Date Issued: October 4, 2023

File: SC-2022-009869

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Davidson v. Ross, 2023 BCCRT 842

Between:

DONALD DWAIN DAVIDSON

Applicant

And:

DAIVA ROSS

Respondent

REASONS FOR DECISION
Tribunal Member:	Nav Shukla

INTRODUCTION

1.      This dispute is about an alleged $2,000 loan. The applicant, Donald Dwain Davidson, says he loaned Daiva Ross $2,000 in October 2019. Mr. Davidson says Ms. Ross agreed to pay back the loan once her account that she was depositing the funds into was “in the positive” for more than 24 hours. He says she has repaid nothing to date. So, Mr. Davidson seeks $2,000 from Ms. Ross for the allegedly unpaid loan.

2.      Ms. Ross denies she owes Mr. Davidson anything. She admits that Mr. Davidson sent her a $2,000 e-transfer in October 2019. However, she says that Mr. Davidson sent the funds after entering into an agreement with Ms. Ross’ former partner, GR, who is also Mr. Davidson’s stepson. Ms. Ross says any agreement was between Mr. Davidson and GR. She further says that GR has already paid Mr. Davidson in full.

3.      The parties are both self-represented.

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.

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 and 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.

Limitation Act

7.      The Limitation Act (LA) applies to CRT disputes. A limitation period is a time period within which a person may bring a claim. Section 6 of the LA says the basic limitation period is 2 years from the date a claim is discovered. If that period expires, the right to bring a claim ends, even if the claim would have otherwise been successful. Based on the date of the alleged loan and the alleged repayment date, I find that there may be an issue as to whether Mr. Davidson started this dispute in time under the LA. Neither party raised this issue. However, based on my decision below dismissing Mr. Davidson’s claims, I find it unnecessary to request submissions from the parties relating to this issue.

ISSUE

8.      The issue in this dispute is whether Ms. Ross owes Mr. Davidson the claimed $2,000.

EVIDENCE AND ANALYSIS

9.      As the applicant in this civil proceeding, Mr. Davidson must prove his claims on a balance of probabilities (meaning “more likely than not”). I have read all the parties’ submitted evidence and argument but refer only to what I find relevant to provide context for my decision. I note Mr. Davidson did not provide any final reply argument, despite having the opportunity to do so.

Background Facts

10.   The following facts are undisputed. Ms. Ross and GR held a joint back account at Tangerine bank. In 2019, the account was in overdraft. So, in July 2019, GR and Ms. Ross agreed that GR would ask Mr. Davidson for a $3,000 loan to bring the Tangerine account out of overdraft. GR and Ms. Ross undisputedly agreed to repay the $3,000 after the account was out of overdraft for over 24 hours, which they did.

11.   Emails in evidence show the account was again in overdraft in October 2019 and Ms. Ross asked GR to ask Mr. Davidson to wire $2,000 “ASAP”. Mr. Davidson undisputedly e-transferred Ms. Ross $2,000 on October 24, 2019 and Ms. Ross used the funds, together with $197.89 of her own funds to pay the overdraft and close the account.

12.   On October 25, 2019, Ms. Ross emailed Mr. Davidson, thanking him for the $2,000 e-transfer and told him that with the funds, she was able to pay off the overdraft and close the account. Mr. Davidson responded the same day, saying that he had only lent Ms. Ross the money for 24 hours and she was to pay it back. Ms. Ross responded on October 26, 2019, and said that when she spoke with Mr. Davidson last week, they did not discuss “any of this”. She said that she did not ask him for any money and assumed that he had wanted to help. She apologized for the misunderstanding and said that she was not aware of the arrangements he made with GR, but that GR would pay him back. Mr. Davidson responded later the same day and reiterated that the money was lent to Ms. Ross to bring the account into the clear and then was to be sent back to Mr. Davidson. He said that Ms. Ross knew this.

13.   The evidence shows that on October 30, 2019, GR texted Ms. Ross that he had transferred Mr. Davidson $700. On November 27, 2019, Ms. Ross messaged Mr. Davidson and asked if GR had paid back the $2,000 yet. Mr. Davidson responded the next day and said that GR had just paid $700. Ms. Ross responded that GR told her he had paid $700 at the end of October, another unspecified payment on November 13 and another $700 on November 27.

14.   There is no further correspondence in evidence between the parties about the $2,000 loan until March 21, 2021. On that date, Mr. Davidson emailed Ms. Ross asking when she planned to pay back the $2,000. Ms. Ross responded on April 5, 2021 that Mr. Davidson made the agreement with GR behind her back, and that she never asked for the loan or signed any agreement taking responsibility for it. Mr. Davidson then submitted his application for dispute resolution with the CRT on December 14, 2022.

Must Ms. Ross repay the $2,000?

15.   As noted above, Ms. Ross denies she owes Mr. Davidson anything. In particular, she says that any agreement for the $2,000 loan was between Mr. Davidson and GR, not her. I note that while the evidence shows Ms. Ross asked GR to ask Mr. Davidson for $2,000, and Mr. Davidson undisputedly sent her the money, there is no evidence before me that Ms. Ross personally agreed to repay or be liable for the $2,000.

16.   Further, I find the November 2019 text messages mentioned above show that Mr. Davidson acknowledged receiving $700 from GR for the loan’s repayment. Ms. Ross also provided a November 2019 bank statement for GR’s account showing a $700 e-transfer to Mr. Davidson on October 29, 2019, which I find is likely for the $700 payment Mr. Davidson acknowledged receiving. So, I find that by November 27, 2019, GR had repaid Mr. Davidson at least $700 of the $2,000 loan. Notably, after the parties’ initial exchange about the $2,000 in October 2019 where Mr. Davidson said Ms. Ross was to repay the $2,000, Mr. Davidson made no requests for payment from Ms. Ross until March 2021, after Ms. Ross and GR had undisputedly separated. I find GR’s $700 payment and the lack of any payment demands by Mr. Davidson to Ms. Ross until March 2021 suggests that the parties and GR likely agreed in late 2019 that the loan was entirely GR’s responsibility to repay.

17.   In addition, Ms. Ross’ evidence includes GR’s bank statements which show GR e-transferred Mr. Davidson $400 on May 13, 2020, $187.60 on May 19, $600 on May 27, and $650 on June 10, totaling $1,837.60. She says these payments were for the $2,000 loan. As noted above, Mr. Davidson did not provide any reply argument, so he has provided no explanation about what these payments from GR were for. Notably, GR’s bank statements in evidence do not show any additional e-transfers received from Mr. Davidson and there is no additional evidence before me to suggest that the e-transfers from GR to Mr. Davidson were for something other than the $2,000 loan. While the $1,837.60 in e-transfers and the earlier $700 payment together equal more than the $2,000 loan, I find that if the bulk of these e-transfers were not for the $2,000 loan, Mr. Davidson would have said so and provided documentary evidence in support. Given the lack of any explanation or evidence showing otherwise, and the lack of any explanation by Mr. Davidson about why he made no demands for payment from Ms. Ross until March 2021, I find it appropriate to draw an adverse inference against Mr. Davidson and find that $1,300 of these e-transfers was likely for the $2,000 loan. So, taking into account these e-transfer payments and the earlier $700 payment, I find GR has likely already repaid the $2,000 loan in full.

18.   In conclusion, I find it more likely than not that GR alone agreed to be responsible for repaying the loan to Mr. Davidson. Even if Ms. Ross was also liable for the loan, on the evidence before me and given the adverse inference I have drawn, I find GR has repaid the loan in any event. So, I find Mr. Davidson is not entitled to any payment from Ms. Ross and I dismiss his claims.

19.   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. Since Mr. Davidson was unsuccessful, I find he is not entitled to reimbursement of his paid CRT fees. Ms. Ross did not pay any CRT fees. However, she claims $117.60 in legal fees she incurred relating to Mr. Davidson’s March 21, 2021 request for repayment. Ms. Ross’ lawyer’s April 8, 2022 invoice in support of this reimbursement claim is in evidence. However, since Ms. Ross incurred these legal fees before this CRT dispute began, they are generally not considered dispute related. Even if they were, under CRT rule 9.5(3), the CRT will not order one party to pay another party fees a lawyer has charged in the CRT process unless there are extraordinary circumstances making it appropriate to do so. I find there is no evidence of any extraordinary circumstances here. So, I dismiss Ms. Ross’ claim for legal fees as dispute-related expenses.  

ORDER

20.   I dismiss Mr. Davidson’s claims, Ms. Ross’ claim for legal fees as dispute-related expenses, and this dispute.