Date Issued: February 14, 2023

File: SC-2022-003198

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Massignani v. Brule, 2023 BCCRT 138

Between:

NANCY MASSIGNANI

Applicant

And:

CHRISTIAN BRULE

Respondent

REASONS FOR DECISION
Tribunal Member:	Leah Volkers

INTRODUCTION

1.      This dispute is about investment losses. The applicant, Nancy Massignani, says the respondent, Christian Brule, offered to manage her Questrade account and began doing so in May 2020. Ms. Massignani says contrary to their verbal agreement, Mr. Brule invested in “the risky options market” and lost $4,315. Ms. Massignani also says Mr. Brule agreed to reimburse her for her investment losses, and has already paid her $3,300. Ms. Massignani claims $1,015.78 for the remaining alleged investment losses.

2.      Mr. Brule says he only agreed to repay Ms. Massignani $4,000 for her investment losses, which he says he has done. He says he does not owe her anything further.

3.      The parties are each 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, both parties in this dispute call into question the credibility, or truthfulness, of the other. The credibility of interested 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. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. 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. I also note that in Yas v. Pope, 2018 BCSC 282, at paragraphs 32 to 38, the British Columbia Supreme Court recognized the CRT’s process and found that oral hearings are not necessarily required where credibility is an issue.

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.

Late evidence and further submissions

8.      Ms. Massignani provided late evidence in this dispute, after the parties had provided submissions. I find the late evidence consists of Ms. Massignani’s own statement, as well as summaries of alleged discussions and articles about third parties’ respective financial dealings with Mr. Brule that I infer Ms. Massignani prepared. I find the summaries are not relevant to the issues in this dispute, because Mr. Brule does not dispute the investment losses or the agreement to repay some amount of investment losses. Even if this evidence was relevant, I would give it no weight because it is not possible for me to determine whether Ms. Massignani’s summaries of other people’s alleged interactions with Mr. Brule are accurate. Mr. Brule was also given the opportunity to review and provide submissions on the late evidence, and objected to it for several reasons. However, I find it unnecessary to further detail those reasons here because I find the summaries irrelevant and have not considered it in this decision. However, I admit Ms. Massignani’s own statement and have considered it in my analysis below.

9.      Mr. Brule also asked to provide late evidence after the parties had provided submissions, but did not submit any.

10.   Finally, Ms. Massignani also emailed CRT staff and asked whether she could provide further submissions after the Tribunal Decision Plan (TDP) was completed and this dispute was awaiting adjudication. CRT staff advised her the TDP was complete, and no further submissions would be accepted. CRT Rule 7.3 says that in the TDP, a party must respond to any arguments or evidence provided by other parties, and the CRT can direct the parties to complete any of the TDP steps by specific dates. Ms. Massignani was provided with an opportunity to provide initial submissions and then reply submissions after Mr. Brule provided submissions during the TDP process. The CRT’s mandate includes speed and efficiency. Allowing further late submissions, and an opportunity for Mr. Brule to respond, would unreasonably delay these proceedings. Therefore, I find it is not procedurally unfair to proceed to decide this dispute based on the submissions already provided, and without further submissions from Ms. Massignani.

ISSUE

11.   The issue in this dispute is to what extent, if any, Mr. Brule must pay Ms. Massignani $1,015.78 for her investment losses.

EVIDENCE AND ANALYSIS

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

13.   The parties do not dispute that Mr. Brule agreed to reimburse Ms. Massignani for some investment losses. However, they dispute the amount agreed to, and the amount Mr. Brule has already paid.

14.   Ms. Massignani says Mr. Brule has only paid her $3,300. Although Ms. Massignani initially claimed $1,050, in her submissions she says Mr. Brule owes her $1,015.78 as reimbursement for her outstanding investment losses.

15.   Mr. Brule says he has already paid $4,000, and owes Ms. Massignani nothing further. He says he paid Ms. Massignani $700 in cash, in addition to the $3,300 he undisputedly paid her by e-transfer.

16.   Ms. Massignani and Mr. Brule had no written contracts. However, a verbal contract is enforceable like a written contract, but it can be harder to prove. Similarly, when parties choose to deal in cash, it is harder to prove what amounts, if any, have been paid. The onus is generally on the payor to prove what they paid once the debt is proven.

What was the parties’ verbal agreement to repay investment losses?

17.   Ms. Massignani says the parties agreed that Mr. Brule would reimburse her for her investment losses, which she says total $4,315.78. Mr. Brule says he only agreed to reimburse Ms. Massignani a total of $4,000 for her losses.

18.   Ms. Massignani submitted several witness statements in support of her position, as well as personal character statements. However, most statements were based on what Ms. Massignani told the witnesses, and is hearsay. Further, none of the witness statements indicated that any of the witnesses were present when the parties agreed to reimbursement for investment losses. So, I find the witness statements unhelpful, and I have given them no weight.

19.   Mr. Brule refers to a letter sent to him from Ms. Massignani’s lawyer. The June 28, 2021 letter said that Mr. Brule lost $4,000 of Ms. Massignani’s funds, and that he had repaid $3,000. The letter demanded Mr. Brule immediately repay the remaining $1,000 owing. Ms. Massignani disputes this and says the $4,000 claimed in the letter was “rounded”. Text messages between the parties in May and June 2020 also show Mr. Brule referring to a $4,000 total, and Mr. Brule said he already gave Ms. Massignani “half back”. The text messages do not show the parties ever discussing a different amount owing. Based on the evidence, I find it equally likely that the parties agreed that Mr. Brule would reimburse Ms. Massignani $4,000 for her investment losses. So, I find Ms. Massignani has not proved that Mr. Brule agreed to reimburse her $4,315.78 for her investment losses. However, given that Mr. Brule does not dispute that he agreed to reimburse Ms. Massignani $4,000 for her investment losses, I find that was his obligation. I address below what amount remains outstanding.

How much has Mr. Brule paid Ms. Massignani for her investment losses?

20.   The parties do not dispute that Mr. Brule has already paid Ms. Massignani $3,300 for her investment losses. Mr. Brule’s bank statements show that he e-transferred Ms. Massignani $2,000 on June 1, 2020, and $1,300 on July 3, 2020.

21.   As noted, Mr. Brule says he paid the remaining $700 in cash. In support of this, he refers to his bank statements which show that he withdrew $600 on March 27, 2020, and $100 on June 16, 2020. Ms. Massignani disputes receiving any cash payments for her investment losses. As discussed above, Mr. Brule has the burden of proving the alleged cash payments. For the following reasons, I find that Mr. Brule has not done so.

22.   First, the investment losses undisputedly occurred in May 2020. This is supported by Ms. Massignani’s Questrade account statement. Mr. Brule’s $600 cash withdrawal was in March 2020, two months prior to the investment losses. Therefore, I find it unlikely that the $600 cash withdrawal was paid to Ms. Massignani for her investment losses. Further, in text messages between the parties on June 2 and June 11, 2020, Mr. Brule said he paid $2,000, and said this was “half back”. Text messages up to July 9, 2020 do not make any mention of a $600 or $100 cash payments. Finally, there are no receipts for the alleged cash payments. Mr. Brule says he did not get receipts for the alleged cash payments because he and Ms. Massignani had been in an “on and off” romantic relationship and he felt she could be trusted. I do not accept this explanation. Given the ongoing dispute between the parties as shown in the evidence and submissions, I find Mr. Brule has not reasonably explained why he did not get receipts for the alleged cash payments.

23.   On balance, I find Mr. Brule has not proved that he paid Ms. Massignani $700 in cash. Based on the evidence, I find Mr. Brule has only paid Ms. Massignani $3,300 of the $4,000 he agreed to reimburse her. Therefore, I order Mr. Brule to pay Ms. Massignani $700.

Interest, CRT fees and expenses

24.   The Court Order Interest Act applies to the CRT. Ms. Massignani is entitled to pre-judgment interest on the $700 debt from May 29, 2020, the date of Ms. Massignani’s May 2020 Questrade statement showing the investment losses, to the date of this decision, which I find reasonable in the circumstances. This equals $17.37.

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. Ms. Massignani was substantially successful in this dispute. I find Ms. Massignani is entitled to reimbursement of $75 in paid CRT fees.

26.   Ms. Massignani claims reimbursement of $1,444.48 in legal fees. She says the legal fees were incurred for consultations and sending a demand letter to Mr. Brule. I note that at least a portion of the claimed legal fees involve a separate legal matter with Mr. Brule that is not the subject of this dispute. In any event, I do not allow the claimed legal fees because the CRT’s rules say legal fees are only recoverable in extraordinary cases and this is not an extraordinary case.

ORDERS

27.   Within 30 days of the date of this order, I order Mr. Brule to pay Ms. Massignani a total of $792.37, broken down as follows:

a.    $700 in debt,

b.    $17.37 in pre-judgment interest under the Court Order Interest Act, and

c.    $75 in CRT fees.

28.   Ms. Massignani is entitled to post-judgment interest, as applicable.

29.   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.