Date Issued: November 3, 2023
File: SC-2022-003890
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Rae v. McIntyre, 2023 BCCRT 950
Between:
KORY RAE
Applicant
And:
EILEEN MCINTYRE, RON ROBERT OLSON (Doing Business As RJO DEVELOPMENTS), and ELK VALLEY HOMES LTD.
RespondentS
REASONS FOR DECISION |
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Tribunal Member: |
Leah Volkers |
INTRODUCTION
1. This dispute is about a modular home deposit.
2. The applicant, Kory Rae, says she agreed to purchase a modular home in the undeveloped “Fisher Peak Estates” and paid a $5,000 deposit. Ms. Rae says various issues arose, including delays and financing issues, that resulted in her going elsewhere to purchase a home. Ms. Rae says she “collapsed” the contract, but the respondents, Eileen McIntyre, Ron Robert Olson (Doing Business As RJO Developments), and Elk Valley Homes Ltd. (EVHL), did not return the $5,000 deposit. Ms. Rae seeks a refund of the $5,000 deposit.
3. EVHL says Ms. Rae entered into an unconditional purchase agreement, and the deposit was non-refundable. EVHL says Ms. Rae abandoned the sale. EVHL says it released the funds to Ms. McIntyre when the purchase agreement was “dissolved”.
4. Ms. McIntyre says the deposit went to the company that she worked for, and never went to her directly. Ms. McIntyre says she no longer works for “Mount Fisher Estates”.
5. Mr. Olsen says he was the developer and was not involved in taking any funds from Ms. Rae. I find Mount Fisher Estates and Fisher Peak Estates likely refer to the same development or subdivision, and Mr. Olsen is the developer.
6. Ms. Rae, Ms. McIntyre and Mr. Olsen are each self-represented. EVHJ is represented by one of its directors, Richard Pater.
7. It is unclear from the parties’ submissions whether Ms. McIntyre was an EVHL employee, a realtor, or otherwise. EVHL and Mr. Olsen’s relationship is also unclear. However, I find it unnecessary to make any findings about the respondents’ relationships to each other. I say this because for the following reasons I find Ms. Rae has not proven she is entitled to a refund of the deposit. So, I dismiss her claims against all three respondents.
JURISDICTION AND PROCEDURE
8. 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.
9. 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.
10. 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.
11. 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.
Late evidence
12. Ms. McIntyre emailed CRT staff her signed statement during final reply submissions. Ms. Rae, EVHL, and Mr. Olsen were provided with an opportunity to review and provide submissions on the statement. So, I find there is no actual prejudice in allowing this statement in evidence. Consistent with the CRT’s flexible mandate, I have allowed and considered this late evidence.
ISSUE
13. The issue in this dispute is whether Ms. Rae is entitled to a refund of the $5,000 deposit from any of the respondents.
EVIDENCE AND ANALYSIS
14. In a civil claim like this one, Ms. Rae, 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. EVHL did not provide any documentary evidence despite being provided the opportunity to do so.
15. Ms. Rae says she told her realtor, BK, that she was interested in the new subdivision, and says BK connected her with Ms. McIntyre of EVHL. Ms. Rae says she met with Ms. McIntyre and Mr. Olsen on April 19, 2021 and agreed to purchase a modular home at the undeveloped Fisher Peak Estates. Ms. Rae says she originally agreed to purchase a modular home to be placed on “lot #2”, but later agreed to purchase a modular home on “lot #1”.
16. Ms. Rae submitted 3 contracts in evidence. All 3 contracts list Ms. Rae and a third party, KH, as the purchasers, and EVHL as the vendor. Neither Ms. McIntyre nor Mr. Olsen are listed as vendors on any of the contracts, although I find Ms. McIntyre likely signed the contracts for EVHL based on the signatures shown in each contract. So, I find Ms. Rae contracted only with EVHL, not Ms. McIntyre or Mr. Olsen. On that basis, I dismiss Ms. Rae’s claims against Ms. McIntyre and Mr. Olsen.
17. The 1st contract was undated, but listed a May 15, 2021 acceptance date. It was not signed by Ms. Rae or KH. However, Ms. Rae herself refers to the 1st contract, and says she agreed to purchase the modular home around April 19, 2021. So, I infer Ms. Rae agreed to the 1st contract on April 19, 2021, although the copy in evidence is unsigned. The 1st contract shows Ms. Rae agreed to purchase a 2021 custom modular home to be delivered to lot #2 at Mount Fisher Estates. The evidence also shows Ms. Rae e-transferred Ms. McIntyre a total of $5,000 over three payments on April 19, 2021.
18. Ms. Rae says she was advised of delays and Ms. McIntyre offered to let her purchase the “show home” instead, which Ms. Rae agreed to. Ms. McIntyre undisputedly provided Ms. Rae with a 2nd contract to purchase a different 2021 modular home than listed in the 1st contract, which I infer is the show home, to be delivered to lot #1. Ms. Rae says the 2nd contract did not initially “acknowledge” her deposit. Ms. Rae says she raised this with Ms. McIntrye and then Ms. McIntyre provided a 3rd contract that included Ms. Rae’s $5,000 deposit. Ms. Rae and KH undisputedly signed the 3rd contract on October 7, 2021. The 3rd contract shows Ms. Rae agreed to purchase the show home to be delivered to lot #1.
19. Apart from the 3 contracts listed above, there is very little documentary evidence to support this claim. Although Ms. Rae refers to various emails in her submissions, none of the emails were provided as evidence.
20. Ms. Rae says on October 21, 2021 there were only 10 days until possession and “there was no way we could do that” because she had not been able to get her financing in place. She says the bank was missing crucial information that she could not provide because EVHL did not provide it to her. She emailed Ms. McIntyre on October 21, 2021 and told her to “collapse” the deal. I find this means Ms. Rae told Ms. McIntyre to cancel the contract.
21. For its part, EVHL says Ms. Rae entered into an unconditional agreement to purchase a custom manufactured home, with a non-refundable $5,000 deposit. EVHL says Ms. Rae “abandoned the home”, and the deposit was paid to Ms. McIntyre, who was the salesperson that “made the sale”.
22. For her part, Ms. McIntyre says Ms. Rae was clearly told once a home had been placed on order schedule it could not be cancelled, which Ms. Rae disputes. Ms. McIntyre also acknowledges that there were some issues getting the lot ready for the home, but says that delay was caused by Mr. Olsen, the developer. Ms. McIntyre also says Ms. Rae was allowed to cancel the contract, but says Ms. Rae was again told she would not get her deposit back. As noted, Mr. Olsen says he had no involvement with the $5,000 deposit.
23. The first question is whether the $5,000 payment was a “true deposit”. In law, a true deposit is designed to motivate the parties to carry out their bargains. Buyers (here, Ms. Rae and a third party who is not named in this dispute) who repudiate a contract generally forfeit the deposit, even if the seller (here, EVHL) did not suffer any losses. In contrast, a partial payment is made with the intention of completing a transaction. For a seller to keep a partial payment, they must prove actual losses to justify keeping the money received. See Tang v. Zhang, 2013 BCCA 52, at paragraph 30.
24. As noted above, the 1st contract listed the $5,000 as a “down payment”. The e-transfers all describe the $5,000 payment as a deposit. The 3rd contract lists the $5,000 payment as a deposit. The parties all referred to the $5,000 payment as a deposit, and EVHL and Ms. McIntyre specifically argue that it is non-refundable. None of the contracts specifically noted that the $5,000 deposit was non-refundable. Ms. Rae argues the absence of “non-refundable” language in the contracts means the $5,000 deposit is refundable.
25. A “deposit” is non-refundable by definition. When parties use the word “deposit” to describe such a payment, that word should be given its normal meaning in law unless there are contrary provisions in the contract. See Tang v. Zhang, 2013 BCCA 52 (CanLII) at paragraphs 25 and 30. Here, I find there are no such contrary provisions. So, I find the $5,000 payment was intended as a true deposit.
26. EVHL is only entitled to retain the deposit if Ms. Rae repudiated the contract. Repudiation occurs when a party does or says something to show that they reject their obligations under a contract. See No. 151 Cathedral Ventures Ltd. v. Gatrell et al, 2003 BCSC 1801.
27. While Ms. Rae does not use this term, I find that she argues that EVHL repudiated the contract. She argues that there were delays and alleges the respondents failed to provide necessary information about the modular home in order for her to arrange financing. However, she provided no documentary evidence to support this allegation, so I find it unproven. I acknowledge that the process was stressful for Ms. Rae and she was anxious to finalize her financing. However, the evidence does not support a finding that any of the respondents were required to provide information to Ms. Rae in order for her to obtain financing. I find Ms. Rae and KH entered into an unconditional agreement to purchase the modular home from EVHL. This means Ms. Rae agreed to purchase the modular home regardless of whether or not she was able to arrange financing, and EVHL’s alleged failure to provide certain information for financing would not amount to contractual repudiation.
28. Ms. Rae also alleges that she would not have been able to move into the modular home by the 3rd contract’s November 1, 2021 possession date because EVHL would not have had it ready. However, as with the financing allegations above, she provided no documentary evidence to support her allegation that EVHL was unable to provide possession of the modular home by November 1, 2021, and EVHL itself says the home was provided. Further, and notably, Ms. Rae herself says she cancelled the contract on October 21, 2021, which is 10 days before the contract’s listed November 1, 2021 possession date. As noted, Ms. Rae bears the burden of proving her claims. Here, I find she has not met her burden of proving that EVHL failed to provide the modular home as contractually agreed.
29. As I find EVHL did not repudiate the contract, it was still a valid contract when Ms. Rae cancelled it on October 21, 2021. By doing so, I find that Ms. Rae repudiated the contract. There is little evidence about what occurred after Ms. Rae cancelled the contract. However, I find it undisputed that Ms. Rae did not take possession of any modular home, so I find EVHL accepted Ms. Rae’s repudiation. It follows that she is not entitled to a refund of the deposit. So, I dismiss Ms. Rae’s claims.
CRT fees and 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 Ms. Rae was unsuccessful, I dismiss her claims for reimbursement of CRT fees and dispute-related expenses.
ORDER
31. I dismiss Ms. Rae’s claims and this dispute.
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Leah Volkers, Tribunal Member |