Date Issued: December 8, 2023

File: SC-2022-010078

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Kunka v. McKeown, 2023 BCCRT 1077

Between:

ANTHONY KUNKA

Applicant

And:

LARA MCKEOWN

Respondent

REASONS FOR DECISION
Tribunal Member:	Alison Wake

INTRODUCTION

1.      Anthony Kunka claims $3,365.52 for services and items he says he provided to Lara McKeown, including flight expenses, tree removal services, machine parts, and fire extinguishers. Mr. Kunka represents himself.

2.      Ms. McKeown agrees with some of Mr. Kunka’s claims, but says she did not agree to pay for most of the claimed expenses, and has already paid for others. Ms. McKeown represents herself.

JURISDICTION AND PROCEDURE

3.      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.

4.      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 some respects, the parties in this dispute call into question the credibility, or truthfulness, of the other. 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.

5.      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.

ISSUE

6.      The issue in this dispute is whether Ms. McKeown must pay Mr. Kunka for any or all of his claimed expenses, discussed in more detail below.

EVIDENCE AND ANALYSIS

7.      In a civil proceeding like this one, as the applicant Mr. Kunka must prove his claims on a balance of probabilities (meaning “more likely than not”). While I have read all the parties’ submitted evidence and arguments, I have only referred to those necessary to explain my decision. I note that Ms. McKeown had the opportunity to provide documentary evidence but did not do so.

8.      Mr. Kunka says Ms. McKeown owes him for various goods and services he provided her. Mr. Kunka breaks down his claims as follows:

•         $2,548 for flight expenses,

•         $456 for tree removal and firewood preparation,

•         $218.26 for assorted machine parts,

•         $115.68 for 3 bolts,

•         $128.63 for 4 fire extinguishers,

•         $78.95 for 2.5% interest.

9.      These expenses total $3,545.52. Mr. Kunka acknowledges receiving $180 in gas and cash from Ms. McKeown at some point, so he claims the outstanding balance of $3,365.52.

Flying expenses

10.   Mr. Kunka claims $2,548 for 9.8 hours of float plane transportation at $260 per hour. I infer Mr. Kunka owns the float plane and uses it to fly to remote locations. Mr. Kunka describes several flights in June, August, and September 2022, and says that on each trip he delivered parts and supplies to Ms. McKeown’s cabin at a fly-in lake. He also argues that he flew Ms. McKeown to the lake, but does not say when, or how many times.

11.   Ms. McKeown agrees that Mr. Kunka flew her to the lake, but says that he offered to do so as a friend. She says that he only ever asked her to provide fuel in exchange, which she did.

12.   Mr. Kunka provided 2 receipts for aviation fuel in support of this claim. The first is for $198.75 on June 14, 2022, and the second is for $225.25 on September 3, 2022. Mr. Kunka did not explain whether Ms. McKeown accompanied him on these trips or whether he delivered supplies to her. As noted, he acknowledges that Ms. McKeown provided him $80 worth of fuel and $100 in cash at some point.

13.   The only other evidence Mr. Kunka provided in support of his claims is a November 15, 2022 invoice addressed to Ms. McKeown. It includes the claimed amounts for the flight expenses, tree removal, machine parts and bolts. There are handwritten additions at the bottom of the invoice for the fire extinguishers and interest. Ms. McKeown acknowledges receiving the invoice but says that Mr. Kunka only created it after their friendship ended, and that Mr. Kunka had never asked for payment for the claimed items before that.

14.   Overall, I find Mr. Kunka has not proven his claim for float plane transportation. He did not provide any evidence to show that he and Ms. McKeown had an agreement that she would pay him the claimed $260 per hour for flying time. He says that Ms. McKeown paid for similar flights in 2021, but provided no documentary evidence in support of this. Other than his vague descriptions of the flights he took, he provided no evidence to show that he spent the claimed 9.8 hours flying Ms. McKeown personally or transporting items for her cabin.

15.   I find Mr. Kunka has not provided sufficient evidence to support a finding that he is entitled to payment for the alleged float plane trips, beyond the $180 he acknowledges he already received. I dismiss this portion of Mr. Kunka’s claim.

Tree removal and firewood preparation

16.   Mr. Kunka claims $456 for 12 hours of labour at $38 per hour, which he says he spent removing dangerous trees from Ms. McKeown’s property and cutting them into firewood. Ms. McKeown agrees that Mr. Kunka performed this work, but says he did so as a gift to her, and Mr. Kunka refused payment when she offered. In submissions, Ms. McKeown says she is still willing to pay for this work. However, she says it took a maximum of 4 hours, rather than the 12 hours Mr. Kunka claims.

17.   Other than the invoice discussed above, Mr. Kunka did not provide any evidence to support the claimed 12 hours of work, such as a time log. He did not provide details about the number of trees he cut down, or any other evidence such as photographs of the work done. I find Mr. Kunka has not proven he is entitled to payment for 12 hours of work. However, as Ms. McKeown has agreed to pay him for 4 hours of work and does not dispute his claimed hourly rate of $38, I order her to pay $152 for the tree removal.

Machine parts

18.   Mr. Kunka claims a total of $218.26 for “parts”. This includes $60.67 for a hose, $12.81 for a belt, $45.62 for a pulley, and $99.16 for a lawn mower. Ms. McKeown says that she paid Mr. Kunka for these parts in cash when he delivered them.

19.   Mr. Kunka did not provide any evidence in support of this portion of his claim, such as a receipt for the parts. He did not provide any further details about the parts or when or where he purchased them. In the absence of any supporting evidence, I find this portion of Mr. Kunka’s claim unproven, and I dismiss it.

Bolts

20.   Mr. Kunka claims $115.68 for 3 “machined bolts”. In Ms. McKeown’s Dispute Response, she says that she ordered and paid for the bolts online, and Mr. Kunka took them to a shop to adjust them and make them “work better”. I infer Mr. Kunka claims the cost of this adjustment.

21.   Ms. McKeown agrees that she has not repaid Mr. Kunka for the bolt adjustment, but says the claimed amount is unreasonable, because the bolts only cost about $20 each. Mr. Kunka did not respond to this or provide evidence in support of this claim, such as an invoice for the bolt adjustment.

22.   Although Ms. McKeown agrees to pay Mr. Kunka for the bolts, I find he has not proven he is entitled to the claimed $115.68. In the absence of any evidence of the actual adjustment cost or how long the adjustment took, on a judgment basis, I award Mr. Kunka $25 for this portion of his claim.

Fire extinguishers

23.   Mr. Kunka claims $128.63 for 4 fire extinguishers he says he purchased for Ms. McKeown. Ms. McKeown does not deny this, but says that Mr. Kunka offered her the extinguishers as a gift. This means that the burden is on Ms. McKeown to prove that Mr. Kunka intended the fire extinguishers to be a gift (see Pecore v. Pecore, 2007 SCC 17).

24.   Ms. McKeown says that Mr. Kunka previously refused her offers of payment for the fire extinguishers. She also says that she sent an e-transfer for the extinguishers and the tree removal, but Mr. Kunka declined it. However, she provided no evidence of this. On balance, I find Ms. McKeown has not proven that Mr. Kunka gifted the fire extinguishers to her.

25.   In any event, Ms. McKeown agrees in submissions to repay Mr. Kunka for the fire extinguishers. She does not dispute the claimed amount of $128.63, so I order her to pay it.

26.   In summary, I order Ms. McKeown to pay Mr. Kunka $152 for the tree removal, $25 for the bolt adjustment, and $128.63 for the fire extinguishers. This totals $305.63.

Interest

27.   Lastly, Mr. Kunka claims $78.95 in interest, based on a “service charge” of 2.5% identified in the November 15, 2022 invoice. There is no evidence that Ms. McKeown agreed to this interest rate, and Mr. Kunka cannot unilaterally impose it in the invoice (see N.B.C. Mechanical Inc. v. A.H. Lundberg Equipment Ltd., 1999 BCCA 775, at paragraph 35).

28.   In the absence of an agreement about interest, Mr. Kunka is entitled to pre-judgment interest under the Court Order Interest Act. As Mr. Kunka did not provide evidence of the precise dates he incurred these expenses, I find it appropriate to order interest from the invoice date of November 15, 2022, to the date of this decision. This equals $14.09.

CRT FEES AND EXPENSES

29.   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. Mr. Kunka paid $175 in CRT fees and Ms. McKeown paid $25. There was divided success between the parties, with Mr. Kunka succeeding in recovering a small portion of the overall amount claimed. In the circumstances, I find it appropriate for each party to bear the cost of their own CRT fees, so I make no order for reimbursement. Neither party claimed dispute-related expenses.

ORDERS

30.   Within 21 days of this decision, I order Ms. McKeown to pay Mr. Kunka a total of $319.72, broken down as follows:

a.    $305.63 in debt, and

b.    $14.09 in pre-judgment interest under the Court Order Interest Act.

31.   Mr. Kunka is entitled to post-judgment interest, as applicable.

32.   I dismiss Mr. Kunka’s remaining claims.

 

 

33.   Under section 58.1 of the CRTA, a validated copy of the CRT’s order can be enforced through the Provincial Court of British Columbia. Once filed, a CRT order has the same force and effect as an order of the Provincial Court of British Columbia.