Date Issued: October 12, 2023

File: SC-2022-009247

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Zhao v. Leong, 2023 BCCRT 866

Between:

QIANG ZHAO

Applicant

And:

HERMAN LEONG

Respondent

REASONS FOR DECISION
Tribunal Member:	Leah Volkers

INTRODUCTION

1.      The applicant, Qiang Zhao, purchased a used stove from the respondent, Herman Leong. Ms. Zhao alleges Mr. Leong fraudulently misrepresented the stove’s condition when she bought it. She says the stove did not work after it was installed. She claims $670 for the stove’s cost, plus delivery and installation fees.

2.      Mr. Leong disputes Ms. Zhao’s claims and says the stove was working when Ms. Zhao bought it.

3.      The parties are each 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.

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.

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.      In submissions, both parties referred to discussions during the CRT’s facilitation stage, including alleged settlement offers. Ms. Zhao also included emails in evidence from the CRT’s facilitation stage. CRTA rule 1.11 says that communications made attempting to settle claims by agreement in the tribunal process are confidential and must not be disclosed during the tribunal decision process. Under CRTA section 89 and CRT rule 1.11 communications during the dispute’s facilitation stage are confidential and not admissible as evidence unless all parties consent. Although both parties referenced the settlement discussions, neither expressly consented to disclosing those discussions, nor the emails submitted in evidence.  In any event, the parties did not agree to any settlement, and nothing turns on the evidence of the settlement discussions themselves. So, I have not considered them in my decision.

ISSUE

9.      The issue in this dispute is whether Mr. Leong misrepresented the stove’s condition, and if yes, what remedy is appropriate?

EVIDENCE AND ANALYSIS

10.   In a civil claim like this one, Ms. Zhao, as the applicant, must prove her 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.   At the outset, I note that in his Dispute Response, Mr. Leong said the person he was communicating with on Craigslist was named “Jade”, and said he was not sure if Ms. Zhao was the same person. However, Mr. Leong did not pursue this position in his submissions. I find Ms. Zhao is the same person as “Jade” listed in the Craigslist communications, and Ms. Zhao undisputedly purchased Mr. Leong’s used stove.

12.   Mr. Leong undisputedly listed the stove for sale on Craigslist for $250, and stated it was in great condition. Emails shows Ms. Zhao responded to the Craigslist ad and the parties agreed Ms. Zhao would pick up the stove on August 31, 2022. Text messages between the parties the same day show that Ms. Zhao asked Mr. Leong to confirm everything worked, and Mr. Leong did so. Ms. Zhao undisputedly had a third party pick up the stove that day on her behalf.

13.   Further texts between the parties on September 5, 2022 indicate the following. Ms. Zhao said she had installed the stove, but the cooktop would not turn on. Mr. Leong provided Ms. Zhao with some instructions to turn on the elements. Ms. Zhao texted videos to Mr. Leong that were also submitted in evidence. The videos show Ms. Zhao touching the stove elements when the indicators show they are turned on, with no effect. Ms. Zhao said she had to return the stove to Mr. Leong. Mr. Leong said the stove worked when he sold it to Ms. Zhao and asked if Ms. Zhao’s friend dropped it. Ms. Zhao denied this. Ms. Zhao asked for Mr. Leong to refund her the $250 she paid for the stove. Mr. Leong did not respond.

14.   Its undisputed that Ms. Zhao returned the stove to Mr. Leong’s property on September 7, 2022.

15.   As noted, Ms. Zhao alleges that Mr. Leong fraudulently misrepresented the stove’s condition. Although Ms. Zhao only argued fraudulent misrepresentation, I have considered both fraudulent and negligent misrepresentation in this dispute.

16.   Fraudulent misrepresentation occurs when a seller makes a representation of fact, the representation is false, the seller knew it was false or recklessly made it without knowing it was true or false, and the buyer is induced by the false representation to buy the item. See Ban v. Keleher, 2017 BCSC 1132 at paragraph 16. A negligent misrepresentation occurs when a seller makes a representation that is untrue, inaccurate or misleading, the seller breaches the standard of care in making the misrepresentation, and the buyer reasonably relies on the misrepresentation to their detriment. See Queen v. Cognos Inc., 1993 CanLII 146 (SCC).

17.   So, the question then is whether Mr. Leong misrepresented the stove at the time of purchase when he said it was in great condition and everything worked.

18.   Ms. Zhao provided a statement from WR, who installed the stove. WR said they are a licenced electrician. I summarize WR’s evidence as follows. WR connected the stove’s power on September 1, 2022. The oven worked properly, but the cooktop’s elements did not heat up. WR had Ms. Zhao put a pot on the cooktop in case it was induction, but the stove still did not heat up. In their statement, WR also provided some opinion evidence. WR said if the entire cooktop does not turn on, it could be a faulty controller board. WR also said if some elements work and others do not, it means the element itself or the touch panel has a problem. However, WR did not inspect the stove and did not say that either the control board or the touch panel malfunctioned with the stove at issue. So, I find WR’s opinion unhelpful and I place no weight on it. 

19.   For his part, Mr. Leong denies any misrepresentation and says the stove was working when he sold it. He says he bought a new stove during his kitchen renovation. Mr. Leong provided statements from KT and AM. KT assisted Mr. Leong with his kitchen renovation project, and AM took the stove from Mr. Leong after Ms. Zhao returned it. I summarize KT’s evidence as follows. KT personally used the stove before it was sold without any issues. KT was present throughout the stove’s removal process, and oversaw the stove’s movement, pickup and drop-off. KT personally handled the stove and it was in perfect working condition before its removal.

20.   I summarize AM’s evidence as follows. AM was visiting a friend who lived near Mr. Leong in September 2022 and noticed an abandoned stove on Mr. Leong’s driveway. AM asked about the stove, and Mr. Leong indicated the stove worked, but they buyer had brought it back claiming it did not. Mr. Leong also advised he left it out for the buyer to take back but they had not done so, so Mr. Leong needed to dispose of it. AM offered to take the stove for their mother, and Mr. Leong agreed. AM installed the stove at their mother’s home several months later, and all 5 elements and the oven worked without any issues. AM did not need to do any repairs to the stove. AM also said they sent videos of the stove working.

21.   Mr. Leong provided videos dated April 19, 2023. I infer these are the videos taken by AM, noted above. The videos show all 5 elements on the stove turning on and boiling water in pots, and both the top and bottom oven elements on. 

22.   For both negligent and fraudulent misrepresentation, Ms. Zhao must prove that the representation itself was false or untrue. I acknowledge WR’s evidence that they did not observe the stove’s elements heating up after installing the stove. Ms. Zhao’s videos and WR’s statement support a finding that the elements did not heat up immediately after the stove was installed. However, I find this is not sufficient to prove that the stove was not working at the time of sale. I say this because KT’s evidence supports a finding the stove was working at the time of sale, and Mr. Leong’s videos and AM’s evidence support a finding that the stove worked after Ms. Zhao returned it, without any repairs. Further, although WR provided some opinion evidence on the potential causes for the alleged element issues, WR did not identify any specific cause for the alleged element issue. So, there is no expert evidence to confirm that the stove was not working properly when Mr. Leong sold it to Mr. Zhao, or on what basis. The evidence also does not show that Ms. Zhao made any efforts to confirm the stove was installed correctly or otherwise investigate the alleged element issue before returning the stove to Mr. Leong. As noted, Ms. Zhao bears the burden of proving her claims. Given all the above, I find Ms. Zhao has not proven that Mr. Leong’s representation was false or untrue.

23.   Finally, even if the stove was not working when Mr. Leong sold it to Ms. Zhao, which I find unproven, the evidence does not support a finding that Mr. Leong knew or reasonably ought to have known the stove was not working when he sold it to Ms. Zhao. So, I find it unproven that Mr. Leong fraudulently or negligently misrepresented the stove’s condition. I dismiss Ms. Zhao’s claim for reimbursement of the stove’s purchase price, as well as delivery and installation costs.

24.   In her submissions, Ms. Zhao also said that if the stove is now working, she could take back the stove and withdraw her claim. However, Ms. Zhao did not contact the CRT to withdraw her claim, and continued to claim reimbursement for the stove as well as the delivery and installation costs. So, I place no weight on this submission, and I make no order about the stove itself.

CRT fees and expenses

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. Ms. Zhao was unsuccessful in this dispute, so I dismiss her fee claim.

26.   Ms. Zhao also included a $67.20 claim for a title search fee in her primary claim that I find is a claim for reimbursement of a dispute-related expense. However, as Ms. Zhao was unsuccessful in this dispute, I find she is not entitled to any reimbursement for dispute-related expenses. Mr. Leong did not pay any CRT fees or claim any dispute-related expenses, so I award none.

ORDER

27.   I dismiss Ms. Zhao’s claims and this dispute.