Date Issued: November 7, 2023

File: SC-2022-008135

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Mitenbergs v. Rouse, 2023 BCCRT 958

Between:

JANE ALEXANDRA MITENBERGS

Applicant

And:

BEN ROUSE, LESLEY BILLINGS, and A PLUS AWNINGS LTD.

Respondents

REASONS FOR DECISION
Tribunal Member:	Christopher C. Rivers

 

INTRODUCTION

1.      This dispute is about landscaping services. The applicant, Jane Alexandra Mitenbergs, says she was hired by the respondents, Ben Rouse, Lesley Billings, and A Plus Awnings Ltd. (A Plus) to perform residential gardening and landscaping. Ms. Mitenbergs says the respondents refused to pay her final invoices, kept some of her tools, slandered her, and threatened her. She claims $1,842.66 for her outstanding invoices and $1,186 for her tools. She also asks for an order that the respondents prepare notarized letters promising to stop slandering her and ceasing all negative activities that involve her name.

2.      The respondents disagree with Ms. Mitenbergs’ claims. They say they overpaid Ms. Mitenbergs based on her original invoice, though they did not file a counterclaim for the alleged overpayment. They also say they did not keep any of the applicant’s tools. Finally, the respondents deny slandering or threatening Ms. Mitenbergs. They ask that I dismiss Ms. Mitenbergs’ claims. Without meaning any disrespect, I will refer to the non-corporate respondents by their full names, as neither specified their titles.

3.      Ms. Mitenbergs is self-represented. All three respondents are represented by Lesley Billings.

4.      For the reasons that follow, I dismiss Ms. Mitenbergs’ claims.

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.

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. Some of the evidence in this dispute amounts to a “she said, they said” scenario. The credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. 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. I also note that in Yas v. Pope, 2018 BCSC 282, at paragraphs 32 to 38, the British Columbia Supreme Court recognized the CRT’s process and found that oral hearings are not necessarily required where credibility is an issue.

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.      As part of her claimed remedies, Ms. Mitenbergs seeks an order that the respondents be required to prepare notarized letters. Ordering someone to do something, or to stop doing something, is called “injunctive relief.” Injunctive relief is outside the CRT’s small claims jurisdiction, except where permitted by section 118 of the CRTA. I find there are no relevant CRTA provisions that would permit me to order the respondents to prepare such letters. So, I decline to make those orders.

9.      In her final reply submissions, Ms. Mitenbergs also claimed an unspecified amount of non-pecuniary damages and alleged the respondents violated her rights under the Freedom of Information and Protection of Privacy Act and the Personal Information Protection Act. However, she did not make these claims in her initial application and given their late addition to her argument, the respondents had no opportunity to respond to it. So, I find these claims are not before me and do not need to address them further.

10.   The respondents raise an argument that the applicant brings the claim in her personal capacity, but that invoices were sent from them from Jane Alexandra House & Garden. However, there is no evidence that Jane Alexandra House & Garden is a corporation, and not simply the name under which Ms. Mitenbergs does business. However, given my decision to dismiss Ms. Mitenberg’s claims, nothing turns on this matter.

Late Evidence

11.   Finally, each of the parties provided evidence and argument after the deadline set by CRT staff. Each of the parties had the opportunity to review and respond to the others’ late material so I find there is no actual prejudice in allowing it. Consistent with the CRT’s flexible mandate, I have allowed and considered the late evidence and submissions.

ISSUES

12.   The issues in this dispute are:

a.    Is Ms. Mitenbergs entitled to payment for her final invoices?

b.    Is Ms. Mitenbergs entitled to compensation for tools she says the respondents kept?

EVIDENCE AND ANALYSIS

13.   In a civil proceeding like this one, Ms. Mitenbergs must prove her claims on a balance of probabilities. This means “more likely than not.” I have read all the parties’ submissions and evidence but refer only to the evidence and argument that I find relevant to provide context for my decision.

14.   In or around June 2022, Ben Rouse and Lesley Billings hired Ms. Mitenbergs to perform gardening and landscaping work on their residential property’s front yard. The initial plan was limited to new garden beds and plants, but the parties agreed to additional projects over the following weeks. As discussed below, some payments were made to Ms. Mitenbergs from a bank account registered to A Plus, which Ms. Mitenbergs says is why she named A Plus as a respondent.

15.   None of the respondents argued that A Plus was not a party to the contract, and given that I dismiss Ms. Mitenbergs’ claims, nothing turns on that issue.

16.   There is no dispute that the respondents paid Ms. Mitenbergs on an ongoing basis, and I address those payments below. The respondents also provided evidence that they routinely paid for supplies and materials required by Ms. Mitenbergs to do the landscaping work.

17.   At the projects’ end, the parties disagreed on how much money the respondents owed Ms. Mitenbergs.

18.   Following a request from the respondents, Ms. Mitenbergs provided an invoice dated October 11, 2022, for a total of $8,360.91. The invoice states it “does not include cost of plants, tree, shrubs or GST” but otherwise provides no information about how the total amount was determined. The invoice shows the respondents made prior payments of $7,894.25, so the balance owing was $466.66.

19.   The respondents responded by email to Ms. Mitenbergs, saying they had already paid her $8,721.75 through a mix of e-transfers from A Plus, cash payments, and gas money.

20.   In this proceeding, the respondents provided a list of e-transfers from A Plus to Ms. Mitenbergs totaling $7,338.75. The respondents admit $132.00 of that total was for unrelated services, meaning they say they e-transferred Ms. Mitenbergs $7,206.75 for landscaping services. In addition, the respondents say they paid Ms. Mitenbergs $1,495.00 in cash, and allowed her to keep an additional $20 for gas money. This totals $8,721.75.

21.   After receiving the respondents’ emails, Ms. Mitenbergs sent a revised invoice dated October 15, 2022. The new invoice gives the respondents credit for payments of $8,721.75 but increased the overall project total to $9,188.41. This resulted in the same balance owing as the previous invoice: $466.66. So, I find the revised invoice shows Ms. Mitenbergs agrees the respondents paid her $8,721.75.

22.   On October 16, 2022, Ms. Mitenbergs sent the respondents a further invoice for 97 plants, including 1 maple tree, totaling $1,376. While not included in the invoice she sent the respondents, a handwritten list in evidence apparently prepared by Ms. Mitenbergs notes the individual charge for each plant. Added to the prior balance of $466.66, Ms. Mitenbergs claim for unpaid invoices is therefore $1,842.66, as noted above.

23.   The respondents say at the outset of the projects, Ms. Mitenbergs told them “not to worry” about the cost of plants as she repurposes plants from other jobs. They say Ms. Mitenbergs specifically told them she had found the maple tree on the roadside, an allegation that Ms. Mitenbergs does not address. The respondents also provided a text message from Ms. Mitenbergs to Ben Rouse they say they received on October 11, 2022. In it, Ms. Mitenbergs says she had “eaten” many of the projects’ costs, listing “the plants, gas, time” before saying she was upset that Ben Rouse was disputing a charge of $500. Ben Rouse asked for an invoice by text, to which Ms. Mitenbergs responded “You’ll get an invoice alright Ben. Let’s see how you react to that one.”

24.   Ms. Mitenbergs does not provide any explanation as to why she revised her invoice upwards. Ms. Mitenbergs’ explanation as to why the plant invoice was late was that she does not charge until the plants are installed, however I note receipts in evidence show the respondents apparently paid for the other materials associated with the projects on an ongoing and rolling basis. Ms. Mitenbergs says she does not charge for plants until the end as she is “not always sure where my design takes me,” but I do not find this explains why all her plant charges were presented at the end. Further, I find the text message evidence shows Ms. Mitenbergs believed she was owed a total of approximately $500 after she had concluded work, which does not align with her later invoice for $1,376 in plants. Finally, Ms. Mitenbergs provides no explanation of how or where she sourced the plants or determined their cost. If Ms. Mitenbergs had incurred costs associated with the plants, I would expect her to have provided some evidence of the same, such as receipts or an explanation. I find it was only once she received evidence of payments from the respondents showing they had paid more than she had invoiced them that Ms. Mitenbergs revised her invoice to increase the total owing and prepared a new invoice for the plants.

25.   As I find that Ms. Mitenbergs said she had “eaten” the plants’ cost, I accept that her initial invoice of October 11 included the costs of both plants and labour, despite the note on it to the contrary. I find Ms. Mitenbergs’ initial October 11, 2022 invoice is the most accurate invoice for her work, which the respondents have undisputedly paid. So, I dismiss Ms. Mitenbergs’ claim for unpaid invoices.

Tools

26.   Ms. Mitenbergs says the respondents kept some of her tools. She prepared two handwritten lists showing what tools she says the respondents kept and included prices for those tools. She totals the tools’ replacement cost as $1,186.

27.   The respondents say they did not keep any of Ms. Mitenbergs’ tools. They say they placed whatever tools Ms. Mitenbergs left behind at the end of their driveway, under a tarp. The respondents say Ms. Mitenbergs had “few tools” and mostly used the respondents’ tools.

28.   However, Ms. Mitenbergs did not provide any evidence to establish how she determined the tools’ cost, such as receipts or price listings. Without that evidence, even if she had proven the respondents had kept some or all of her tools, I would not have the evidence necessary to determine Ms. Mitenbergs’ remedy.

29.   So, I dismiss her claim for compensation for tools.

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. However, the respondents did not pay any CRT fees or claim any dispute related expenses. So, I make no order in that regard.

 

ORDER

31.   I dismiss the applicant’s claims and this dispute.