Date Issued: September 29, 2023

File: SC-2022-009880

Type: Small Claims

Civil Resolution Tribunal

Indexed as: 7175337 Canada Corp. (dba Ecoline Windows) v. Zadubenec,

2023 BCCRT 830

Between:

7175337 CANADA CORP. (Doing Business As ECOLINE WINDOWS)

Applicant

And:

BRANISLAV ZADUBENEC

Respondent

REASONS FOR DECISION
Tribunal Member:	Leah Volkers

INTRODUCTION

1.      This dispute is about payment for a custom door.

2.      The respondent, Branislav Zadubenec, ordered 1 custom door from the applicant, 7175337 Canada Corp (Doing Business as Ecoline Windows) (Ecoline), for a total of $1,899.92. Mr. Zadubenec paid a $474.98 deposit. Ecoline says Mr. Zadubenec refused to accept delivery of the door, and reversed the $474.98 deposit. Ecoline claims $1,899.92 for the door.

3.      Mr. Zadubenec says Ecoline breached the parties’ contract because the door was supposed to be delivered in October or November 2022, but it was not ready until December 6, 2022. Mr. Zadubenec says Ecoline still has the door, and he is not responsible to pay anything for it.

4.      Ecoline is represented by a person I infer is a principal or authorized employee. Mr. Zadubenec is self-represented.

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.

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 to what extent, if any, Mr. Zadubenec must pay Ecoline the claimed $1,899.92 for the custom door.

EVIDENCE AND ANALYSIS

10.   In a civil claim like this one, Ecoline, as the applicant, must prove its claims on a balance of probabilities (meaning more likely than not). I have reviewed all the parties’ submissions and evidence but refer only to what I find necessary to explain my decision.

11.   It is undisputed that Mr. Zadubenec and Ecoline signed a 3-page contract dated August 1, 2022 for 1 custom exterior door. The contract also specifically stated “no installation”. The contract also served as Ecoline’s invoice. It noted Mr. Zadubenec paid a $474.98 deposit, with the $1,424.94 balance due “on delivery”. It said the Ecoline would deliver the door in “October/November”.

12.   The evidence shows Ecoline and Mr. Zadubenec exchanged some emails between August and November 2022 about the door’s status. On November 2, 2022, Ecoline advised Mr. Zadubenec that there were some unforeseen delays due to parts being ordered and restocked.

13.   On November 17, 2022, Mr. Zadubenec emailed Ecoline and said if the door was not delivered in the next week, he would cancel his order. On November 24, 2022, Mr. Zadubenec emailed Ecoline and said the door showed as being “in transit” and asked Ecoline to clarify. Ecoline responded and confirmed the door was in the queue for shipment and said once the order arrived it would reach out to book installation.

14.   It is undisputed that around December 8, 2022, Ecoline contacted Mr. Zadubenec to schedule the door’s installation, and Mr. Zadubenec advised he had already obtained another door. Ecoline followed up with a December 8, 2022 email advising Mr. Zadubenec that under the parties’ contract, Mr. Zadubenec was required to pay for the door, and he was not entitled to cancel the order. It said Ecoline would invoice for the cost of the product itself and exclude the installation cost.

15.   Although both Ecoline and Mr. Zadubenec refer to the door’s installation, the August 1, 2022 contract and invoice specifically said “no installation”. So, I infer Ecoline either contacted Mr. Zadubenec to schedule delivery the door, or the parties had a separate agreement about installation that is not before me. In either case, it is undisputed that Mr. Zadubenec refused the door at that time. As noted, Mr. Zadubenec argues that a 4-month delay in providing the door is too long, and in breach of the parties’ contract for delivery in “October/November”. I return to this below.

16.   Although Mr. Zadubenec suggested he would cancel the parties’ contract in late November 2022, I find he did not seek to do so until December 8, 2022 when he refused to schedule a delivery time for the door. It is also undisputed Mr. Zadubenec contacted his credit card company to reverse the $474.98 paid deposit, and it was charged back to Ecoline. So, I find Mr. Zadubenec has paid nothing for the door.

17.   In the contract’s boilerplate terms on the 3^rd page, it expressly said that Ecoline was not responsible for any delay or failure in performance caused by the COVID-19 pandemic. It also expressly said that Ecoline would not be responsible if the delay or failure was caused by a shortage of building materials from suppliers where supply sectors are strained. Although Mr. Zadubenec argues that Ecoline has not proved the delay was due to COVID-19, I accept Ecoline’s contemporaneous November 2022 emails that said the unforeseen delay was due to issues with “parts being ordered and restocked”, which I find falls within the above exclusion for delays due to any building materials shortage.

18.   The contract further said that Ecoline would “use reasonable endeavors” to deliver the goods and services within the times indicated on the contract. However, the contract further said where dates are given, they are “for general guidance only”. The contract said Mr. Zadubenec acknowledged and agreed that he remained responsible for the contract’s full price even if he refused to accept delivery. Significantly, the contract further said that custom orders are not cancellable. It is undisputed Mr. Zadubenec’s order was a custom order.

19.   Finally, I turn to the alleged delay. I place little weight on Mr. Zadubenec’s argument that a 4 month period between the order date and delivery was “too long”, because I find Ecoline contacted Mr. Zadubenec to arrange the door’s delivery on December 8, 2022, which is just over one week beyond the original “October/November” delivery timeline provided for in the parties’ contract. In other words, even if the contract had not said dates were only “general guidance”, I would not have found a breach of contract based on delay.

20.   Given the contract’s clear terms, I find Mr. Zadubenec was not entitled to cancel his order or receive a refund of his paid deposit. I also find the contract is clear that the specified delivery date was not guaranteed. Based on the parties’ contract, I find that Mr. Zadubenec was obligated to pay for the door even if he refused to accept it.

21.   While not specifically raised in this dispute, I have also considered whether the Business Practices Consumer Protection Act (BPCPA) applied to Mr. Zadubenec’s cancellation request. Mr. Zadubenec’s order for the custom door was a future performance contract as defined in the BPCPA. This is because Mr. Zadubenec did not fully pay for the door, nor did he receive the door at the time the contract was made. BPCPA sections 19 and 23 set out a variety of requirements that a future performance contract must contain, including a supply date. I find the parties’ contract met the BPCPA requirements, including the supply date. This is because the contract specified “October/November” which I find was sufficiently precise. There is nothing in the BPCPA that says a supply date cannot later change, and as noted I find the door was available for delivery on December 8, 2022. So, I find the BPCPA did not provide Mr. Zadubenec with any entitlement to cancel the parties’ contract and obtain a refund.

22.   Mr. Zadubenec argues that if he does have to pay for the door, he should not have to pay the full contract amount. Mr. Zadubenec says awarding the full contract amount for the door would leave Ecoline in a better position that if the contract had been performed because Ecoline still has the door and because Ecoline did not remove and dispose of the old door. As noted, the invoice specifically stated “no installation”, and I find it did not include any installation charges. I also find the evidence shows Mr. Zadubenec refused to schedule the door’s delivery when contacted by Ecoline. So, I find he is not entitled to now claim a reduction on the contract price for the door he refused to accept. There is also no evidence the custom door has any value to Ecoline, and I make no order about the door itself.

23.   The evidence does not show that Ecoline sent a further invoice apart from the August 1, 2022 contract and invoice discussed above. As noted, the August 1, 2022 invoice for the supply of 1 exterior door for 1,899.92 including GST, before accounting for the deposit. As noted, the $474.98 deposit was undisputedly charged back to Ecoline at Mr. Zadubenec’s request. So, I find the invoice’s entire $1,899.92 balance is due. I find Mr. Zadubenec is responsible to pay Ecoline $1,899.92 for the custom door.

Interest, CRT fees and expenses

24.   The Court Order Interest Act applies to the CRT. Ecoline is entitled to pre-judgment interest on the $1,899.92 award. The August 1, 2022 invoice indicated payment was due on delivery. As I have found Mr. Zadubenec refused delivery around December 8, 2022, I find it appropriate to calculate interest on the $1,899.92 invoice amount from December 8, 2022 to the date of this decision. This equals $67.50.

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. As Ecoline was successful, I find it is entitled to reimbursement of $125 in paid CRT fees. Neither party claimed dispute-related expenses.

ORDERS

26.   Within 30 days of the date of this order, I order Mr. Zadubenec to pay Ecoline a total of $2,092.42, broken down as follows:

a.    $1,899.92 in debt,

b.    $67.50 in pre-judgment interest under the Court Order Interest Act, and

c.    $125 in CRT fees.

27.   Ecoline 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.