Date Issued: March 21, 2023

File: SC-2022-004905

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Astete v. 2 Burley Men Moving Ltd., 2023 BCCRT 234

BETWEEN:

JOSE ASTETE

APPLICANT

AND:

2 BURLEY MEN MOVING LTD.

 

RESPONDENT

 

REASONS FOR DECISION
Tribunal Member:	Andrea Ritchie, Vice Chair

INTRODUCTION

1.      This dispute is about moving services. The applicant, Jose Astete, hired the respondent moving company, 2 Burley Men Moving Ltd., for a residential move.

2.      The applicant says the respondent damaged their fridge. They claim a total of $1,237.73, the amount they say it will cost to repair the damage.

3.      The respondent does not deny its movers caused the damage, but says the applicant agreed to a contractual term limiting its liability to $0.60 per pound for the damaged item. The respondent agrees to pay the applicant a total of $210.

4.      The applicant is self-represented. The respondent is represented by an authorized employee.

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 parties to a dispute that will likely continue after the dispute resolution process has ended.

6.      Section 39 of the CRTA says that 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 that 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 how much the respondent must pay the applicant for the undisputedly damaged fridge.

EVIDENCE AND ANALYSIS

10.   In a civil claim such as this, the applicant must prove their claims on a balance of probabilities (meaning “more likely than not”). While I have read all of the parties’ submitted evidence and arguments, I have only addressed those necessary to explain my decision.

11.   As noted, it is undisputed that the respondent damaged the applicant’s fridge. The applicant says the respondent’s movers loaded the fridge from their home onto the truck using a flat dolly. They say the movers left the fridge on the wheeled dolly during transit, and the fridge hit other items in the truck and tipped over, causing the damage.

12.   Also as noted, the respondent does not deny it owes the applicant some compensation for the damaged fridge, although it disagrees about how much. The respondent says the applicant’s claim is limited by the parties’ contract.

13.   The parties’ contract is 2 pages. On the front page, the applicant undisputedly signed where it says “I have read, understood and accept terms and conditions as detailed on reverse”. The 2nd page is titled “Terms & Conditions” and states if a customer does not choose a “protection plan”, the carrier’s liability for damaged belongings is limited to $0.60 per lb, per item, for a maximum of $60 per 100 lbs.

14.   The respondent argues the applicant was aware of the disclaimer and the protection plan, and knew they were not entitled to cash value or replacement cost. The applicant does not deny being told about the disclaimer and protection plan, but says they are not looking for cash replacement of the fridge, just the amount it will cost to have it repaired.

15.   Previous CRT decisions have dealt with limitation clauses found in the respondent’s contracts with other customers. Those prior decisions have found both in favour of upholding the limitation, and the opposite, but often finding the contract’s clause was ambiguous. However, I find the contract’s wording in this particular contract is different than those considered in prior decisions. So, I find the prior CRT decisions have limited relevance to the specific dispute before me.

16.   In this dispute, I find the contract clearly lays out that, in the absence of a chosen protection plan, the respondent’s liability for damaged items is limited to $60 per 100 lbs, per item. There is no evidence the applicant selected any other protection plan. So, I find the limitation is binding.

17.   The respondent says they offered to pay the applicant $210, based on an estimated fridge weight of 350 lbs. Neither party provided any further information about the fridge’s weight, so I accept 350 lbs is a reasonable estimate. Based on the contract’s terms, I find the respondent must pay the applicant $210 for the fridge’s damage.

18.   The Court Order Interest Act applies to the CRT. However, in their Dispute Notice, the applicant specifically said they were not claiming pre-judgment interest, so I make no award.

19.   Under section 49 of the CRTA, and the CRT rules, a successful party is generally entitled to the recovery of their tribunal fees and dispute-related expenses. The respondent says it offered the applicant the full $210 before this dispute started, which the applicant did not accept. As I have found the applicant is only entitled to the amount already offered by the respondent before they started this dispute, I find the applicant is not entitled to reimbursement of their tribunal fees.

ORDERS

20.   Within 30 days of the date of this decision, I order the respondent to pay the applicant a total of $210 as compensation for property damage.

21.   The applicant is also entitled to post-judgment interest, under the Court Order Interest Act.

22.   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.