Date Issued: January 23, 2023

File: SC-2021-008251

Type: Small Claims

Civil Resolution Tribunal

Indexed as: 2 Burley Men Moving Ltd. v. Krikke, 2023 BCCRT 61

Between:

2 BURLEY MEN MOVING LTD.

Applicant

And:

THOMAS KRIKKE

Respondent

And:

2 BURLEY MEN MOVING LTD.

Respondent BY COUNTERCLAIM

REASONS FOR DECISION
Tribunal Member:	Leah Volkers

INTRODUCTION

1.      This dispute is about moving services. The respondent and applicant by counterclaim, Thomas Krikke, hired the applicant and respondent by counterclaim, 2 Burley Men Moving Ltd. (Burley), to move his belongings. Burley says that it completed the move and while Mr. Krikke made a partial payment of $1,285, he has failed pay the remainder. Burley claims payment of $1,056.12 for its unpaid moving services.

2.      Mr. Krikke says Burley is not entitled to any further payment because they overcharged him, did not complete the move, and damaged some of his belongings. In his counterclaim, Mr. Krikke claims a total of $5,000 for overbilling, damages and his time spent on this dispute.

3.      Burley is represented by an employee. Mr. Krikke is 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). 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.

5.      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, the parties in this dispute call into question each other’s credibility. Credibility of witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. In Yas v. Pope, 2018 BCSC 282, the court recognized that oral hearings are not necessarily required where credibility is in issue. In the circumstances of this dispute, I find that I am able to assess and weigh the evidence and submissions before me. Bearing in mind the CRT’s mandate that includes proportionality and prompt resolution of disputes, I decided to hear this dispute through written submissions.

6.      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.

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.

Evidence issues

8.      CRT staff informed me that Mr. Krikke attempted to submit 47 pieces of documentary evidence, but only 4 pieces were saved in the CRT’s online dispute resolution portal. CRT staff became aware of this issue when Burley advised it could not access Mr. Krikke’s evidence. CRT staff sent Mr. Krikke emails asking him to resubmit his evidence, but Mr. Krikke did not reply. CRT staff then called and spoke with Mr. Krikke and arranged for Mr. Krikke to re-submit his documentary evidence the following day, but Mr. Krikke failed to do so. CRT staff sent two further emails to Mr. Krikke requesting he re-submit his evidence, without reply. Although Mr. Krikke did not reply to the CRT emails about his documentary evidence, CRT staff indicated that Mr. Krikke followed the CRT’s emailed directions to provide response submissions on Burley’s claim, as well as his submissions and reply submissions on his counterclaim. Based on the above, I find Mr. Krikke was reasonably provided the opportunity to re-submit his documentary evidence, and chose not to do so. So, I find Mr. Krikke was not prejudiced, and it is not procedurally unfair to proceed to decide this dispute without further evidence from Mr. Krikke.

ISSUES

9.      The issues in this dispute are:

a.    Is Burley entitled to the claimed $1,056.12 for moving services?

b.    To what extent, if any, is Mr. Krikke entitled to $5,000 for alleged overbilling, damages, and time spent?

EVIDENCE AND ANALYSIS

10.   In a civil proceeding like this one, as the applicant Burley must prove its claims on a balance of probabilities (meaning more likely than not). Ms. Krikke must prove his counterclaims to the same standard. I have read all the parties’ submissions and evidence but refer only to what I find relevant to provide context for my decision.

11.   The parties do not dispute that the residential move took place on October 14 and 15, 2021, and involved moving Mr. Krikke’s belongings from a cabin on Vancouver Island to another town nearby.

Moving charges

12.   Burley submitted an invoice dated October 14/15, 2021, totaling $2,341.12. Based on $130 per hour for 2 movers for 16 hours, the total charge was $2,080, plus $104 in tax on the moving fees, 2 x $50 fuel charges, $51 in packing supplies, and $6.12 in tax on the packing supplies.

13.   Mr. Krikke says he did not receive any invoice from Burley. However, the invoice in evidence appears to be signed by Mr. Krikke, and he undisputedly paid Burley $1,285. So, I find he likely received Burley’s invoice.

14.   Mr. Krikke says he wrote “final payment if cashed” on the cheques he provided to Burley because he knew Burley was going to try to seek further payment from him. I find Mr. Krikke argues that when Burley deposited his cheques it agreed to release him from any further claim for payment under the invoice. In law this is known as the doctrine of “accord and satisfaction”. Under that doctrine, the alleged debtor, Mr. Krikke, must show that the alleged creditor, Burley, expressly communicated an intention to accept partial payment as a final settlement. Silence is not generally considered acceptance. See IBI Group v. Lefevre, 2004 BCSC 298. Here, there is no evidence Burley expressly communicated it would accept $1,285 in full satisfaction of its invoice. Accordingly, I find Mr. Krikke cannot rely on the defence of accord and satisfaction.

15.   Mr. Krikke says Burley provided a $1,500 estimate based on one day of work. Burley says it provides estimates based on the information the customer provides at the time of booking. Mr. Krikke does not say he was given a fixed-price quote, and I find he was not. He also does not dispute that he agreed to pay $130 per hour, as indicated on a confirmation email and the invoice itself. So, I find that Burley is not bound by the estimate.

16.   Mr. Krikke says that Burley’s movers took two days to finish work that should have been completed in one day. He says Burley’s movers were supposed to arrive at 9 a.m. but did not arrive and start working until 11 a.m. He says the movers left at 3 p.m. and refused to stay longer to finish the work and left behind a large portion of “stuff” that he then had to do himself. Contradictorily, an October 16, 2021 email from Mr. Krikke to Burley indicated that, apart from some items he said were dirty and needed cleaning, he was happy with the move and not having to do it himself. Notably, the email did not mention that Burley’s movers had left early, failed to complete any work, left any items behind, or refused to move items. Mr. Krikke did not address this email in his submissions or explain why he did not raise any further issues with Burley’s moving services at that time, which he now raises in this dispute. Overall, I find Mr. Krikke’s submissions on the work Burley completed inconsistent with the email he sent one day after the move. As a result, I place little weight on his submissions about Burley’s work.

17.   Mr. Krikke says he should not have to pay for Burley’s time on the second day of the move, including any additional travel time, because the move would have been completed in one day if the movers had showed up earlier and stayed later. The invoice has two separate “total time” fields. First, the total time spent on the move was recorded as 16 hours over two days, 9.25 hours on October 14 and 6.75 hours on October 15. Second, and directly below, a second total time field recorded 3.5 hours for “extra travel outbound” and “extra travel inbound”, 1.5 hours on October 14 and 2 hours on October 15. I find the first 16 hour time total listed on the invoice likely does not include the 3.5 hours of travel time in the total time field listed directly below it. However, Burley only charged Mr. Krikke for 16 hours total. Based on the invoice, I find Burley likely charged Mr. Krikke for 16 hours of moving time, and did not charge Mr. Krikke for the additional 3.5 hours of travel time.

18.   As discussed above, although 3.5 hours of travel time is recorded on the invoice, I find Burley did not charge for any travel time. Further, based on the time billed for on Burley’s invoice (16 hours over 2 days), I find the move could not have been reasonably been completed in one day as Mr. Krikke alleges. So, I find Mr. Krikke is responsible for the moving charges for both October 14, 2021 and October 15, 2021. Apart from disputing the charges for the second day, Mr. Krikke did not specifically dispute any other charges on Burley’s invoice. Therefore, I find Burley is entitled to payment of $1,056.12 for its unpaid moving services, subject to any set-off arising from the counterclaim.

Mr. Krikke’s counterclaim

19.   In his counterclaim, Mr. Krikke claims a total of $5,000, broken down as follows:

a.    Refund for overbilling - $400

b.    Completing Burley’s work himself - $376

c.    Picnic table not moved - $400

d.    Damage and repairs - $980

e.    Mr. Krikke’s time at $350/hr x 12 hours - $2,630

f.     Hiring a skid steer operator to help the movers - $214.

Refund for overbilling - $400

20.   Mr. Krikke claims a refund of $400 “nominally” for overbilling. Mr. Krikke provided further submissions and his own calculations of how much time he says the move should have taken. However, as explained above, I have already found that the time Burley recorded in its invoice accurately reflects the time spent completing the move, and Burley is entitled to payment of $1,056.12 for its unpaid moving services. Therefore, I find Mr. Krikke has not proven any overcharges, and I dismiss Mr. Krikke’s claim for a $400 refund for overbilling.

Completing Burley’s work - $376

21.   Mr. Krikke says he had to finish the work using his own truck. Mr. Krikke says it took him 5 hours to complete two round trips, including 30 minutes to load and unload each time. Mr. Krikke says that Burley would have been able to complete the work in 30 extra minutes had the movers not quit working and given up. However, Burley undisputedly charged by the hour so there is no argument that Burley billed Mr. Krikke for any time Mr. Krikke allegedly spent. Second, Mr. Krikke did not detail what work Burley failed to complete and provided no evidence in support. So, I dismiss this claim.

Picnic table - $400

22.   Mr. Krikke provided a photograph of a custom cedar picnic table and says Burley’s movers refused to move it. Mr. Krikke claims $400 for the picnic table left behind. The $400 claimed is based his own estimated cost of labour and materials to build the table. Burley says its movers ask if there is anything left to do before they leave the job site, and do a walk through to determine if anything is left behind that should be moved, and says Mr. Krikke admitted that he allowed “those items” to be left behind. Again, Mr. Krikke emailed Burley the day after the move, and did not indicate that Burley refused to move his picnic table, or failed to move any other items. As a result, I find it equally likely that Mr. Krikke chose to leave the picnic table behind. Based on the evidence, I find Mr. Krikke has not proved that Burley refused to move the picnic table. So, I dismiss this claim.

Damage and repairs - $980

23.   Mr. Krikke claims Burley damaged some of his belongings during the move. He claims a total of $980 for the costs to repair a damaged bed frame, clean a bunk bed and an upholstered chair, and re-upholster a bunk bed.

24.   Burley takes responsibility for any proven damage caused by its movers, but says Mr. Krikke did not provide any evidence of the alleged damage to “process a claim” under its protection plan. Burley says its protection plan only covers $0.60 per pound, and on that basis says it would have provided Mr. Krikke $237 if he had submitted a claim for the alleged damaged items listed above. A move confirmation email from Burley to Mr. Krikke indicated that its rates “include a basic coverage of $0.60 per pound per article at no charge”.

25.   To limit or exclude liability in a contract, a business must do so in clear and unambiguous terms. See Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., 1997 CanLII 307 (SCC), at paragraph 28. Although not binding, several other CRT decisions have found that Burley’s $0.60 per pound coverage does not limit Burley’s liability for damaged items, which I find persuasive. See 2 Burley Men Moving Ltd. v. Delmage, 2020 BCCRT 498, Wilson v. 2 Burley Men Moving Ltd., 2021 BCCRT 1133, and 2 Burley Men Moving Ltd. v. Iranzad, 2022 BCCRT 50. Here, I find that Burley did not clearly indicate its “coverage” limited its responsibility to $0.60 per pound for any items Burley damaged. Therefore, I find Burley is responsible for Mr. Krikke’s proven damages.

26.   Despite this, the only documentary evidence in support of Mr. Krikke’s damage claim are 3 photographs of an upholstered chair, that I find shows some staining. Mr. Krikke did not provide any documentary evidence to show damage to any other items. I find Mr. Krikke has only proven one upholstered chair was damaged. Mr. Krikke says it would cost $84 to clean the chair, but did not provide any quotes or other evidence to prove what it would cost to clean the chair, or any other items. However, I find his estimate not obviously unreasonable, and Burley did not dispute it. So, on a judgment basis, I find Mr. Krikke is entitled to $84 in damages for the upholstered chair. Mr. Krikke has not proved any other damage that would entitle him to further compensation, either above or below the $237 Burley says it would have paid for proven damage.

Hiring a skid steer operator to help the movers - $214

27.   Mr. Krikke said he hired a skid steer operator to help Burley’s movers, and claims reimbursement of $214. Burley does not dispute that Mr. Krikke hired a skid steer operator to help its movers, but says it did not ask Mr. Krikke to do so. Mr. Krikke did not address this claim in his submissions, or provide any documentary evidence that shows he paid anyone to assist Burley’s movers. There is also no evidence that there was ever any agreement between the parties that Burley would pay for the skid steer operator’s assistance, or that the skid steer operator was required as a result of any failure on Burley’s part to complete the move. I find this aspect of Mr. Krikke’s counterclaim unproven and I dismiss it.

Mr. Krikke’s time at $350/hr x 12 hours - $2,630

28.   As noted, Mr. Krikke claims $2,630 for his time spent on this dispute, although in later submissions he seeks $4,200 based on 12 hours at $350 per hour. Mr. Krikke was largely unsuccessful in his counterclaim. Even if he was successful, the CRT does not generally award compensation for time spent on a dispute, which is consistent with its rules against awarding reimbursement of legal fees except in extraordinary cases. I find this is not an extraordinary case. I dismiss Mr. Krikke’s claim for time spent on this dispute.

Summary

29.   I find Burley is entitled to payment of $1,056.12 for its unpaid moving services, less the $84 in damages for the chair. The net result is that I find Mr. Krikke must pay Burley $972.12 for its unpaid moving services.

Interest and CRT fees

30.   The Court Order Interest Act applies to the CRT. Burley is entitled to pre-judgment interest on the $972.12 from October 15, 2021, the date of the invoice to the date of this decision. This equals $14.16.

31.   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. Burley was successful in its claim, so I find Burley is entitled to reimbursement of $150 for its paid CRT fees. As Mr. Krikke was largely unsuccessful in his counterclaim, I dismiss his claim for reimbursement of paid CRT fees. I have dismissed Mr. Krikke’s claim for dispute-related expenses above. Burley did not claim any dispute-related expenses, so I award none.

ORDERS

32.   Within 30 days of the date of this order, I order Mr. Krikke to pay Burley a total of $1,136.28, broken down as follows:

a.    $972.12 in debt,

b.    $14.16 in pre-judgment interest under the Court Order Interest Act, and

c.    $150 in CRT fees.

33.   Burley is entitled to post-judgment interest, as applicable.

34.   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.