Date Issued: May 19, 2023

Files: SC-2022-005037 and SC-CC-2022-005167

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Armstrong v. Chan, 2023 BCCRT 423

Between:

THOMAS ARMSTRONG

Applicant

And:

POK LUN DOMINIC CHAN also known as DOMINIC CHAN

Respondent

And:

THOMAS ARMSTRONG

Respondent by counterclaim

REASONS FOR DECISION
Tribunal Member:	David Jiang

INTRODUCTION

1.      These 2 linked disputes are about wedding videography services and a damaged video camera. They consist of a claim and counterclaim between the same parties and are about related facts, so I have issued 1 decision for both disputes.

2.      Thomas Armstrong is the applicant in dispute number SC-2022-005037 and the respondent by counterclaim in SC-2022-005167. Pok Lun Dominic Chan, also known as Dominic Chan, is the respondent in SC-2022-005037 and applicant by counterclaim in SC-2022-005167.

3.      Mr. Armstrong says that Mr. Chan hired him as a subcontractor videographer. He says Mr. Chan owes him $2,056.25 for an invoice balance. He claims the $2,056.25. Mr. Chan disagrees. He says that Mr. Armstrong conducted his work negligently by 1) damaging Mr. Chan’s video camera, 2) taking shaky and unwatchable footage, and 3) failing to focus on work during the wedding.

4.      Mr. Chan counterclaims the cost of repairing the video camera. He says Mr. Armstrong negligently allowed party lasers to damage the camera’s sensor. Mr. Chan seeks an order for payment of $2,020, which includes both repair costs and shipping fees. Mr. Armstrong denies liability. He says that, to the extent the lasers damaged the camera, this was an unforeseeable and faultless accident.

5.      The parties are self-represented.

6.      For the reasons that follow, I find only Mr. Armstrong has proven his claim.

JURISDICTION AND PROCEDURE

7.      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.

8.      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.

9.      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.

10.   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.

The Style of Cause

11.   In the Dispute Notice, Mr. Armstrong identified the respondent as “Pok Lun Dominic Chan”. In the counterclaim, Mr. Chan identified himself as “Dominic Chan”. It is undisputed that both names refer to the same individual and party in this dispute, and I have addressed this in the style of cause above.

Mr. Chan’s Reuploaded Evidence

12.   I asked CRT staff to contact Mr. Chan so that he could reupload certain files that would not open correctly. Mr. Chan did so. Mr. Armstrong had the opportunity to review the evidence and said he had nothing further to add. Mr. Chan did not reply to this comment. So, I considered this reuploaded evidence in my decision below.

ISSUES

13.   The issues in this dispute are as follows:

a.    Did Mr. Armstrong provide deficient videography services?

b.    Is Mr. Armstrong liable for damaging Mr. Chan’s camera?

c.    What are the appropriate remedies?

BACKGROUND, EVIDENCE AND ANALYSIS

14.   In a civil proceeding like this one, Mr. Armstrong and Mr. Chan must prove their respective claims and counterclaims 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. Both parties chose not to provide final reply submissions in their respective claims, though each had the opportunity to do so.

15.   The parties agree on the following facts. On September 28, 2021, the parties entered into a written contract. Mr. Armstrong agreed to act as the lead videographer for a wedding scheduled in June 2022. He contracted to provide the services to Mr. Chan’s business, Dominic Captures, rather than the wedding clients. One part of the contract refers to another person, MY, as the videographer, but I find this is clearly a typo.

16.   The written terms said the following. Mr. Chan agreed to pay Mr. Armstrong $75 hourly. He would also immediately pay Mr. Armstrong a $100 deposit to reserve his services. It is undisputed Mr. Chan did so. I will discuss the other key terms in my analysis below. The parties also verbally agreed that Mr. Armstrong would use Mr. Chan’s cameras and equipment to record the June 2022 wedding.

17.   The parties agree on the following. Mr. Armstrong filmed the wedding activities over the course of 5 days, for the dates of June 19 and 22 through 25, 2022. Mr. Armstrong delivered the video footage to Mr. Chan on June 25, 2022. He then invoiced Mr. Chan on June 28, 2022, for 28.75 hours of work at the hourly rate of $75 noted above, less the $100 deposit, for a total of $2,056.25. This equals the claim amount.

18.   The contract said that Mr. Armstrong’s fee was payable once he transferred all the raw unedited images and video to Mr. Chan. I find Mr. Armstrong had done so by the time he issued the invoice, so I find the invoice was immediately payable.

19.   Also on June 28, 2022, Mr. Chan texted Mr. Armstrong about the returned video camera. He said that he noticed a dead pixel on the camera’s sensor. Mr. Chan said it was likely caused by party lasers used at the wedding. Footage shows that at one point during the wedding, multiple lasers were used on a fogged and darkened dance floor. Mr. Chan refused to pay Mr. Armstrong until they agreed on a way to divide repairs for the video camera. Mr. Armstrong disagreed that he was liable and demanded immediate full payment for his work.

20.   Mr. Chan obtained a repair estimate from the camera’s manufacturer. It verified that the camera had a dead pixel in the middle of the screen, and that it required a new sensory assembly. The total repair estimate was $1,935.49. The estimate did not comment on the cause of the damage.

Issue #1. Did Mr. Armstrong provide deficient videography services?

21.   Mr. Chan alleges that Mr. Armstrong provided deficient services. He says Mr. Armstrong lacked the proper equipment. He also says he was at the wedding and observed Mr. Armstrong’s gross negligence. In particular, he alleges that Mr. Armstrong damaged the camera by directly filming the party lasers, took personal calls during the wedding, and took footage that was shaky, unwatchable, lacked audio, and ultimately unusable.

22.   I turn to the applicable law. When a contractor’s work is deficient, a customer may claim for damages, as Mr. Chan has done here. Mr. Chan bears the burden of proving any alleged deficiencies. See Balfor (Canada) Inc. v. Drescher, 2021 BCSC 2403 at paragraph 16, and Absolute Industries Ltd. v. Harris, 2014 BCSC 287.

23.   In general, expert evidence is required to prove a professional’s work was deficient or that it fell below a reasonably competent standard. However, expert evidence may not be necessary when the work is obviously substandard, or the deficiency relates to something non-technical. See Absolute Industries, and Schellenberg v. Wawanesa Mutual Insurance Company, 2019 BCSC 196.

24.   I will discuss the camera damage separately below. For the reasons that follow, I find it unproven that Mr. Armstrong’s work was otherwise substandard.

25.   First, Mr. Chan asked Armstrong to use his camera. So, I find Mr. Armstrong is blameless for not having or using his own camera for the wedding.

26.   Second, Mr. Chan provided numerous video clips and pictures as evidence. I agree that the clips show that some of Mr. Armstrong’s footage was shaky and lacked audio. Some of the video still images were also crooked or blurry. However, as noted above, Mr. Armstrong took footage over the course of 5 days and 28.75 hours. He was required to send all the raw, unedited footage to Mr. Chan. I find that some of the footage, perhaps even a considerable amount of it, was reasonably expected to be unusable. I find this insufficient to show that Mr. Armstrong’s work was substandard.

27.   My conclusion is strengthened by the absence of any complaints by the wedding clients for the video sessions, A and P. Notably, on November 9, 2021, P texted Mr. Armstrong directly to offer work on a separate event. P asked Mr. Armstrong to put together a slideshow. So, I find it likely that Mr. Armstrong provided Mr. Chan with a satisfactory amount of usable footage under the contract. Similarly, I find it unlikely that P would offer Mr. Armstrong work if Mr. Armstrong was inattentive or signficantly absent during the wedding dates.

28.   To the extent that Mr. Chan alleges that Mr. Armstrong breached professional standards, I find this requires expert evidence. This is because I do not find it obvious that Mr. Armstrong’s work was deficient. Mr. Chan provided short statements from his hired video editor, AD, and a second hired photographer, R. Combined, R and AD only provided 3 sentences as evidence. AD said that “many of the footage” from the wedding was unusable, shaky, and lacked audio. R said they noticed that Mr. Armstrong was “absent in the reception”. I find I am unable to draw any useful conclusions from these statements. They provide no context or opinion on whether Mr. Armstrong acted unprofessionally or provided substandard services. So, I do not find them to be expert evidence and put little weight on the statements in any event.

29.   Mr. Chan also says he personally saw Mr. Armstrong take several personal calls during the wedding and was absent at a critical moment of dancing by the family members. I find this submission unpersuasive because of the lack of complaints by the wedding clients and because Mr. Chan is not a neutral party.

30.   Mr. Chan also said that Mr. Armstrong was in a poor mental state on the first day of the wedding because of his personal problems. Even if true, I find this irrelevant to the dispute.

31.   For all those reasons, I find Mr. Armstrong provided the contracted services and should be paid in full, unless I find him liable for damaging the camera.

Issue #2. Is Mr. Armstrong liable for damaging Mr. Chan’s camera?

32.   In discussing liability for the camera, both parties referred to the contract section about limitations of liability. Mr. Armstrong says he is not liable under the contract and Mr. Chan disagrees. So, I will begin my analysis there.

33.   The contract said that Mr. Armstrong agreed to perform to the best of their ability for the assignment, and would be liable for any loss or other financial liability suffered by Mr. Chan due to failure to perform, other than through a documented medical emergency or an “Act of Nature”. The latter term is undefined. I find it likely refers to natural disasters or other such events that are inapplicable here. The contract also said that Mr. Chan was not liable for any loss or damage to Mr. Armstrong’s equipment.

34.   Overall, I find the contract is not determinative. Its language does not exclude Mr. Armstrong from liability for Mr. Chan’s camera. Similarly, I find that Mr. Armstrong performed the contract, so I do not find him liable for “failure to perform”.

35.   The contract also had an “expectations” section that said Mr. Armstrong had to be “comfortable in all lighting scenarios”. However, I find this wording is insufficiently precise to, for example, prohibit Mr. Armstrong from filming party lasers.

36.   As the contract does not cover the specific circumstances of this dispute, I turn to Mr. Chan’s allegation of negligence. As stated in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, the test for negligence requires Mr. Chan to prove 4 things: 1) Mr. Armstrong owed Mr. Chan a duty of care, 2) Mr. Armstrong breached the standard of care, 3) Mr. Chan sustained a loss, and 4) the loss was caused by Mr. Armstrong’s breach.

37.   I find that Mr. Armstrong owed Mr. Chan a duty of care to take reasonable care of the loaned equipment. As to the standard of care, Mr. Chan says that a videographer like Mr. Armstrong should have known not to point the video camera at the party lasers. Mr. Chan also says Mr. Armstrong’s breach caused the dead pixel in his camera.

38.   I find that the applicable standard and whether filming party lasers caused the dead pixel are both technical matters that require expert evidence. So, I find that Mr. Chan must provide expert evidence to show Mr. Armstrong breached the standard of care by filming the lasers, and this caused the camera damage. Mr. Chan did not do so. The camera manufacturer and witnesses provided no opinion on whether the party lasers caused the camera damage. So, I find the allegations of negligence unproven.

39.   To the extent that Mr. Chan says that this should be a claim about deficient service, I find the result would be the same. I find this also requires expert evidence to prove.

40.   While not necessary for my decision, I note that the submissions and witness statement indicate that Mr. Chan and R were present at the wedding. Mr. Chan refers to being present for the dancing, and the videos show the party lasers were used at this time. There is no indication Mr. Chan or R warned Mr. Armstrong about filming the party lasers. I find this consistent with Mr. Armstrong’s submission that he is not liable and did not breach the applicable standard of care.

41.   Given the above, I order Mr. Chan to pay Mr. Armstrong the balance owing under the June 28, 2022 invoice. This equals Mr. Armstrong’s claim amount of $2,056.25. I dismiss Mr. Chan’s counterclaim.

42.   The Court Order Interest Act applies to the CRT. Mr. Armstrong is entitled to pre-judgment interest on the debt of $2,056.25 from June 28, 2022, the invoice date, to the date of this decision. This equals $37.89.

43.   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. I find Mr. Armstrong is entitled to reimbursement of $125 in CRT fees. The parties did not claim any dispute-related expenses.

ORDERS

44.   Within 30 days of the date of this order, I order Mr. Chan to pay Mr. Armstrong a total of $2,219.14, broken down as follows:

a.    $2,056.25 in debt,

b.    $37.89 in pre-judgment interest under the Court Order Interest Act, and

c.    $125 in CRT fees.

45.   Mr. Armstrong is entitled to post-judgment interest, as applicable.

46.   I dismiss Mr. Chan’s counterclaims.

 

47.   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.