Shi v. Wang et al. Date:, 2013 BCPC 58

Citation: Shi v. Wang et al. Date: 20130313 2013 BCPC 0058 File No: 1239315 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: LIN SHI aka CELINE SHI CLAIMANT AND: CHRISTINE YIBIN WANG, TRI-CITY COMMUNITY COLLEGE, AND PETER GUOQING CHEN DEFENDANTS REASONS FOR JUDGMENT OF HER WORSHIP B. CORNISH Appearing on their own behalf: Lin Shi Appearing on their own behalf: Christine Yibin Wang and Peter Guoqing Chen

Place of Hearing: Vancouver , B.C. Date of Hearing: February 20, 2013 Date of Judgment: March 13, 2013 Introduction [ 1 ] In this Action the Claimant, Lin Shi, seeks repayment of monies paid to the Defendants pursuant to a verbal contract between them whereby the Defendants agreed to provide certain tutoring services to the Claimant's daughter. [ 2 ] The individual Defendants Peter Chen and Christine Wang are described as partners of the Defendant, Tri-City Community College (the "College"), which is a private school providing, amongst other things, English language tutoring.

The Claimant's Trial Statement [ 3 ] In her Trial Statement the Claimant says that she entered into an oral agreement with the individual Defendants on November 9, 2011 on the following terms:

a) the College would provide 22 one-to-one English tutoring lessons to the Claimant's daughter;

b) the lessons were to be provided at the College's office located at #4 – 2265 West 41st Avenue;

c) the tutoring fee was $90.00 per session; and

d) the total tutoring fee for all of the lessons was $1,980.00 (the "Course Fee"). [ 4 ] The Trial Statement further provides that the Claimant paid the Course Fee on November 9 and the College provided three individual tutoring sessions on November 9, 23 and 30 and three group lessons on November 2, November 30 and December 7.

Plainly the reference to the November 30 session as being both a group and individual session is an error which the Claimant corrected in her oral evidence at trial. [ 5 ] It is alleged that on December 14, when the Claimant and her daughter attended for the scheduled tutoring session, the classroom was empty and that she was later advised by the Defendants that they had moved to a new location at 3590 West 41st Avenue but had inadvertently failed to let her know of the move. Thereafter, the Claimant expressed her dissatisfaction to the Defendants and sought a refund of the unused portion of the Course Fee.

She alleges that the Defendants initially agreed to a refund but then advised her on January 8, 2012 that no refund would, in fact, be provided. [ 6 ] The pleadings seek a refund of all but $270.00 of the Course Fee, which equates to the cost of 3 individual sessions, plus filing fees and expenses for a total of $1,928.11. The Claimant's Evidence at Trial [ 7 ] The Claimant's evidence at trial was essentially the same as that provided in the Trial Statement.

She did, however, acknowledge that her daughter also attended individual lessons on November 16 and 30 in addition to group sessions on November 2 and December 7. However, she categorically denied the Defendants’ assertion of an additional group session on October 26. [ 8 ] With respect to the type of tutoring session, the Claimant was emphatic that her agreement was for individual sessions only and that she never agreed to any joint sessions.

She also testified that the original location of the school at 2265 West 41st Avenue was very important to her and that the new location was further from her house and parking was more difficult. [ 9 ] The Claimant also stated that shortly after the location change on December 14 and her request for a refund, she and her family left for China and that on her return in the first week of January she enrolled her daughter in new English classes at “Sylvan”.

The Defendants’ Trial Statement [ 10 ] In their Trial Statement the Defendants say that verbal agreement between the parties was entered into on October 26, 2011 not on November 9 as alleged by the Claimant and that the Claimant's daughter attended group sessions on both October 26 and November 2. They also allege that they told the Claimant that while the individual rate was $90.00 per session, this rate would be adjusted to a lower rate of $70.00 if other students also attended the session.

In short, the Defendants say that it was clear to the Claimant that while some sessions would be individual, others would be in a group format. [ 11 ] With respect to the location, the Defendants concede that they forgot to inform the Claimant of the relocation and the cancellation of the December 14 class but say that they apologized for their oversight and offered a make-up class at the new location which they say is only a "two minute" drive from the original location. [ 12 ] With respect to the refund, the Defendants say that the only reason the Claimant originally gave for requesting a refund was the location change and that in January they offered to provide classes at the original location - albeit at a different unit number, but the Claimant refused to agree.

A copy of a letter from someone named “Maria Ho” was introduced which states that the Defendants subleased a classroom at #6 – 2265 West 41st Avenue “from December 1, 2011 – February 31, 2012”. The Defendants’ Evidence at Trial

[ 13 ] The Defendants’ evidence at trial was essentially the same as the Trial Statement. They say that the Claimant was fully aware that some of the lessons would be in a group format and point to the fact that the lessons preceding November 9 were group lessons.

They also say that the Claimant’s continued attendance after the group lesson of December 7 demonstrates that she accepted the group format. [ 14 ] On the issue of the refund, the Defendants stated that it was common practice of private educational institutions to decline refunds if the student had attended more than 30% of a program and since the Claimant’s daughter had attended 7 of the 22 scheduled sessions, a refund was not available.

They conceded, however, that they had not discussed the issue of refunds with the Claimant at the time of their original agreement nor had they advised her of the existence of any applicable policy on the topic. [ 15 ] The Defendants also disputed the Claimant’s assertion that they initially agreed to a refund. Their evidence was that they simply advised the Claimant that they would discuss her request between themselves and advise her of their position on her return from China in the new year.

Discussion [ 16 ] The issues in this case are whether the Claimant is entitled to a refund for any portion of the Course Fee and if so, how much should be refunded. [ 17 ] I note from the outset that although there was a dispute regarding dates of attendance, neither party produced any documentation to corroborate their version of events. For her part, the Claimant stated that she made a note of dates on a calendar but did not produce the calendar at trial.

Similarly, while the Defendants stated that they kept attendance records and had witnesses as to the Claimant’s attendance at group sessions, neither those records nor the witnesses were produced at trial. Given this lack of potentially corroborative evidence, I asked the parties if they wished to adjourn the matter and file amended Trial Statements but both parties advised that they wished to nevertheless present their case. In the end result, other than the letter from Ms.

Ho referenced above, the only evidence presented at trial was that of the parties themselves. [ 18 ] While the parties were at issue on a number of points, there was no disagreement that they had a verbal contract whereby the Claimant would pay the Defendants for teaching services to be provided to her daughter. There was also no disagreement that the Claimant’s daughter received less than $1,980.00 worth of classes.

On the Defendant’s version of events there were 7 classes in total: 3 group sessions: October 26, November 2 and December 7, and 4 individual sessions on November 9, 16, 23 and 30 for a total fee of $570.00 and a remainder of $1,410.00.

On the Claimant’s evidence at trial, which, as noted, corrected some of the errors in her Trial Statement, there were 6 classes in total: 2 group sessions on November 2 and December 7, and 4 individual sessions on November 9, 16, 23 and 30 for a total fee of $500.00 and a remainder of $1,480.00. [ 19 ] Since the relationship between the parties is solely one of contract and given the Defendants’ candid admission that they never discussed what would happen in the event of a refund request, in the circumstances of this case or indeed, any other circumstance, there is clearly no specific term of the contract which would entitle them to keep the balance of the Course Fee. [ 20 ] With respect to the Defendants’ assertion of their reliance on the “common practice” governing tuition refunds by private educational institutions, I make two observations.

First, no evidence was offered to corroborate the Defendants’ bare assertion as to the existence, scope or application of such a practice. Second, it is difficult to understand how the Claimant can be governed by the application of a policy or practice of which she had no knowledge and thus obviously did not consent or agree to.

In short, I am not persuaded that such a practice, if it exists, is a valid or applicable basis on which the Defendants can successfully resist the Claimant’s request for a refund. [ 21 ] At trial, the Defendants submitted that when they heard of the Claimant’s dissatisfaction with the location change they took steps to accommodate her and that her refusal to accept that accommodation was unreasonable. In that regard, they point to their subsequent offer to arrange for classes in a different room (or “unit number”) at the original location and place reliance on the letter from Ms. Ho referred to above.

Unfortunately as noted, Ms. Ho did not attend the trial and the letter on its own is problematic for a number of reasons. First , it refers to a sublease “from December 1, 2011 to February 31, 2012,” which is clearly an error (there being no “February 31st”). Second, it raises the unanswered question of why the Defendants would have moved the class in the first place if they already had a sublease of the unit next door. In my view, the letter from Ms.

Ho, on its own, does little to assist the Defendants’ position. [ 22 ] At the heart of the Defendants’ position is their disagreement with the Claimant’s stated reasons for terminating their contract.

That may be so, but in the absence of any agreement between them that the monies paid by the Claimant were non refundable, there is no legal basis on which the Defendants are entitled to keep monies paid in excess of the services received. [ 23 ] Having concluded that the Claimant is entitled to a refund of monies paid in excess of the services received, the quantum of any potential refund was, on the pleadings, also the subject of dispute. At the trial, however, it became clear that the only real point of dispute was whether the Claimant’s daughter attended a group session on October 26, 2011.

If she did, the refund is $1,410.00. If she didn’t, the refund is $1,480.00. [ 24 ] At trial, the Claimant simply asserted that no class occurred on October 26. As noted, no documents or other evidence was submitted to corroborate this assertion. In contrast, the Defendants not only maintain that the Claimant’s daughter attended a class on that date but Mr. Chen testified that he personally taught the class. After considering the evidence of both parties’ on this issue I prefer the evidence of Mr.

Chen and conclude that it is more likely than not that the Claimant‘s daughter did, in fact attend a group class on October 26, 2011. Decision [ 25 ] In any case, the Claimant is required to prove its claim on the balance of probabilities and in accordance with the applicable legal principles. For the reasons given, I am satisfied that the Claimant has established an entitlement to a refund of the Course Fee in the amount of $1,410.00 in addition to the claimed postage fees of $8.86; corporate search and agent fees in the amount of $68.00; and filing

and service fees of $120.00, for a total of $1,606.86. [ 26 ] Accordingly judgment is granted to the Claimant against the Defendants, jointly and severally, in the amount of $1,606.86. ___________________ Barbara Cornish Adjudicator