Date Issued: September 8, 2023

File: SC-2022-009431

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Taunk v. Acme Glass Ltd., 2023 BCCRT 763

Between:

KHUSHPAL SINGH TAUNK

Applicant

And:

ACME GLASS LTD.

Respondent

REASONS FOR DECISION
Tribunal Member:	Micah Carmody

INTRODUCTION

1.      The applicant, Khushpal Singh Taunk, ordered a custom glass tabletop from the respondent, Acme Glass Ltd. (Acme). Mr. Taunk says the glass was slightly smaller than the measurements he provided. He wants a full refund of the $1,050 he paid for the glass. Mr. Taunk is a lawyer and represents himself.

2.      Acme says I should dismiss the claim. It says the glass was within industry tolerance of 1/8 of an inch. Acme is represented by an employee.

JURISDICTION AND PROCEDURE

3.      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.

4.      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.

5.      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.

ISSUES

6.      The issues in this dispute are:

a.    How much did the glass tabletop deviate from the measurements Mr. Taunk provided?

b.    Does the deviation mean Mr. Taunk is entitled to the claimed $1,050 refund?

EVIDENCE AND ANALYSIS

7.      As the applicant in this civil proceeding, Mr. Taunk must prove his claims on a balance of probabilities, meaning more likely than not. While I have considered all the parties’ evidence and submissions, I only refer to what is necessary to explain my decision.

8.      In September 2022, Mr. Taunk ordered a glass tabletop from Acme to cover his wooden dining table. The initial conversation happened either in person or by phone and there is little evidence about it. The September 15, 2022 invoice identifies the glass tabletop as a “10mm Low Iron Glass Tempered Polish 42.1 x 92.3”.

9.      On September 21, 2022, Mr. Taunk emailed Acme 3 photos showing a measuring tape on the table he wanted the glass to cover. He did not state the measurements in his email but referred Acme to the photos. I find from the photos that the measuring tape showed the table was 45 inches wide and 92 1/8 inches long.

10.   The parties do not address that the invoice said the glass should be 42.1 inches wide while Mr. Taunk’s measurement said 45 inches wide. Mr. Taunk says he ordered a tabletop that was 45.1 inches wide and 92.3 inches long. Acme does not dispute this, so I find the invoice’s reference to 42.1 inches was an error that was caught before production, and it should have said 45.1 inches. I find Acme agreed to produce a glass tabletop that was 45.1 inches wide and 92.3 inches long. The total price was $1,050, which Mr. Taunk on September 21, 2022.

11.   Mr. Taunk says Acme delivered a glass tabletop that is 0.4 inches “less than the actual measurement in length” and 0.1 inches less in width. He also says the glass tabletop is not perfectly rectangular, as the width is slightly shorter on one side. Acme does not dispute that the tabletop may be slightly smaller than what was specified on the invoice, but says any deviation is within 1/8 of an inch. It says, without providing supporting evidence from an objective source, that this is acceptable in the glass industry.

12.   Mr. Taunk argues that Acme breached the parties’ contract by providing a tabletop with dimensions other than the 45.1-by-92.3-inch dimensions that formed the basis of their contract. This means that Mr. Taunk must establish with evidence the glass tabletop’s dimensions to show how much it deviated from what he ordered.

13.   Mr. Taunk’s assertions about the glass tabletop are bare assertions unsupported by any objective evidence. He did not provide any documentation of his measurements of the glass tabletop, such as photos with a measuring tape. He did not provide photos of the whole glass on the table to show the alleged gaps between edges. He did not show that the glass was not perfectly rectangular. I find that he should have been able to submit these kinds of photos like he did when he emailed Acme providing the measurements for his table. He does not explain why he did not do so.

14.   Mr. Taunk’s only objective evidence about the tabletop’s dimensions is the copy of the text messages he sent to Acme after delivery. In those texts, he sent Acme a blurry photo showing one corner of the table and tabletop. The glass tabletop stops short of the table’s edge, but it is impossible to tell by how much because there is nothing for scale or reference, such as a measuring tape. Also, the other corners are not visible in the photo, so it is not clear if the glass is centered on the table.

15.   In the texts, Mr. Taunk said the tabletop’s length was 3 mm short. Mr. Taunk now claims that the tabletop’s length is short by .4 inches, which is 10mm. He does not explain how he originally found the glass 3mm short but now finds it 10mm short. In the absence of any other explanation, I find it likely that Mr. Taunk exaggerated the difference after seeing Acme’s Dispute Response in which it said that up to 3mm difference was considered acceptable in the glass industry. Overall, I find Mr. Taunk’s evidence about the tabletop’s dimensions is not credible, and I reject it. I find Mr. Taunk has not established that the tabletop’s dimensions did not match the dimensions he ordered. So, I find he has not established a breach of contract.

16.   Even if I accepted that the tabletop was 3mm shorter than what Mr. Taunk ordered, which is not proven on the evidence before me, I would still dismiss Mr. Taunk’s claim. I note that 3mm is only 0.1% of the glass length. I am not satisfied that a 3mm deviation amounted to a contractual breach where there were no explicit terms about tolerance. As the applicant, Mr. Taunk bears the burden of proving each aspect of his claim, and I find he has not done so. As a result, I dismiss Mr. Taunk’s claim.

17.   In submissions, Acme says Mr. Taunk should pay its $105 invoice for mirror installation. Mr. Taunk says he separately purchased a mirror from Acme for $250 including installation, which was not part of the invoice for the tabletop. Acme did not file a counterclaim, and given that I dismiss Mr. Taunk’s claim, there is nothing to set off against even if Acme proved it was entitled to a mirror installation fee and the mirror was sufficiently connected to the tabletop contract. So, I make no findings or orders about the mirror.

18.   Under section 49 of the CRTA and CRT rules, a successful party is generally entitled to reimbursement of their CRT fees and reasonable dispute-related expenses. Acme was successful but did not pay CRT fees. I dismiss Mr. Taunk’s claim for CRT fees. Neither party claims dispute-related expenses.

ORDER

19.   I dismiss Mr. Taunk’s claims and this dispute.