Date Issued: January 31, 2023

File: SC-2022-004136

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Metasomaura LLC v. Wishpond Technologies Ltd.,
2023 BCCRT 86

Between:

METASOMAURA LLC

Applicant

And:

WISHPOND TECHNOLOGIES LTD.

Respondent

REASONS FOR DECISION
Tribunal Member:	Chad McCarthy

INTRODUCTION

1.      This dispute is about marketing services. The applicant, Metasomaura LLC (MS), agreed to a marketing services contract with the respondent, Wishpond Technologies Ltd. (WT). MS was dissatisfied with WT’s work, and claims $5,000 (without any breakdown) for incomplete tasks and duties under the contract, failure to achieve results, and mental and emotional burden. WT says it provided the services as agreed and did not promise the results MS identifies, so it owes nothing.

2.      In this dispute, MS is represented by its owner, Courtney Vazquez. An employee or principal represents WT.

JURISDICTION AND PROCEDURE

3.      These are the formal 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.      The parties’ contract included a term that any legal action or claim relating to the contract may be brought only in a BC court of law. The contract said the parties submitted to the BC courts’ exclusive jurisdiction, and waived any objections based on “improper venue or inconvenient forum.” The CRT is not a court. However, MS applied to the CRT for dispute resolution, and WT does not object to the CRT deciding this dispute, which I find is within the CRT’s small claims jurisdiction. So, I find the parties have waived the contract term requiring them to bring disputes in a BC court. I find this dispute is properly before the CRT.

ISSUE

8.      The issue in this dispute is whether WT provided the agreed marketing services to an adequate quality standard, and if not, whether it owes MS $5,000 in damages.

EVIDENCE AND ANALYSIS

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

10.   At the outset, as noted MS’s claim includes unspecified damages for “mental and emotional burden.” MS’s representative, Ms. Vazquez, says that WT caused her frustration, despair, anxiety, and mental and emotional stress. However, Ms. Vazquez is not a named applicant in this dispute. MS’s name ends in LLC, which I find means Limited Liability Corporation, and Ms. Vazquez identifies herself as its owner. So, I infer that MS is a corporation, and is a separate legal entity from Ms. Vazquez. I find MS has not proven that MS suffered a “mental and emotional burden,” or that a corporation such as MS could ever experience mental or emotional symptoms. So, I dismiss those aspects of MS’s damages claim. I address the remaining breach of contract allegations below.

11.   The parties undisputedly signed a marketing services contract between WT and “Metasomaura Health and Wellness.” Neither party disputes that the applicant, MS, did business under that name, or that the contract was between WT and MS. So, I find the contract was between the parties, and contained the following relevant terms:

a.    The contract began on the August 24, 2021 signing date, for an initial 12-month term. It would automatically renew for further 12-month terms unless a party gave written non-renewal notice to the other party at least 30 days before the present term expired.

b.    MS agreed to pay $700 in United States currency per month for, among other services, “up to 1 fully managed promotional campaign (contest or landing page) per 2 months.”

c.    MS could end the agreement anytime by paying an “early termination fee” calculated based on the amounts paid and owing under the contract.

12.   MS initially alleged that WT’s work failed to achieve the results MS expected, including to increase sales. However, MS admitted in its submissions that there was no guarantee of “success” in the contract. I find that although the contract implied WT would make reasonable efforts to pursue the agreed marketing activities, nothing in the contract guaranteed that WT’s services would generate any number of marketing “leads” or sales. Given that the contract did not require WT to produce a specific business outcome for MS, I find WT did not breach the contract by not producing such an outcome.

13.   Next, MS alleges that WT misled it about WT’s “ability, capacity, and focus.” However, I find the evidence before me, including the contract and party correspondence, does not show that WT had different abilities and capacities than it represented to MS, or that WT promised to provide a specific level of “focus,” which MS does not adequately explain.

14.   Next, MS alleged that WT’s work was of low quality, it communicated poorly, and it provided disorganized work summaries. However, MS also argued that this dispute was not about its dissatisfaction with WT’s performance, alleged wasted time and money, or an alleged sense of betrayal from working with WT. On balance, I find this apparently contrary argument is not sufficient to show that MS abandoned its allegations of poor work and services quality. So, I will now consider those arguments.

15.   MS identifies undisputed spelling mistakes in some marketing materials, and other allegedly flawed materials, as examples of WT’s allegedly poor work quality. I find the contract did not specifically require WT to provide a particular quality of work product, or a certain organization of work summaries or a method and frequency of communications. However, I find it was an implied contract term that WT’s work would be of reasonable quality for a professional marketing company in similar circumstances (see Lund v. Appleford Building Company Ltd. et al., 2017 BCPC 91 at paragraph 124). As the applicant alleging deficient work, MS bears the burden of proving that WT failed to perform the contracted work in a reasonably professional manner (see Absolute Industries Ltd. v. Harris, 2014 BCSC 287 at paragraph 61).

16.   I find that whether WT’s services and work product were of reasonable quality is a subject outside of ordinary knowledge and experience. I also find that the spelling mistakes and other alleged deficiencies among the submitted WT work appear to be minor. As a result, I find it is not obvious that such deficiencies fell below the required quality standard. So, I find expert evidence is required to prove whether WT’s work was not of reasonable quality in the circumstances (see Bergen v. Guliker, 2015 BCCA 283 at paragraph 124 and Schellenberg v. Wawanesa Mutual Insurance Company, 2019 BCSC 196 at paragraph 112).

17.   However, there is no expert evidence before me in this dispute. So, I find MS has not proven with required expert evidence that WT’s services were not of reasonable quality.

18.   I turn now to MS’s central argument, which is that it should receive damages as compensation for WT not providing the number of marketing “campaigns” promised in the contract. As noted, the contract said WT would execute “up to 1 fully managed promotional campaign (contest or landing page) per 2 months.” MS says this means it was entitled to receive 6 campaigns over 12 months, but it only received 2 “executed” campaigns and 1 “planned” campaign over 10 months. However, elsewhere in its submissions, MS says WT completed 2 fully executed campaigns and 3 landing pages in 10 months, without explaining why the landing pages were allegedly not campaigns (more on that below). MS says WT’s own evidence confirms MS’s allegations, but I find MS does not adequately identify that evidence.

19.   First, I find the contract does not say that WT was entitled to 1 campaign every 2 months. It says WT was entitled to “up to” 1 campaign per 2 months. I find this set a maximum limit on the number of campaigns WT would provide, and not a minimum.

20.   Even assuming that WT was required to produce 1 campaign every 2 months, I find that neither the contract nor any other submitted evidence explicitly defined what a “campaign” was, other than the “(contest or landing page)” examples in the contract. I find none of the submitted evidence directly excluded any particular marketing activities from qualifying as campaigns, even if they were not related to a contest or landing page.

21.   WT submitted a compilation of marketing activities it says it completed for MS. I accept that WT completed those activities because there is insufficient contrary evidence. I find the evidence shows that WT provided landing pages, email blasts, pop ups, copies, and imagery and ads for 2 different social media platforms. WT undisputedly provided the contracted marketing services for both MS, which is a spa brand, and SA, which is a skin care brand under the same ownership. WT says that those brands required different marketing approaches, and MS admits that SA sold products and MS sold services.

22.   I find the marketing activity compilation showed that WT created at least 2 landing pages and 2 giveaway contests/promotions for the MS brand, and at least 1 landing page and 2 giveaway contests/promotions for the SA brand. I find that was a total of at least 7 campaigns under the contract. I find that was more than the 6 campaigns MS says WT was required to provide.

23.   MS also says that WT did not provide all of the materials for each campaign. Specifically, MS undisputedly provided 3^rd party marketing text for some campaigns, and provided a 3^rd party web browser widget program that WT could not integrate into its own services without some outside assistance. However, I find submitted correspondence shows MS voluntarily provided the 3^rd party marketing text to WT. Further, I find the contract did not say that WT could or would independently integrate any 3^rd party software into its services. So, I find WT did not breach the contract by using 3^rd party text at MS’s request, or because it needed integration assistance with the 3^rd party widget.

24.   In the circumstances, I find the submitted materials show WT likely performed more than 6 different marketing campaigns over less than 12 months. I find the evidence before me does not demonstrate that WT left any of those activities significantly incomplete, or failed to meet a required professional standard. So, I find WT did not breach the contract by not providing the required number of campaigns to MS.

25.   Finally, WT says it was happy to cancel the contract without providing a refund, but does not comment on whether that included a cancellation fee. MS says in its final reply submissions that it cancelled the contract on July 15, 2022, just over 1 month before the first renewal date, and paid WT a $270 cancellation fee. I find it is unclear whether MS claims a refund of the alleged $270 cancellation fee as part of its damages claim. But I find nothing turns on that, because there is no documentary evidence before me showing that MS paid WT the alleged cancellation fee in any event. Further, nothing before me shows there were any barriers to MS providing such payment evidence. So, I find MS has not met is burden of proving cancellation fee damages.

26.   For all the above reasons, I dismiss MS’s claim for $5,000.

CRT Fees and Expenses

27.   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. Here, I see no reason not to follow that general rule. MS was unsuccessful in its claim, but WT paid no CRT fees. Neither party claimed CRT dispute-related expenses. So, I order no reimbursements.

ORDER

28.   I dismiss MS’s claim, and this dispute.