Date Issued: October 6, 2023

Files: SC-2022-002824 and
SC-2023-001654

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Hedmark v. Nelson, 2023 BCCRT 849

Between:

JAN HEDMARK

Applicant

And:

RON NELSON

Respondent

And:

JAN HEDMARK

Respondent BY COUNTERCLAIM

REASONS FOR DECISION
Tribunal Member:	Leah Volkers

INTRODUCTION

1.      This dispute is about excavator services. This decision relates to 2 linked disputes that I find collectively consist of 1 claim and 1 counterclaim. So, I have issued 1 decision for both disputes.

2.      Jan Hedmark is the applicant in SC-2022-002824 and the respondent by counterclaim in SC-2023-001654. Ron Nelson is the respondent in SC-2022-002824 and the applicant by counterclaim in SC-2023-001654.

3.      Mr. Hedmark says they have not been paid in full for excavator services they provided to Mr. Nelson. Mr. Hedmark claims $500 for their unpaid work.

4.      The CRT initially issued a default decision and order on August 12, 2022 for SC-2022-002824, which was later cancelled by the CRT on December 21, 2022.

5.      In his counterclaim, Mr. Nelson alleges that Mr. Hedmark continued enforcement proceedings against him and had a warrant issued for his arrest after the default decision and order for SC-2022-002824 was cancelled. Mr. Nelson says he was taken into custody and missed two 2 days of work while having the warrant vacated. Mr. Nelson also alleges Mr. Hedmark used his image for advertising without his consent. Mr. Nelson collectively claims $2,200 for lost wages for 2 days of missed work, and for Mr. Hedmark’s alleged use of Mr. Nelson’s image without his consent.

6.      The parties are each self-represented.

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. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me. I note the decision Yas v. Pope, 2018 BCSC 282, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I decided to hear this dispute through written submissions.

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.

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.

ISSUES

11.   The issues in this dispute are:

a.    Is Mr. Nelson responsible to pay Mr. Hedmark $500 for excavator services?

b.    Is Mr. Hedmark responsible to pay Mr. Nelson $2,200 for alleged lost wages and unauthorized photo use?

EVIDENCE AND ANALYSIS

12.   In a civil claim like this one, Mr. Hedmark, as the applicant, must prove their claims on a balance of probabilities (meaning more likely than not). Mr. Nelson bears the same burden for his counterclaims. I have reviewed all the parties’ submissions and evidence but refer only to what I find necessary to explain my decision.

Mr. Hedmark’s claims

13.   For the following reasons, I find Mr. Hedmark has not proved that the named parties in SC-2022-002824 had a contract for excavator services, so I dismiss Mr. Hedmark’s claims.

14.   There is no written contract in evidence. Mr. Hedmark says they are the owner of “ETB Excavating Ltd.” and they operate an excavator, skid steer and dump trailer. Mr. Hedmark says Mr. Nelson asked them to help out with their excavator and skid steer, and they supplied the services for $1,500. Mr. Hedmark says Mr. Nelson has paid $1,000, but still owes $500. Mr. Hedmark also says Mr. Nelson “proceeded to pay one of my workers directly, even though I repeatedly asked him not to do that as my worker received a cheque from my company for his time”.

15.   Text messages between the parties also show Mr. Hedmark told Mr. Nelson they would send an invoice for the work owing. Mr. Hedmark gave Mr. Nelson a February 15, 2022 invoice from “ETB Excavating”, without the Ltd., totaling $1,617.00, showing a $1,000 payment and balance of $617.00.

16.   Several text messages from Mr. Hedmark also indicate that they told Mr. Nelson to pay “ETB not james…”, and that “etb paid James with a cheque”, and also “pay what you owe ETB”.

17.   Mr. Hedmark’s own submissions and evidence indicate that Mr. Nelson’s contract for excavator services was likely with Mr. Hedmark’s company, rather than with Mr. Hedmark personally. Given this, I asked CRT staff to provide me with the corporate registry search for ETB Excavating Ltd., but it did not appear in the BC corporate registry. However, the corporate registry search shows that Mr. Hedmark is the sole director and officer of ETB Management Ltd. (ETBM) ETBM is not a party to Mr. Hedmark’s dispute. The parties were provided with the ETBM corporate registry search and asked to provide submissions on whether ETBM was relevant to this dispute. In response, Mr. Nelson said “ETB excavating is the company belonging to” Mr. Hedmark, and Mr. Hedmark always represented himself as ETB Excavating to Mr. Nelson and their community. Mr. Hedmark did not provide any submissions, despite the opportunity to do so. Given all the above, I infer ETBM is doing business as ETB Excavating.

18.   Mr. Hedmark did not explain why he is personally seeking payment of the ETB Excavating invoice. The legal doctrine known as “privity of contract” is relevant here. Privity of contract means that a contract cannot give rights or impose obligations on anyone who is not a party to a contract. In other words, a person must first agree to a contract in order to be bound by it, or to enforce rights under it.

19.   As noted above, as the applicant Mr. Hedmark bears the burden of proving their claims. Based on Mr. Hedmark’s own submissions and evidence, including the ETB Excavating invoice and the text messages, I find any alleged agreement for excavator services was likely between the corporation ETBM and Mr. Nelson. I find the evidence as a whole does not support a finding that Mr. Hedmark had an agreement with Mr. Nelson in their personal capacity. So, I find there is no basis to order Mr. Nelson to reimburse Mr. Hedmark personally for the ETB Excavating invoice.

20.   I make no findings about the rights and obligations of any party to the alleged agreement for excavator services, or whether ETBM is entitled to payment of the ETB Excavating invoice. Nothing in this decision prevents ETBM from making a claim against Mr. Nelson, subject to the applicable limitation period.

Mr. Nelson’s counterclaims

21.   Mr. Nelson counterclaims on two issues, and I will address each in turn.

22.   First, Mr. Nelson alleges that Mr. Hedmark pursued a warrant for his arrest in BC Provincial Court based on a CRT default decision and order in SC-2022-002824, despite the CRT issuing a cancellation decision. Mr. Nelson says he was taken into custody and claims $2,000 for 2 days lost wages. I address the relevant timeline below.

23.   Mr. Hedmark says they did not ask for the warrant to be issued. Rather, they say the judge did so when Mr. Nelson failed to attend court. The evidence shows the warrant was issued on December 20, 2022 following Mr. Nelson’s failure to attend court the same day as required by a summons to a payment hearing.

24.   The CRT default cancellation decision in SC-2022-002824 was not issued until the following day, December 21, 2022. So, I find the evidence shows the cancellation decision had not been made at the time the warrant was issued, and the court and Mr. Hedmark did not have notice of the CRT’s cancellation decision at the time the warrant was issued on December 20, 2022. I address the relevant timeline below.

25.   Mr. Nelson did not say why he did not attend court on December 20, 2022, prior to receiving the cancellation decision. I acknowledge that Mr. Nelson signed a cancellation request form to cancel the August 12, 2022 default decision and order on December 7, 2022. However, as noted, the CRT cancellation decision was not made until December 21, 2022, after the payment hearing in provincial court.

26.   Further, in the December 21, 2022 cancellation decision itself, Mr. Nelson confirmed he was served on December 6, 2022. In the cancellation decision, the CRT vice-chair inferred Mr. Nelson was served with provincial court enforcement documents at that time. Given the warrant itself in evidence, I similarly infer that Mr. Nelson was likely served with the summons to a payment hearing on December 6, 2022. This is also supported by an affidavit of service receipt provided by Mr. Hedmark. So, I find Mr. Nelson cannot rely on his December 7, 2022 cancellation request as a reason why he did not attend court on December 20, 2022, before the cancellation decision itself was issued.

27.   Mr. Nelson also says he did not become aware of the arrest warrant until January 14, 2023. I infer he was taken into custody on or around that day. Mr. Nelson argues that Mr. Hedmark had an obligation to discontinue enforcement proceedings after the cancellation decision was issued. I agree. Mr. Hedmark did not say what steps they took to discontinue enforcement proceedings after the cancellation decision was issued. However, I find it unnecessary to make any findings on this issue, because I find it was Mr. Nelson’s own failure to attend court on December 20, 2022, before the cancellation decision was issued, that resulted in the warrant being issued. The evidence does not support a finding that Mr. Hedmark pursued the warrant or any other enforcement measures against Mr. Nelson after receiving the cancellation decision. So, I find Mr. Nelson has not proved Mr. Hedmark pursued a warrant for Mr. Nelson’s arrest, or that Mr. Hedmark is responsible for Mr. Nelson’s alleged lost wages as a result. Given that this allegation is unproven, it unnecessary to address the legal basis of this claim. Further, even if Mr. Hedmark were responsible, which I find unproven, I also find Mr. Nelson’s alleged lost wages themselves unproven on the evidence before me. I dismiss this aspect of Mr. Nelson’s counterclaim.

28.   Mr. Nelson also alleges that Mr. Hedmark has been using photos of him and his property for advertising purposes on Mr. Hedmark’s company website without his consent, and claims $200. Mr. Nelson provided photos that appear to be posted on Facebook, although it is unclear whether the photos were posted on a “company website” or elsewhere on Facebook. The photos show an excavator, some excavator work, as well the surrounding natural area. There is nothing obviously distinctive about anything shown in the photographs, apart from one photo that includes a person that I infer is Mr. Nelson.

29.   For their part, Mr. Hedmark says they always ask permission before taking photographs while “on site”, and says Mr. Nelson gave them permission to post the pictures on their website after Mr. Hedmark said he would only charge Mr. Nelson $100 per hour instead of $130 for the excavator work. They also say the photo of Mr. Nelson shows him giving a thumbs up. Mr. Nelson did not address these allegations in his reply arguments. As noted, Mr. Nelson bears the burden of proving his counterclaims. I find it unnecessary to address the legal basis for this claim because Mr. Nelson has not proved that Mr. Hedmark used the photographs without his consent in any event. So, I dismiss this aspect of his counterclaims.

CRT fees and dispute-related expenses

30.   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 neither party was successful in their respective claims, I find neither is entitled to reimbursement of their paid CRT fees. Neither party claimed dispute-related expenses.

ORDER

31.   I dismiss Mr. Hedmark’s claims, Mr. Nelson’s counterclaims, and both disputes.