Date Issued: December 3, 2024

File: SC-2023-012123

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Kambere v. Castillo, 2024 BCCRT 1224

Between:

JACQUELYN KAMBERE

Applicant

And:

KIMARA CASTILLO (also known as KIMARA YOUNG)

Respondent

REASONS FOR DECISION
Tribunal Member:	Megan Stewart
Date of Hearing:	December 2, 2024

INTRODUCTION

1.      This dispute is about concert tickets.

2.      Jacquelyn Kambere says she had an agreement with Kimara Castillo (also known as Kimara Young) for tickets to the Taylor Swift concert in Vancouver on December 7, 2024. Mrs. Kambere says Mrs. Young broke the agreement. Mrs. Kambere asks that I order Mrs. Young to transfer her concert tickets for two seats next to each other at the price Mrs. Young paid for the tickets. Though she does not ask for damages (money), Mrs. Kambere values the tickets at $5,000.

3.      Mrs. Young denies the parties had any agreement for concert tickets. She asks that I dismiss Mrs. Kambere’s claims.

4.      Mrs. Kambere is self-represented. Connor Swick, an articled student, represents Mrs. Young.

JURISDICTION AND PROCEDURE

5.      The Civil Resolution Tribunal (CRT) has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). CRTA section 2 says 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. These are the CRT’s formal written reasons.

6.      CRTA section 39 says the CRT has discretion to decide the hearing’s format, including by writing, telephone, videoconferencing, email, or a combination of these. In a November 14, 2024 preliminary decision, I ordered that this dispute proceed by way of an expedited oral hearing, given the concert’s forthcoming date. The parties exchanged documentary evidence before the hearing, which was conducted by telephone on December 2, 2024.

7.      Under CRTA section 61, the CRT may make any order or give any direction in relation to a CRT proceeding it thinks necessary to achieve the CRT’s objects of the CRT in accordance with its mandate. Mrs. Young indicated that she also goes by Kimara Young, and prefers to be addressed as “Mrs. Young”. So, I have exercised my discretion under CRTA section 61 to amend the style of cause (title page) above to include Mrs. Young’s preferred name.

8.      CRTA section 42 says the CRT may accept as evidence information it considers relevant, necessary, and appropriate, whether or not the information would be admissible in court. The CRT may also ask questions of the parties and witnesses, and inform itself in any other way it considers appropriate.

9.      Where permitted by CRTA section 118, 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

10.   The issues in this dispute are:

a.    Did the parties have an agreement for the concert tickets, and if so, did Mrs. Young breach it?

b.    Must Mrs. Young transfer Mrs. Kambere two of the concert tickets for the price Mrs. Young paid for the tickets?

EVIDENCE AND ANALYSIS

11.   As the applicant in this civil proceeding, Mrs. Kambere must prove her claims on a balance of probabilities, meaning more likely than not. I have considered all the parties’ submissions and evidence, but I only refer to information I find necessary to explain my decision.

Background

12.   On November 2, 2023, it was announced that Taylor Swift’s The Eras Tour had added three Vancouver concert dates in December 2024. The ticket sales process was phased. First, fans and those wanting to buy tickets had to register with Ticketmaster by November 4, 2023. A limited number of registrants then received an access code, which would allow them to buy up to four tickets starting November 9, 2023. Having an access code did not guarantee being able to buy tickets. Instead, they were sold on a first-come, first-served basis once sales opened.

13.   The parties were friends, and both wanted to attend the concert with their daughters. So, they both registered with Ticketmaster on November 2. However, only Mrs. Young received an access code, and ultimately, she bought four tickets.

14.   Mrs. Kambere says that before the tickets went on sale, the parties agreed that if one of them was able to buy tickets, they would also get tickets for the other person. Mrs. Kambere says that after Mrs. Young bought the tickets, she changed her mind about providing two of them to Mrs. Kambere, which was a breach of the parties’ agreement.

15.   Mrs. Young denies the parties had such an agreement. She says they did not discuss a purchase price or any details of a ticket sale, and that Mrs. Kambere is just trying to “extract” tickets from her after discovering Mrs. Young was able to buy some.

Did the parties have an agreement for the concert tickets, and if so, did Mrs. Young breach it?

16.   To create a legally binding agreement, parties must have a “meeting of the minds” on the agreement’s essential terms.[1] The test is objective, meaning it is not what the parties subjectively intended that matters, but whether from the perspective of a reasonable bystander, they intended to reach an agreement.[2]

17.   Importantly, the requirement for certainty of the agreement’s terms must be balanced against the “reality of transactional negotiations”. That is, sometimes parties will intentionally leave gaps in an agreement for future accommodation. In those circumstances, the court (and the CRT) should not interpret the need for certainty so rigidly as to undermine the parties’ intention to create a binding agreement.[3]

18.   All this is to say, there must be sufficient evidence that the parties meant to contract with each other and that the essential terms are clear from an objective point of view, bearing in mind that some information may have deliberately been left out. This means that establishing whether there is a legally binding agreement is, largely, a fact-driven exercise.

19.   I find the best evidence of whether the parties reached an agreement is the text messages they exchanged in November 2023.

20.   Those messages show that on November 2, Mrs. Young asked Mrs. Kambere to “register too please” to “increase our chances”, and Mrs. Kambere replied that she “already did!!” The messages went on to say that Mrs. Kambere hoped at least one of the parties would get a “code”, and Mrs. Young agreeing “right”.

21.   I find this exchange shows the context in which the parties registered for access codes. In particular, I find the messages confirm the parties intended to work together to improve both of their chances of getting concert tickets. Mrs. Young said she also had conversations with other friends about trying to get tickets, and that that none of these conversations, including the text conversation with Mrs. Kambere, created binding agreements. However, Mrs. Young did not provide documentary evidence of these other conversations, so I do not know precisely what they said.

22.   As noted above, only Mrs. Young got an access code. On November 8, Mrs. Kambere texted Mrs. Young asking “If we don’t get a code can you add on 2 tickets for us? (prayer emoji)”. Mrs. Young replied, “I can buy tickets too because we want to sit together”. Mrs. Kambere “loved” that comment, and texted back “You’re the best (triple heart emoji)”. I find this text exchange contained a clear offer by Mrs. Young to buy tickets for Mrs. Kambere, which Mrs. Kambere accepted.

23.   A promise is not, as a general rule, binding as a contract unless it is made under seal or supported by some “consideration”. This means that something of value in the eyes of the law must be given to make a promise enforceable, and an informal gratuitous promise does not amount to a contract.[4] Here, I find the promise of the tickets was not gratuitous. It was contingent on Mrs. Kambere paying Mrs. Young for the tickets once Mrs. Young secured them. In the context of the parties collaborating to improve their odds, I find the offer, acceptance, and consideration described above created a binding agreement.

24.   The following day, November 9, the parties exchanged more messages before the tickets went on sale. Specifically, Mrs. Young asked Mrs. Kambere what her budget was. Mrs. Kambere replied “I have no idea what to expect for price. $500?”

25.   Typically, price is an essential contractual term. However, in these circumstances, where it was unclear beforehand how much Mrs. Young was going to have to spend on the tickets and what seats she would get, I find the parties deliberately left the tickets’ purchase price out of the agreement.

26.   Instead, I find there was an implied term that once Mrs. Young confirmed all the ticket charges, she would offer two of them to Mrs. Kambere at the price she paid. I find this implied term is supported by what happened next.

27.   Later on November 9, Mrs. Kambere texted to ask Mrs. Young if she had had any luck getting tickets. Mrs. Young responded with a screenshot confirming her ticket purchase and order number. Mrs. Kambere wrote back “Omg the girls (meaning the parties’ daughters) are going to go crazy!!!”, and asking how much she owed Mrs. Young. Mrs. Young said she would “deal with it” when she got back, as she was out of the country. I find a reasonable person would have taken this as confirmation that Mrs. Young intended to provide Mrs. Kambere two concert tickets at the price she paid for them once she figured that out.

28.   On November 22, 2023, Mrs. Kambere texted Mrs. Young to ask if she had sorted out what Mrs. Kambere owed her for the tickets. Mrs. Young said she was in a “jam” because her sister wanted her to take her niece to the concert. Mrs. Kambere expressed disappointment, saying the parties had an agreement. Mrs. Young replied that she “made (an) offer without a second thought” and “it was a kind gesture on (her own) behalf”. Mrs. Kambere agreed, and said she would have done the same had she gotten the access code. A few days later, Mrs. Kambere texted Mrs. Young again to try and sort out the tickets. There is no evidence Mrs. Young responded to Mrs. Kambere’s text.

29.   Based on the above, I find Mrs. Young breached the parties’ agreement by failing to provide Mrs. Kambere with two of the concert tickets she purchased at the price she paid for them.

Must Mrs. Young transfer Mrs. Kambere two of the concert tickets for the price Mrs. Young paid for the tickets?

30.   I turn to the remedy. Mrs. Kambere asks that I order Mrs. Young to produce her November 9, 2023 invoice for the concert tickets, and then to provide her two tickets for seats next to each other. Implicit in Mrs. Kambere’s request is that the price she pays Mrs. Young for the tickets be the same price Mrs. Young paid for the tickets.

31.   This type of remedy is called “specific performance”. It may be ordered when a non-breaching party can demonstrate that the subject of the agreement is unique, and a monetary award is insufficient to resolve the situation.

32.   Given the uniqueness of the concert tickets, I find Mrs. Kambere’s requested remedy is appropriate, with the exception of production of the invoice. Mrs. Young submitted the invoice in evidence, so there is no need to order that.

33.   It is undisputed that comparable tickets are now selling for over $9,000 each. Mrs. Young argues that means specific performance of the agreement exceeds the CRT’s $5,000 small claims monetary limit, and so this claim is outside the CRT’s jurisdiction. In short, Mrs. Young says the CRT cannot order specific performance.

34.   CRTA section 118(1) says the CRT has jurisdiction to resolve a claim in the nature of “specific performance of an agreement relating to personal property or services”, “if the amount of the claim is less than or equal to ($5,000)” (my bold emphasis). There is no reference to the value of the personal property or services that forms the subject of the agreement. In contrast, section 3(1) of the Small Claims Act, which sets out the BC Provincial Court’s jurisdiction over small claims matters, says the Provincial Court can decide “specific performance of an agreement relating to personal property or services (…) if the amount claimed or the value of the personal property or services is equal to or less than ($35,000)” (my bold emphasis).[5] Had the legislature similarly intended to limit the CRT’s jurisdiction regarding claims for specific performance, I find it could have specified that in the same way it did in the Small Claims Act.

35.   Even if I am wrong, and the CRTA limits the CRT’s small claims jurisdiction to order specific performance of an agreement for personal property or services worth $5,000 or less, I find on the facts of this dispute the value of the concert tickets is the price Mrs. Young paid for them on November 9, 2023. This is because I find the monetary value of the lost opportunity to Mrs. Kambere is the tickets’ face value, that is, the Ticketmaster price she would have paid had Mrs. Young followed through with the agreement. I find this is the case because Mrs. Kambere confirmed she intends to go to the concert with her daughter, and not to resell the tickets at current market value. As explained below, Mrs. Young’s purchase price for the tickets is well within the CRT’s small claims monetary limit.

36.   The total price for four tickets was $2,295.40. So, I find Mrs. Kambere must pay Mrs. Young $1,147.70 for two tickets. Since the four tickets Mrs. Young bought are all together, I find that the tickets she offers Mrs. Kambere must be next to each other.

CRT FEES AND DISPUTE-RELATED EXPENSES

37.   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. I see no reason in this case not to follow that general rule. As Mrs. Kambere was successful, I find she is entitled to reimbursement of $175 for CRT fees, and $12.27 for registered mail to serve the Dispute Notice on Mrs. Young. I dismiss her claim for a $25 raffle ticket to win Taylor Swift tickets, as I do not consider that a reasonable expense directly related to the conduct of the CRT process under CRT rule 9.5(2)(c).

ORDERS

38.   I order Mrs. Young to transfer Mrs. Kambere two tickets next to each other for Taylor Swift’s The Eras Tour concert in Vancouver on Saturday, December 7, 2024, on the following terms:

a.    The concert tickets must be two of those purchased by Mrs. Young on November 9, 2023.

b.    Mrs. Kambere must e-transfer, or arrange payment by another mutually acceptable means, $1,147.70 to Mrs. Young for the tickets by no later than 5pm PST on Thursday, December 5, 2024.

c.    Mrs. Young must then arrange for the tickets to be made available to Mrs. Kambere within 24 hours of Mrs. Kambere’s payment.

39.   Within 14 days of the date of this decision, I order Mrs. Young to pay Mrs. Kambere a total of $187.27, including $175 for CRT fees, and $12.27 for delivery of the Dispute Notice.

40.   I dismiss Mrs. Kambere’s remaining dispute-related expense claim.

41.   Mrs. Kambere is entitled to post-judgment interest, as applicable.

42.   This is a validated decision and order. 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.