularly dispute this. Ms. Jensen says that she finally stopped seeing Mr. Hercus in 2019, with the intention of paying him everything she owed.

13.   It is undisputed that Ms. Jensen began paying Mr. Hercus $100 per month in November 2019, though it was not until June 2020 that the parties attempted to determine exactly how much Ms. Jensen owed. Ms. Jensen says that by February 2021, she had paid off her debt to Mr. Hercus. The applicants disagree.

14.   The applicants provided a “balance invoice” Mr. Hercus prepared for the purpose of this dispute. The balance invoice lists each session Ms. Jensen allegedly attended: 29 sessions in 2015, 32 sessions in 2016, 23 sessions in 2017, 18 sessions in 2018, and 6 sessions in 2019. At the agreed $80 per session rate, the total for those 108 sessions was $8,640. The balance invoice also lists each payment Ms. Jensen allegedly made: $1,480 in 2015, $820 in 2016, $1,360 in 2017, $600 in 2019, $1,290 in 2020, and $300 in 2021, for a total of $5,850.

15.   The balance invoice states that the amount outstanding equals $2,790 ($8,640 - $5,850). The applicants do not suggest any other amounts are owing for Mr. Hercus’ services, so I find the applicants amended their claim in this dispute from the $3,600 set out in the Dispute Notice to the $2,790 indicated on the balance invoice.

16.   The applicants also provided copies of Mr. Hercus’ day timer showing the dates Ms. Jensen allegedly attended sessions. Mr. Hercus says his day timer records all his client appointments and that he keeps a daily and weekly running total of all his appointments based on his day timer. He says if a client cancels, reschedules, or misses their appointment, he adjusts the running totals and erases the old appointment from the day timer. Mr. Hercus says that he creates an appointment total at the end of each month, which he transfers to a spreadsheet of all income and expenses. Mr. Hercus says that this system makes it “impossible” for him to make a mistake about the number of sessions attended.

17.   However, the applicants did not provide a copy of the alleged spreadsheet. They also did not prepare or provide Ms. Jensen with invoices following each session she attended. So, the only evidence of the number of sessions Ms. Jensen allegedly attended is Mr. Hercus’ day timer entries, which have been heavily redacted. Some of the pages have redacted notes with arrows pointing to Ms. Jensen’s name, and some include numbers under Ms. Jensen’s name that I infer relate to an outstanding balance. Yet, those numbers do not always correlate with the information on the balance invoice.

18.   Overall, I find Mr. Hercus’ day timer entries are insufficient to accurately and reliably determine how many sessions Ms. Jensen attended with Mr. Hercus between 2015 and 2019.

19.   Perhaps more importantly, the applicants did not provide Ms. Jensen with any receipts for the payments she made. They also provided no evidence about how they kept track of her payments over the years. The parties’ email evidence shows that when they first attempted in June 2020 to reach an agreement about the amount owing, Mr. Hercus had failed to account for several payments Ms. Jensen (and her mother) had made. He requested banking documents to prove the payments Ms. Jensen said had been made. Mr. Hercus ultimately amended the amount he told her was outstanding several times based on her records, but Ms. Jensen says he has still not fully accounted for all her payments.

20.   I note that Mr. Hercus submits he can provide all payment receipts, totalling approximately 70 pages, “if needed”. Parties are told during the CRT’s process to submit all relevant evidence, and Mr. Hercus provided no explanation for failing to provide the clearly relevant payment receipts. I find it would be inappropriate and disproportionate to seek that evidence at this late stage of the CRT proceeding. Overall, I find Mr. Hercus’ assertion about how much Ms. Jensen paid over the years, without supporting documentation, is insufficient. I am simply not satisfied that Mr. Hercus has accurately accounted for all of Ms. Jensen’s payments.

21.   Given the insufficient evidence provided to determine how many sessions Ms. Jensen attended and how much she paid the applicants over the years, I find the applicants’ allegation that any amount remains outstanding is unproven. I dismiss the applicants’ claims.

22.   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 the applicants were unsuccessful, I dismiss their claim for reimbursement of CRT fees and dispute-related expenses. Ms. Jensen did not pay any fees and does not claim any dispute-related expenses.

ORDER

23.   I dismiss the applicants’ claims, and this dispute.