Date Issued: March 8, 2023

File: SC-2022-004720

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Stovold v. Masila, 2023 BCCRT 193

Between:

AMANDA STOVOLD

Applicant

And:

MAUREEN BEVERLY MASILA

Respondent

REASONS FOR DECISION
Tribunal Member:	Megan Stewart

INTRODUCTION

1.      The applicant, Amanda Stovold, ordered a custom human hair topper system (hairpiece or small wig) from the respondent, Maureen Beverly Masila. Mrs. Stovold says the topper was of poor quality and not what she asked for, so she returned it for a replacement. She says the replacement topper was also of poor quality, so she requested a refund. Mrs. Stovold says Miss Masila refused her refund request and blocked all means of contacting her. Mrs. Stovold asks for reimbursement of $850 for the topper’s purchase price.

2.      Miss Masila says she replaced the first topper as a goodwill gesture, although she disagrees it was of poor quality. She says when she gave Mrs. Stovold the replacement topper, Mrs. Stovold was pleased with it. However, she says Mrs. Stovold then altered the topper, damaging it in the process. So, Miss Masila says she owes Mrs. Stovold nothing.

3.      Both parties are 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.

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. 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.

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.

8.      I was unable to open 3 pieces of Miss Masila’s evidence, so through CRT staff I asked her to resubmit them and she did so. Mrs. Stovold was provided an opportunity to review and comment on this evidence, which she did. At the same time, Mrs. Stovold submitted 3 additional pieces of evidence, 2 of which were duplicates of evidence already provided. Miss Masila was provided a final opportunity to comment on Mrs. Stovold’s new evidence and she did so. Her final submission included embedded pictures and she also submitted 7 additional pictures. The embedded pictures and the 7 additional pictures were all duplicates, so I find it was not procedurally unfair to proceed with this decision without seeking additional submissions from Mrs. Stovold.

ISSUE

9.      The issue in this dispute is whether Miss Masila breached the parties’ contract by providing a poor-quality hair topper and if so, what the appropriate remedy is.

EVIDENCE AND ANALYSIS

10.   In a civil proceeding like this one, the applicant, Mrs. Stovold, 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 the evidence and argument that I find relevant to provide context for my decision.

11.   I begin with the undisputed facts. In March 2022, Mrs. Stovold responded to Miss Masila’s Facebook ad for quality, handmade human hair pieces. There are no messages in evidence describing the hair topper Mrs. Stovold wanted Miss Masila to make her before Mrs. Stovold placed her order. However, Mrs. Stovold says she sent Miss Masila photos and examples of past toppers she had ordered, and Miss Masila submitted a picture she says Mrs. Stovold gave her as “inspiration” for the topper. The parties did not have a written contract.

12.   However, the parties submitted identical copies of the paid topper invoice, which includes the following product description: “7*5 topper natural blonde, PU Base, 18 inches.” I understand this means the topper would have a 7 by 5 inch polyurethane base with 18 inch long natural blonde hair. Though not specified in the invoice, based on their submissions and evidence I find the parties agreed the topper would be made using human hair. The invoice shows Miss Masila gave Mrs. Stovold a $100 discount on the $950 price, which was undisputedly for a delay in delivering the topper. I note the invoice is from Maselle Luxury, which I infer is Miss Masila’s business name.

13.   Mrs. Stovold says she emphasized to Miss Masila the importance of a having a full-density topper. For her part, Miss Masila says she agreed to create a custom 90-gram topper, and that she ended up using 200 grams of hair for the replacement topper. The invoice does not refer to density or volume of the hair topper, or to how much hair Miss Masila would use. Neither party submitted evidence that shows they agreed on how thick the topper would be or how much hair Miss Masila would use. So, I find the parties agreed Miss Masila would make Mrs. Stovold a human hair topper as described in the invoice, with no specification about hair density or weight.

14.   Upon collecting the first hair topper on April 29, 2022, Mrs. Stovold says she was immediately concerned about its lack of density. Text messages between the parties show she raised this and other issues with Miss Masila, who agreed to make her a replacement at no additional cost. Miss Masila says Mrs. Stovold collected the replacement topper on July 11, 2022 and was extremely pleased with it. However, the following day Mrs. Stovold messaged Miss Masila about alleged poor hair quality and requested a refund.

15.   Based on pictures of the replacement topper before Mrs. Stovold took possession of it, I find Miss Masila created a hair topper that reflected the invoice’s terms. Neither Mrs. Stovold’s evidence nor her arguments show she raised concerns about the replacement topper’s density or was dissatisfied with this aspect of it.

16.   But what about the topper’s quality more generally? Under section 18(b) of the Sale of Goods Act (SGA), if a buyer purchases goods by description from a seller who deals in goods of that description, there is an implied condition that the goods are of “merchantable quality.” The SGA does not define “merchantable quality”. In Clayton v. North Shore Driving School et al., 2017 BCPC 198 at paragraph 100, the court noted that based on a review of the case law, it is not possible to formulate an all-purpose definition of the term. Rather, the concept of merchantability is flexible, and requires the goods to be of a quality reasonably expected, having regard to all the circumstances of the case.

17.   As it is undisputed Mrs. Stovold bought the custom-made topper from Miss Masila online and paid $450 towards the purchase price before receiving it, I find she bought the topper by description. I also find Miss Masila is a seller who deals in hair toppers, given her undisputed Facebook ad description.

18.   I turn to the question of whether the replacement hair topper was of “merchantable quality.” The parties submitted pictures of the replacement topper. In some pictures, the topper appears sleek and styled, in others it appears dry and frizzy.

19.   The parties also each submitted statements about the topper’s quality from licensed hairstylists who indicated they specialize in hair extensions and hair pieces. Under the CRT’s rules, I find both hairstylists are qualified to give expert opinion evidence about a hair topper’s quality. Unsurprisingly, the hairstylists’ opinions differ.

20.   Mrs. Stovold’s expert, Cherokee Ens, said the hair topper seemed of “mediocre quality”, felt rough, stretchy and brittle and looked frizzy, and had a “plastic or a coating of something” on it. I infer from this description that Cherokee Ens saw the hair topper in person. They did not provide an opinion on whether the topper had been chemically processed or lightened, and whether this could have affected the topper’s quality. Cherokee Ens also said the inside of the cap where the hair attaches was “low grade quality” and there were copious amounts of glue on the outside of the cap which had leaked onto the surrounding hair, compromising it. Cherokee Ens said they “guarantee” the hair was not what Miss Masila claimed it was and was “far from” the quality a human hair piece should be.

21.   Miss Masila’s expert, Barbara Dziedzic, said the hair topper appeared to have been “chemically lightened” and that “the pictures provided show more than just a simple ‘wash and dry’”, which is all Mrs. Stovold said she did to the topper. I note Barbara Dziedzic referred only to having seen pictures and not having inspected the topper in person. Though Miss Masila asserts Barbara Dziedzic saw the replacement hair topper in person, Barbara Dziedzic’s statement only refers to pictures of it, so I find they relied on pictures in providing their opinion.

22.   On balance, I prefer Cherokee Ens’s expert opinion to Barbara Dziedzic’s. This is because Cherokee Ens saw the hair topper in person and because their statement specifically describes what they saw as the hair topper’s quality issues. On the other hand, Barbara Dziedzic’s statement speaks more broadly to damage that can be caused to hair pieces in general from chemical processing and heat application. Barbara Dziedzic’s statement says very little about this particular hair topper’s quality. Rather, they refer to human hair they purchased from Miss Masila in the past being “authentic human hair and durable.”

23.   That being said, I find Cherokee Ens’s expert evidence insufficient to prove the replacement topper was not of merchantable quality for the following 2 reasons.

24.   First, I find it likely Cherokee Ens’s expert evidence was about the first topper and not the replacement. I say this because it referred to the hair having “plastic or a coating” on it. Mrs. Stovold raised this issue about the first topper but not the replacement topper. Also, Cherokee Ens’s statement describes glue leaking onto the hair. Again, Mrs. Stovold specifically mentioned this problem with the first topper but not with the replacement. She points to a picture she submitted of glue seeping onto the hair, but I find this unspecified picture is of the first topper and not of the replacement. My conclusion is based on the fact that in pictures of the first topper, Mrs. Stovold is wearing light-coloured nail polish, and in a picture of the replacement topper she is wearing metallic-coloured nail polish. The unspecified picture showing seeping glue shows a fingernail with the same light-coloured nail polish, so I conclude it is a picture of the first topper.

25.   Second, Miss Masila provided screenshots of the replacement topper advertised for sale by Mrs. Stovold in October 2022, which Mrs. Stovold does not dispute. I acknowledge the limits of not seeing the topper in person, but I find Mrs. Stovold’s ad pictures show it looking significantly different to the “poor quality” replacement hair topper in pictures Mrs. Stovold took shortly after acquiring it. As it appears in Mrs. Stovold’s ad, I find the replacement topper is coloured, styled and not frizzy, with no visible signs of leaking glue or other deficiency. In short, it appears of merchantable quality.

26.   Further, I find the fact that Mrs. Stovold admits to having posted the topper for sale directly contradicts her assertion it was “completely unwearable, or re-sellable” and “garbage”. The ad does not indicate the topper is priced to reflect its quality, nor does it suggest it is only fit for some purpose other than as a hair topper.

27.   In these circumstances, I find Mrs. Stovold has not proven the hair topper was not of merchantable quality, and that therefore Miss Masila breached the parties’ contract. So, I dismiss Mrs. Stovold’s claim for reimbursement.

28.   Under section 49 of the CRTA and CRT rules, a successful party is generally entitled to recover their CRT fees and reasonable dispute-related expenses. Miss Masila was successful but did not pay CRT fees, and neither party claimed dispute-related expenses. As Mrs. Stovold was unsuccessful, I dismiss her claim for reimbursement of CRT fees.

ORDER

29.   I dismiss Mrs. Stovold’s claims and this dispute.