Date Issued: June 12, 2023

File: SC-2022-006173

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Tang v. NewSmile Technology Canada Inc., 2023 BCCRT 499

Between:

ALFONSO TANG

Applicant

And:

NEWSMILE TECHNOLOGY CANADA INC.

Respondent

REASONS FOR DECISION
Tribunal Member:	Nav Shukla

INTRODUCTION

1.      The applicant, Alfonso Tang, claims a $1,900 refund from the respondent, NewSmile Technology Canada Inc. (NewSmile), for the amount he says he paid for teeth aligners that he did not receive. Mr. Tang also alleges that NewSmile made certain promises about “IPR”, which according to NewSmile is the practice of tooth shaving before clear aligner treatment, that were unfulfilled.

2.      NewSmile denies Mr. Tang is entitled to any refund. It says Mr. Tang did not request a refund until after the 5-month refund period that applied to his purchase had expired. NewSmile also denies making any promises about IPR.

3.      Mr. Tang is self-represented. NewSmile is represented by its operations manager.

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. 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 note the parties both consented to disclosure of their CRT facilitation discussions, which are otherwise kept confidential. NewSmile provided a document marked “Without Prejudice” that I infer contains some facilitation discussions. Based on the parties’ agreement, I have considered the disclosed facilitation discussions in making my decision below.

ISSUE

9.      The issue in this dispute is whether Mr. Tang is entitled to a refund of $1,900, or some other amount, from NewSmile.

EVIDENCE AND ANALYSIS

10.   As the applicant in this civil proceeding, Mr. Tang must prove his claims on a balance of probabilities (meaning “more likely than not”). I have considered all the parties’ submitted evidence and argument but refer only to what I find relevant to provide context for my decision.

11.   In a Statement of Facts, the parties agree:

a.    On September 9, 2020, Mr. Tang purchased a treatment plan from NewSmile’s website for $1,849.99.

b.    The $1,849.99 price included an impression kit, treatment previews and aligners.

c.    NewSmile sent treatment previews to Mr. Tang for approval, but Mr. Tang did not approve any of the treatment previews and NewSmile did not make the aligners.

12.   The parties also agree that NewSmile has a refund policy that says no refunds will be allowed after 5 months of the date of purchase. NewSmile says its refund policy can be found at the footer of each webpage on its website and that Mr. Tang would have had to agree to its terms and conditions before completing his purchase. Mr. Tang does not dispute that this refund policy applied to his purchase. However, the parties disagree about whether Mr. Tang made a refund request within the 5-month refund period.

13.   Mr. Tang says that he first made a refund request on November 25, 2020 during a telephone call with S, a NewSmile employee. Mr. Tang says that during this phone call, S told him a refund was not possible. NewSmile denies that Mr. Tang asked for a refund on November 25, 2020 or at any point during the 5-month refund period which undisputedly ended on February 9, 2021. Rather, NewSmile says that Mr. Tang only requested a price match on November 25, 2020 during NewSmile’s Black Friday sale.

Is Mr. Tang entitled to a refund?

14.   As noted above, the burden is on Mr. Tang to prove his claims. So, Mr. Tang must prove, on a balance of probabilities, that he requested a refund before February 9, 2021. As detailed below, I find it unlikely based on the evidence before me that Mr. Tang requested a refund on November 25, 2020 or at any point during the applicable 5-month refund period.

15.   The evidence shows that after Mr. Tang purchased the treatment plan on September 9, 2020, NewSmile sent Mr. Tang an impression kit which Mr. Tang undisputedly received on September 17, 2020. At some point between September 17, 2020 and November 24, 2020, Mr. Tang used and returned the impression kit back to NewSmile. Emails in evidence show NewSmile sent Mr. Tang the first treatment preview on November 24, 2020. NewSmile says the next day, Mr. Tang called and asked NewSmile to price match its Black Friday sale price and also asked NewSmile to modify the treatment preview as he wanted select teeth to be straighter than others. It appears that it is during this November 25, 2020 call that Mr. Tang alleges he first asked for a refund.

16.   NewSmile says that on December 4, 2020, one of its agents spoke with Mr. Tang and advised him that the Black Friday promotion could not be price matched and instead offered Mr. Tang the opportunity to provide a video testimonial after he received his aligners in exchange for a $100 rebate. NewSmile says that based on Mr. Tang’s November 25, 2020 revision requests, it provided a second treatment preview to Mr. Tang. Emails in evidence show that Mr. Tang reviewed the second treatment preview and advised NewSmile on January 1, 2021 that he was comparing the modified treatment preview to the original one and needed to look at it further. He asked NewSmile not to make the aligners yet. NewSmile responded the next day, acknowledging Mr. Tang’s email and asked him to keep NewSmile posted.

17.   NewSmile then followed up on February 23, 2021 to ask if Mr. Tang was happy with the second treatment preview so that it could proceed with making the aligners. I note that by this time, the 5-month refund period had expired. The same day, Mr. Tang asked if cancellation was $80 now, and then proceeded to ask for another revision to the treatment preview “to make it even more spacious and expanded in the bottom front row”.

18.   The parties’ discussions continued with NewSmile revising the treatment preview 2 more times at Mr. Tang’s request. Mr. Tang requested further revisions on September 23, 2021 but NewSmile advised him that no additional improvement could be made to the treatment preview in a safe manner and so it did not provide a 5th treatment preview. As noted above, Mr. Tang ultimately did not approve any of the treatment previews and so NewSmile did not make the aligners. Emails in evidence show that NewSmile repeatedly offered to make the aligners for Mr. Tang or, alternatively, offered to allow him to transfer the treatment plan to someone else of his choosing, including sending a new impression kit at no cost to that individual. To date, Mr. Tang has refused these offers.

19.   I find there is no clear evidence before me of any request for a refund made by Mr. Tang within the applicable refund period. The question then is whether Mr. Tang has proven that it is more likely than not that he asked for a refund during the November 25, 2020 phone call. On balance, I find the evidence, detailed below, suggests that Mr. Tang did not request a refund on that date, or at all before the refund period expired on February 9, 2021.

20.   For example, emails in evidence show that after Mr. Tang asked NewSmile repeatedly in August and September 2021 to allow him a refund and to “restart the billing process” NewSmile responded on September 29, attaching a copy of its refund policy to the email, and informed Mr. Tang that a refund would not be possible because he had now passed the 5-month grace period. Notably, in his response email, Mr. Tang did not question the 5-month refund period or say that he had previously requested a refund within that period but had been denied. In fact, it was not until April 26, 2022 that Mr. Tang said to NewSmile that he had tried to cancel within 5 months of his purchase date but that NewSmile had allegedly made promises about an IPR upgrade that he “waited and waited for”.

21.   Further in an August 8, 2022 email to NewSmile, Mr. Tang said that he had two audio recordings of a NewSmile employee admitting that he had asked for a refund or cancellation “on the IPR day which was about 2 months from purchase”. Notably, Mr. Tang did not provide any such audio recordings in evidence. I find that that if such recordings in fact confirmed Mr. Tang’s assertions that he asked for a refund within the 5-month refund period, he would have provided those audio recordings in this dispute. In these circumstances, I find it is appropriate to draw an adverse inference against Mr. Tang for his failure to provide a copy of these audio recordings. Based on this adverse inference, and the other emails described above, I find that Mr. Tang likely did not ask for a refund during the November 25, 2020 phone call or at any other time before February 9, 2021 as he alleges.

22.   I also find there is no evidence before me that NewSmile otherwise agreed to provide Mr. Tang a refund outside of the 5-month refund period. Further, other than Mr. Tang’s assertions, I find there is also no evidence of any promises made by NewSmile about IPR in November or December 2020 as Mr. Tang alleges.

23.   Mr. Tang appears to allege that he was waiting to hear back from NewSmile about how much of the IPR’s cost NewSmile would cover or what clinic Mr. Tang should attend at for the IPR. I infer Mr. Tang argues that had he not been waiting for this information from NewSmile, he would have otherwise requested a refund within the 5-month refund period. However, there is no mention in any of the emails before me of IPR by Mr. Tang until April 2021. Even at this point, Mr. Tang did not ask about the information he was allegedly waiting for, something I find he likely would have done if he was in fact waiting for NewSmile to confirm whether it would cover some of the cost of the IPR. So, I find it unproven that Mr. Tang’s failure to ask for a refund within the 5-month refund period was due to any inaction or failure by NewSmile to provide a timely response to any of Mr. Tang’s inquiries about IPR or otherwise.

24.   For all of the above reasons, I find Mr. Tang is not entitled to any refund and I dismiss his claims accordingly.

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. Here, neither party paid any CRT fees nor claimed any dispute-related expenses, so I award none.

ORDER

26.   I dismiss Mr. Tang’s claims and this dispute.