Original Decision Issued: March 6, 2025

Amended Decision Issued: April 9, 2025

Files: SC-2023-005138

and SC-CC-2024-005994

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Uppal v. Hong Photography and Cinema Inc., 2025 BCCRT 298

Between:

ANEET UPPAL and INDERPAL MANN

Applicants

And:

HONG PHOTOGRAPHY AND CINEMA INC.

Respondent

And:

ANEET UPPAL and INDERPAL MANN

RespondentS BY COUNTERCLAIM

AMENDED REASONS FOR DECISION
Tribunal Member:	Micah Carmody

INTRODUCTION

1.      The applicants, Aneet Uppal and Inderpal Mann, hired the respondent, Hong Photography and Cinema Inc. (Hong), to take photos and video of their wedding. The applicants paid the full $12,337.50 contract price, but only received 4 of the 10 hours of service they contracted for. They claim $5,000 as a refund for the unused services.

2.      Hong says the applicants are not entitled to a refund because they breached the contract several times by changing dates. Hong counterclaims $5,000 in contractual penalties, or alternatively, damages. The applicants say the penalty clauses are not valid, and in any event, Hong agreed to the date changes.

3.      Ms. Uppal represents the applicants. Hong is represented by its owner, Ellen Ho.

JURISDICTION AND PROCEDURE

4.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has authority over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA says the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly.

5.      The CRT conducts most hearings by written submissions, but it has discretion to decide the hearing’s format, including in writing or by telephone or videoconference. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. The key facts are largely undisputed, and credibility is not central to this dispute. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I decided to hear this dispute through written submissions.

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 court.

7.      Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to pay money, return personal property, or do things required by an agreement about personal property or services. The order may include any terms or conditions the CRT considers appropriate.

Jurisdictional Defect

8.      After issuing my original decision, it came to my attention that some of Hong’s evidence, comprising several emails exchanged between the parties, was not before me. I am satisfied that Hong had submitted the evidence to the CRT by email, but the CRT did not receive it.

9.      At common law, an administrative tribunal may reopen a proceeding to cure a jurisdictional defect, which is reflected in CRTA section 51(3). In Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, 2014 BCCA 499, the British Columbia Court of Appeal discussed the scope of the power to reopen a hearing to cure a jurisdictional defect. Among other things, the court found it is a jurisdictional defect for an administrative tribunal to fail to provide a party with procedural fairness.

10.   I find it would be a breach of procedural fairness to make a decision without considering all the parties’ evidence. So, I decided to reopen this proceeding to address Hong’s email evidence. I invited the applicants to make submissions on the new evidence. Hong was given a final reply.

11.   I considered the email evidence and the parties’ additional submissions. Hong argued for a different outcome, but did not explain how the new evidence could change the decision. Ultimately, most of the emails were already in the applicants’ evidence, and the new emails did not change the outcome of this decision, so I have not issued an amended order. All amendments to this decision are underlined.

ISSUES

12.   The issues in this dispute are:

a.    Who breached the contract?

b.    Are the applicants entitled to any refund?

c.    Is Hong entitled to damages or penalties?

EVIDENCE AND ANALYSIS

13.   In a civil proceeding like this one, the applicants must prove their claim on a balance of probabilities, meaning more likely than not. Hong must prove its counterclaim to the same standard. While I have considered all the parties’ evidence and submissions, I only refer to what is necessary to explain my decision.

Background

14.   In October 2020, the parties signed a wedding photography agreement. The agreement said Hong would provide 10 hours of photography and videography with 2 photographers and 2 videographers, a 4-minute feature film, an online gallery, 150 edited digital images, and all unedited digital images (“around 600-700 photos”).

15.   The agreement said the price was $12,750, although the price after tax was $12,337.50. I find, based on the parties’ subsequent communication and payments, that $12,337.50 was the correct total price. The applicants paid a 50% retainer ($6,168.75) when they signed the agreement.

16.   The agreement said the wedding was to happen on May 8, 2021, with the pre-ceremony, ceremony, and reception all at the same location. In March 2021, Hong agreed to the applicants’ request to change the date to May 9, 2021.

17.   In April 2021, Ms. Uppal emailed Hong to discuss COVID-19 restrictions and the possibility of rescheduling the wedding. They worked together to find a new date.

18.   Hong prepared a second agreement that the parties signed in June 2021. The second agreement specified a July 25, 2021 wedding date, with 5 hours of photography and videography on that day and 5 hours on a reception day to be determined before the end of 2021. In one place the contract said the wedding ceremony would be on May 9, 2020, but I find this was an error that did not reflect the parties’ intentions given the contract was signed in June 2021. Like the first agreement, the second agreement said the retainer was non-refundable, and the balance was due two weeks before the wedding. The second contract included an additional clause stating that if the client needed to postpone the wedding due to COVID-19, there would be a $2,000 penalty.

19.   I acknowledge that the applicants say they felt “compelled” to accept the penalty clause that Hong inserted into the second agreement. They say refusal to do so would have resulted in the forfeiture of their retainer. However, they had already paid the retainer, and it was explicitly non-refundable in both agreements. Further, they negotiated new terms in their favour – specifically, the split wedding and reception dates. The evidence falls far short of establishing duress, fraud, or any other issue undermining the agreement. I find the second agreement was valid, including its penalty clause.

20.   Before the July 25, 2021 wedding, the applicants paid the remaining 50% of the contract price. In a July 10, 2021 email, Hong said that if the applicants decided not to use Hong for their reception, they could discuss a partial refund after deducting a $2,000 penalty. However, the parties quickly established November 11, 2021 for the reception.

21.   The wedding “ceremony” on July 25, 2021, included the ceremony, family photos, a cocktail hour, a reception, cake cutting, dancing, speeches, and dinner. Hong provided 4 hours of photography and videography services. Hong approached the applicants during the dinner and suggested allocating the additional hour to the applicants’ future reception. The applicants agreed.

Reception rescheduling

22.   Based on the parties’ emails, acknowledging that the parties spoke on the phone as well, I have put together the following timeline of their reception rescheduling attempts.

23.   On September 30, 2021, the applicants asked to postpone the November 11, 2021 reception date. After some back and forth, on October 5, 2021, the parties agreed on a new date - April 14, 2022.

24.   On February 18, 2022, the applicants asked to change the reception date from April 14, 2022 to later in 2022. Hong agreed and suggested November 2022. On April 8, 2022, the parties agreed on November 11, 2022.

25.   On October 3, 2022, the applicants emailed Hong and advised that Mr. Mann required surgery and would not recover for November 11, 2022. They asked about dates in August 2023. Hong said August was very busy unless they could do Monday or Tuesday. The applicants asked again for Hong’s availability in August, or September. Hong apparently did not respond.

26.   On February 16, 2023, the applicants emailed Hong to ask if they could forfeit the remaining 6 hours of service in exchange for a $5,500 refund. Hong said that payment was non-refundable, and that it was unwilling to provide a refund because it had made so many date changes for the applicants.

27.   The applicants noted that the contract said only the $6,168.75 retainer was non-refundable. They counteroffered but Hong apparently did not respond. On April 5, 2023, the applicants said they would “go through with a party” in summer 2024 or 2025 and use the remaining services under the contract then. On May 7, 2023, Hong responded that there would be no future booking.

Contract breach

28.   The applicants allege Hong breached the contract in two ways. First, they say the photography and videography quality did not meet industry standards. I find they have not proven this. Generally, a party asserting that a professional’s work fell below the required standard must provide expert evidence to prove it. I find this applies to photography and videography, because an ordinary person does not know the standards of those industries. The exceptions to this general rule are when the work is obviously substandard, or the deficiency relates to something non-technical (see Schellenberg v. Wawanesa Mutual Insurance Company, 2019 BCSC 196). The applicants did not provide expert evidence. The photos in evidence do not demonstrate any obvious deficiency. The video is professionally edited. Also, Ms. Uppal said in a January 5, 2022 email that the photos turned out “great”. So, I find the applicants have not proven a breach of contract for quality. I also note that the contract said there would be no refunds based on the client’s dissatisfaction with the photography and videography style.

29.   The main breach the applicants allege is that they have paid for 10 hours of service but only received 4, and consequently also received less than they contracted for in terms of number of photos and minutes of video footage.

30.   For its part, Hong says any failure to meet its obligations was due to the applicant’s failure to set and keep a reception date. Hong also says it “remains willing to complete the remaining hours of service once a reception date is confirmed.” I find that Hong cannot say it remains willing to fulfill its contractual obligations after making clear, on May 7, 2023, that there would be no future booking. Further, in an April 5, 2023 letter, after reviewing all the correspondence and setting out all the events and its position, Hong said it considered the wedding reception cancelled and all work completed. At that point, I find Hong ended the contract.

31.   Hong says the applicants breached the parties’ contract by making multiple postponements. I find the applicants first postponed the wedding ceremony by agreement and with a new contract. That was not a contractual breach. I find the applicants postponed the reception an additional three times, but each time with Hong’s explicit written agreement. I find those were not contractual breaches.

32.   Hong asserts that the contract said in the event of a postponement within 3 months of the wedding day, the applicants were responsible for making the full payment. I disagree. The contract said the applicants were responsible for full payment in the event of a cancellation – not an agreed postponement – within three months of the wedding day. The applicants never cancelled their wedding or reception, they only postponed it with Hong’s agreement in writing. I find only the retainer was non-refundable under the contract. So, because Hong refused to provide the contracted services, the applicants are entitled to damages. I assess the damages below after considering the effect of the penalty clause.

Penalties

33.   Hong counterclaims $5,000 in penalties, without providing a breakdown. The second agreement’s penalty clause said that if the applicants needed to postpone the wedding due to COVID-19, a $2,000 penalty would apply.

34.   The penalty clause must be read in context. It appears in a provision dealing with the non-refundable retainer fee and the final payment. I find the penalty clause was meant to apply in two situations. The first is where the wedding (or a portion of it) was postponed for COVID-19 but ultimately happened and Hong photographed it. In that case, Hong could ask for the penalty in advance of rescheduling, or before providing the finished product. The second situation is where the clients declined to have Hong photograph the wedding, in which case they were entitled to a refund of the total amount, less the retainer and any applicable penalties. Neither of those situations occurred here. Hong agreed to the postponements until it decided it would no longer provide the services. The only time it referred to a penalty was in its July 10, 2021 email, when Hong said it would provide a refund after deducting a $2,000 penalty if the applicants decided not to use Hong for their reception. This is consistent with my interpretation of the penalty clause. So, I find the applicants are not required to pay any penalties. I also note that at least one postponement was for a surgery rather than COVID-19, so it is not clear how Hong could claim more than $4,000 in penalties had the penalty clause applied.

Damages, interest and CRT fees

35.   Damages for breach of contract are intended to put the non-breaching party in the position they would have been in had the contract been carried out as agreed (see Water’s Edge Resort Ltd. v. Canada (Attorney General), 2015 BCCA 219).

36.   In broad strokes, the applicants paid for 10 hours of service but only received four. The remaining six hours were to be applied to a future reception. The applicants have not held their reception. They did not provide evidence about what it would cost to hire another photographer to provide 6 hours of photography and videography services similar to Hong’s.

37.   As noted above, the applicants received photos and video of not just their wedding ceremony, but also a cocktail hour, a reception, cake cutting, dancing, speeches, and dinner. To some extent, they have documentation of a “complete” wedding, just condensed. As a result, assessing damages is not as simple as saying that they should be refunded for the six hours of services they did not receive.

38.   Another way of assessing damages here is to look at the quantity of photos and video. The applicants were supposed to receive a 4-minute feature film, 150 edited digital images, and “around 600-700” unedited digital images. The applicants do not dispute Hong’s evidence that it provided 90 edited digital images and 503 “moderately edited’ digital images. They also received a 3-minute professionally-edited film, and 22 minutes of raw footage.

39.   In some cases, the best that can be achieved is a rough estimate of the amount of damages that have been suffered. Considering all the above, I conclude that the applicants received between 60% and 65% of what they contracted for. In other words, they should receive a refund of 35-40% of the $12,337.50 contract price. I find they are entitled to $4,500.

40.   The Court Order Interest Act applies to the CRT. The applicants are entitled to pre-judgment interest on the $4,500 in damages from April 5, 2023, when I find Hong ended the contract, to the date of this decision. This equals $461.64.

41.   Under CRTA section 49 and the CRT rules, a successful party is generally entitled to reimbursement of their CRT fees and reasonable dispute-related expenses. The applicants were successful, so I find they are entitled to reimbursement of $175 in paid CRT fees. I dismiss Hong’s claim for CRT fees. Neither party claims dispute-related expenses.

ORDERS

42.   Within 21 days of the date of this decision, I order Hong to pay the applicants a total of $5,091.64, broken down as follows:

a.    $4,500 in damages,

b.    $416.64 in pre-judgment interest under the Court Order Interest Act, and

c.    $175 in CRT fees.

43.   The applicants are entitled to post-judgment interest, as applicable.

44.   I dismiss Hong’s claims.

45.   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 a court order.