Date Issued: March 10, 2023

File: SC-2022-003881

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Barwari v. Burns, 2023 BCCRT 201

Between:

HAVAL BARWARI

Applicant

And:

ALEXANDER BURNS (Doing Business As PALM DADDY)

Respondent

REASONS FOR DECISION
Tribunal Member:	David Jiang

INTRODUCTION

1.      This dispute is about the sale of 3 palm trees. The applicant, Haval Barwari, purchased the trees from the respondent, Alexander Burns (Doing Business As Palm Daddy). Mr. Barwari says the trees died several months later because they were deficient and because Mr. Burns planted them incorrectly. Mr. Barwari claims a full refund of $4,500.

2.      Mr. Burns denies liability. He says the trees likely died from either natural causes or improper care by Mr. Barwari. He also says he provided no warranties or guarantees about the trees.

3.      The parties are self-represented.

4.      For the reasons that follow, I dismiss Mr. Barwari’s claims.

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. 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.

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 whether Mr. Burns breached the contract by either supplying deficient trees or planting them incorrectly.

BACKGROUND, EVIDENCE AND ANALYSIS

10.   In a civil proceeding like this one, Mr. Barwari as the applicant must prove his claims on a balance of probabilities. This means 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. Mr. Burns had the opportunity to provide evidence or submissions but chose not to. So, I have relied on Mr. Burns’ Dispute Response statements and his responses to a statement of facts.

11.   Based on the agreed statement of facts, Mr. Burns agreed to supply and plant 3 windmill palm trees measuring 8 feet in height. Mr. Barwari agreed to pay a fixed price of $4,500. The parties did not discuss or agree on any specific terms about how to cancel the contract or obtain a refund.

12.   I find the agreement was largely verbal as there is no indication that the parties documented it, such as through a contract, invoice, or estimate. However, Mr. Barwari also provided screenshots of Mr. Burns’ website. It says that planting costs include ground preparation, fertilizer, and bone meal. Mr. Burns did not dispute the accuracy of the screenshots or deny that the parties’ agreement included this term. So, I find Mr. Burns was obligated to prepare the ground and provide fertilizer and bone meal when planting the 3 trees.

13.   Based on Mr. Barwari’s undisputed submissions, I also find the following. The parties entered into the contract in spring 2021. Mr. Burns delivered and planted the 3 trees in late August 2021. In winter 2021, all 3 trees died. I find this supported by Mr. Barwari’s pictures of 3 stumps. I find that they likely died, and after this Mr. Barwari cut them.

Did Mr. Burns breach the contract by supplying deficient trees or planting them incorrectly?

14.   The Sale of Goods Act (SGA) applies to the sale of goods like the 3 trees in this dispute. Section 18 of the SGA sets out 3 implied warranties that apply to sales like this one where the seller is in the business of supplying the goods sold: 1) saleability or merchantability, 2) fitness for purpose, and 3) reasonable durability.

15.   Our courts have previously applied the SGA to the supply, planting, and maintenance of trees. In Kordyban v. Windmill Orchards Ltd., 2000 BCSC 348, the court held that the purchased apple trees were not reasonably fit for their purpose of providing apples. This is because they were afflicted with European Canker.

16.   As noted above, Mr. Barwari bears the burden to prove his claim. I find that to show a breach of the SGA, Mr. Barwari must show that the trees died because they were deficient or planted negligently by Mr. Burns. This is because Mr. Burns essentially says the trees were of merchantable quality, fit for their purposes, or reasonably durable when they were sold and planted, and they died from inappropriate care.

17.   The CRT has previously found that an assessment of a tree’s overall health is technical, beyond common understanding, and requires expert evidence to prove. See Buxton v. Velsen Homes Ltd., 2021 BCCRT 992 at paragraph 14, citing Bergen v. Guliker, 2015 BCCA 283. CRT decisions are not binding, but I find similar reasoning applies here. In Kordyban, the court had the benefit of expert opinions to consider. I find that proving the trees died because Mr. Burns provided deficient trees or planted them negligently requires expert evidence to prove.

18.   Mr. Barwari said that he spoke to arborists and palm tree suppliers. He said that they advised that Mr. Burns supplied deficient trees or planted the 3 trees incorrectly. Mr. Barwari only summarized their statements in submissions, so it is hearsay. While the CRT has discretion to admit hearsay, I decline to do so here because it is about the central issue in this dispute. See, for example, The Owners, Strata Plan VR 824 v. Malbanan, 2023 BCCRT 166, at paragraph 14. Further, Mr. Barwari wrote the summary and he is not neutral. So, I find this is another reason not to accept it as expert evidence.

19.   Mr. Barwari says he did not provide expert evidence because all arborists he spoke to were unavailable until March 2023, and 1 of the arborists quoted at least $2,000 to provide an opinion. I acknowledge these difficulties, but Mr. Barwari must still provide the necessary evidence to prove his claim. He also did not request an extension of time to provide more evidence.

20.   I find that Mr. Barwari’s other evidence fall short of showing the trees were deficient or that Mr. Burns planted them negligently. Mr. Barwari provided 2 screenshots from different websites. The first says that experts recommend planting windmill palms in the spring or early summer. In the second, the author recommended planting windmill palms in the spring. Mr. Barwari points out that, contrary to the website, Mr. Burns planted the trees in late summer. However, the websites do not comment on whether planting the trees in late summer would be fatal to them. They do not explain what killed the 3 trees in this dispute. I also find the screenshots are not expert evidence because the authors’ qualifications are not stated as required by CRT rule 8.3(2). So, I place no weight on the website information.

21.   Next, Mr. Barwari’s undisputed submission is that Mr. Burns did not protect the trees in burlap during transport. However, there is no evidence about what impact this has on a palm tree’s health. So, I find nothing turns on the burlap.

22.   Mr. Barwari says the trees were deficient or incorrectly planted because, around the same time, a local gardener supplied and installed 2 smaller windmill palm trees. I find this does not, by itself, explain the cause of the 3 larger trees’ deaths or prove they were planted negligently.

23.   Finally, Mr. Barwari says Mr. Burns did not use fertilizer or bonemeal as specified on the website. This submission is undisputed, so I find Mr. Burns breached this term of the agreement. So, I find Mr. Barwari is entitled to damages for this breach. However, there is no evidence that shows a failure to provide the fertilizer or bonemeal would likely lead to the death of the palm trees. There is also no evidence about the value of the fertilizer or bonemeal. So, on a judgment basis, I order Mr. Burns to pay Mr. Barwari $100 for failing to provide these items during the planting.

24.   The Court Order Interest Act applies to the CRT. Mr. Barwari waives any claim to interest, so I award none.

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. I see no reason in this case not to follow that general rule. Mr. Barwari proved a breach of contract, so I find him entitled to partial reimbursement of $87.50 in CRT fees. The parties did not claim any specific dispute-related expenses.

ORDERS

26.   Within 30 days of the date of this order, I order Mr. Burns to pay Mr. Barwari a total of $187.50, broken down as follows:

a.    $100 as damages for breach of contract,

b.    $87.50 in CRT fees.

27.   Mr. Barwari is entitled to post-judgment interest, as applicable.

28.   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.