Yuman-Chavez v. RLM Construction Ltd., 2023 BCPC 212

Citation: Yuman-Chavez v. RLM Construction Ltd. 2023 BCPC 212 Date: 20230926 File No: 2170009 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: JOSE ANIBAL YUMAN-CHAVEZ CLAIMANT AND: RLM CONSTRUCTION LTD. and LORNE DELMONT MARCHILDON DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. SANGHA Counsel for the Claimant: A. Abogado Counsel for the Defendants: W. Neufeld Place of Hearing: Vancouver, B.C.

Dates of Hearing: May 17, June 29, August 8 and 22, 2023 Date of Judgment: September 26, 2023 [ 1 ] The claimant, Jose Yuman-Chavez, entered into an agreement with the defendant, RLM Construction Ltd. (“RLM”), through its principal, the defendant, Lorne Marchildon, to perform some renovation work at the claimant’s home. The claimant paid RLM $40,000

as a deposit, and four subsequent, weekly payments of $5000, for a total of $60,000. RLM performed work at the claimant’s home over the course of a few months. That work included some of the original work the parties had agreed RLM would perform, and some additional work that the claimant requested. The relationship between the parties soured when RLM sought further compensation from the claimant and the claimant advised that no further compensation would be forthcoming.

On August 29, 2021, the claimant sent the defendants a form entitled “Notice of Cancellation of a Future Performance Contract for Not Containing the Required Information”, pursuant to s. 23(5) of the Business Practices and Consumer Protection Act , SBC 2004 c. 2 .

Section 27 of the Act provides that if a contract is cancelled, a supplier must, within 15 days, refund to a consumer all money received in respect of the contract. RLM did not refund any money to the claimant. [ 2 ] To be clear, the claimant is relying solely on the Act to establish his claim; he is not relying on common law breach of contract. [ 3 ] The overarching issue I must determine is whether the Act applies in the circumstances of this case so as to entitle the claimant to a refund of the money paid to RLM. [ 4 ] To determine that issue, I must first refer to the specific

definitions and provisions of the Act . [ 5 ] Section 23(3) of the Act states: A supplier must give a copy of a future performance contract to the consumer within 15 days after the contract is entered into. [ 6 ] A supplier under the Act includes a person who in the course of business participates in a consumer transaction by supplying goods or services or real property to a consumer. [ 7 ] I note here that s. 29 of the

Interpretation Act , [ RSBC 1996], c. 238 , confirms “person” includes a corporation. [ 8 ] The Business Practices and Consumer Protection Act defines a future performance contract as a contract between a supplier and consumer for the supply of goods or services for which the supply or payment in full of the total price payable is not made at the time the contract is made or partly executed. [ 9 ] A consumer under the Act means an individual who participates in a consumer transaction. [ 10 ] A consumer transaction means a supply of goods or services or real property by a supplier to a consumer for purposes that are primarily personal, family or household. [ 11 ] Section 23(5) says: A consumer may cancel a future performance contract by giving notice of cancellation to the supplier not later than one year after the date that the consumer receives a copy of the contract if the contract does not contain the information required under subsection (2) and

section 19. [ 12 ] Subsection (2) of s. 23 and s. 19 set out details that must be included in a future performance contract, including the date on which the supply of goods or services will be complete; the date on which the contract was entered into; a detailed description of the goods or services to be supplied under the contract; an itemized purchase price for the goods or services to be supplied under the contract; and, a detailed statement of the terms of payment, amongst other things. [ 13 ] As noted above, s. 27 of the Act provides that once a contract is cancelled, a supplier must, within 15 days, provide a refund to a consumer of all money received in respect of the contract. [ 14 ] Counsel for the claimant says that the claimant was a consumer; the defendants were suppliers; and the contract at issue was a future performance contract.

He further says that the claimant cancelled the contract on August 29, 2021 and was entitled to receive, but did not receive, a refund of his deposit. I note that s. 27 refers to the return of “all money received in respect of a contract”. However, I do not need to determine if the claimant is entitled to more than a refund of his deposit as the deposit itself exceeds the $35,000 limit of this court’s jurisdiction. [ 15 ] Counsel for the defendants did not make submissions as to whether the claimant was a consumer under the Act . He argues that the only contracting party was RLM, not Mr.

Marchildon, but did not make any submissions as to whether RLM was a supplier under the Act. Counsel for the defendants argues, instead, that the Act does not apply to real property rights, but was unable to provide me with any case law in support of that assertion. Rather, he submitted that if consumers were permitted to cancel contracts after renovations had already been substantially completed and demand a refund, as the claimant is attempting to do in this case, that would be unfair.

When I put to him that the remedy to any such injustice would be a counterclaim on the basis of unjust enrichment for the value of the work performed, he agreed. I note that while the defendants filed a counterclaim, they withdrew it at the end of the trial. I also note that Mr. Marchildon did not provide any evidence that would have supported the counterclaim. [ 16 ] In the absence of any authority to the contrary, I am satisfied that the claimant was a consumer and RLM was a supplier. At all times, Mr. Marchildon was acting in his capacity as principal of RLM, not in any personal capacity.

Further, the claimant paid all monies to RLM, not to Mr. Marchildon personally. As such, I find that Mr. Marchildon was not a supplier pursuant to the Act and the action is dismissed against him on this basis. [ 17 ] The evidence of both the claimant and Mr. Marchildon was weak. They referred to text messages that apparently documented the terms of their contract, but did not produce those text messages. At one point in his testimony, Mr. Marchildon said he gave the claimant a hard copy of the contract and invoices for extra work.

However, when asked why he did not provide the court with a copy of the contract, he said, “I don’t know”. Later, Mr. Marchildon said he did not provide a written contract to the claimant because the scope changed daily. In any event, neither party produced a written contract.

[ 18 ] Based on the whole of evidence, I find that the claimant and RLM entered into a verbal contract for the performance of renovation work at the claimant’s home. [ 19 ] I also find that the contract at issue was a future performance contract – that is, the claimant effectively paid RLM a $40,000 deposit before RLM performed any actual work. In that way, the supply and payment in full of the total price payable for goods and services was not made at the time the contract was made. [ 20 ] I am also satisfied that the claimant attempted to cancel the contract on August 29, 2021.

However, s. 23(5) of the Act says: A consumer may cancel a future performance contract by giving notice of cancellation to the supplier not later than one year after the date that the consumer receives a copy of the contract if the contract does not contain the information required under subsection (2) and

section 19 (emphasis added). [ 21 ] In this case, because the contract was verbal, not written, it is not clear on what date the claimant received a copy of the contract so as to start the one year time limit. In light of my other findings, the action against RLM then turns on whether the claimant gave notice of cancellation to RLM not later than one year after the date on which the claimant “received” a copy of the contract. [ 22 ] Counsel for the defendants argues that the time limit began to run as of the date on which the contract was entered into, or at the latest, when the work commenced.

The defendants say the contract was entered into on June 30, 2020. This is consistent with what the claimant pleaded in the Notice of Claim. However, neither the claimant nor Mr. Marchildon gave evidence regarding when the parties entered into the contract. [ 23 ] Similarly, there is no clear evidence from either the claimant or the defendants as to when the work actually started. The claimant pleaded in the Notice of Claim that the work started in July 2020, but he gave no evidence to that effect. Mr.

Marchildon indicated that the work started in September 2020, but this was based on incomplete excerpts from text messages with the claimant that do not actually address when the work started. I find that Mr. Marchildon’s evidence in this regard was unreliable. [ 24 ] Counsel for the claimant argues that since no contract was ever received, the one-year time limit never began to run.

He reminds the court that the words of the Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the statute, the object of the statute and the intention of the legislature. He argues that the Act is “all about consumer protection” and “should be interpreted generously in favour of consumers” as per the Supreme Court of Canada in Seidel v. Telus Communications Inc. , 2011 SCC 15 . He also points out that the parallel consumer protection legislation in Alberta and Ontario requires notice of cancellation within one year of entering into the contract.

Thus, if the BC legislature had intended to use the date the contract was entered into as the starting point for the one-year time limit, it would have used the same or similar language. [ 25 ] I agree that the Act must be read in its entire context and harmoniously with the scheme and object of the statute, and with the legislature’s intention. While the object of the Act is consumer protection, that protection is not limitless. The legislature included a one- year limit in which a consumer is able to cancel a future performance contract and exercise its right to a refund.

The legislature intended that time period to commence on a date potentially beyond the date on which the contract was entered into – that is, at some point no longer than the 15 days within which a supplier is to provide a copy of the contract, as per s. 23(3). In my view, s. 23(5) is informed by s. 23(3), so that the clock starts when the contract was received, or should have been received , by the consumer. This

interpretation is consistent with the whole of the Act and the intentions of legislature, which include not only ensuring consumer protection, but also reasonableness in commercial dealings. [ 26 ] I find that the only reliable date with respect to when the parties entered into a contract is July 17, 2020 – that is, the date the deposit was paid. By no later than that date, the parties demonstrated a clear intention to be bound. As per s. 23(3), RLM should have given the claimant a copy of the contract within 15 days of that date. Applying the

Interpretation Act rules for determining periods of days, 15 days from July 17, 2020 was August 1, 2020, which was a Saturday. The next business day after August 1, 2020, taking into account the statutory holiday, was August 4, 2020. [ 27 ] I find that for the purpose of s. 23(5) of the Act , the date on which the claimant received or should have received, the future performance contract was August 4, 2020. Accordingly, in order to obtain the relief in s. 27 of the Act , the claimant was required to give notice of cancellation of the contract to RLM on or before August 4, 2021.

As the claimant provided notice after that date, on August 29, 2021, he is not entitled to the relief sought and the action is dismissed as against both defendants on this basis. As previously noted, the defendants withdrew the counterclaim so it is also dismissed. _____________________________ The Honourable Judge S. Sangha Provincial Court of British Columbia