B.C.’s Civil Resolution Tribunal has ordered a daycare to refund a mother her $980 deposit after she decided to switch care programs.
Fiona Morrigan Young-Macdonald claimed Desiree Olson wrongfully kept a deposit after she decided to switch daycares. She took her case to the tribunal to get the money back, tribunal member David Jiang said in his June 25 decision.
Olson denies liability.
“She says Ms. Young-Macdonald forfeited the deposit by switching daycares before service began,” Jiang said.
It was in June 2023, that Young-Macdonald heard from a friend that Olson had a daycare spot available. So, Young-Macdonald texted Olson five days later.
Olson offered her a spot but said Young-Macdonald had to pay a $980 deposit.
Jiang said the parties’ financial documents both showed that Young-Macdonald transferred $980 to Olson that same day.
“It is undisputed that Ms. Olson did not specify whether the deposit was non-refundable before Ms. Young-Macdonald sent it,” Jiang wrote.
Also on June 28, 2023, Olson emailed Young-Macdonald written documents including a registration form and parent handbook.
“I find these documents together were the parties’ written contract,” Jiang said, noting the form also said the daycare program would start on July 10, 2023. Cancelling before then would cause the complete forfeiture of the deposit, it said.
It was also undisputed that, on July 2, 2023, Young-Macdonald called Olson and said she had decided to go with a different daycare provider.
She asked for her deposit back.
“Ms. Olson refused to refund the entire amount,” Jiang said. “However, she attempted to electronically return $20 for the emergency supplies and $60 for partial reimbursement.”
Documents showed Young-Macdonald refused to accept the transfers.
The dispute
The tribunal said text messages between the two were silent about whether the deposit was refundable.
"So, I find these messages show that Ms. Olson was entitled to keep the deposit if Ms. Young-Macdonald repudiated the contract,” Jiang said. “I find Ms. Young-Macdonald did so on July 4, 2023, when she told Ms. Olson that she would not perform the contract. So, I find Ms. Olson was entitled to keep the deposit unless Ms. Young-Macdonald can show another reason why it should be returned.”
However, Young-Macdonald relied on provisions in B.C.’s Business Practices and Consumer Protection Act regarding future performance of a contract.
Jiang explained that a future performance contract must also contain the supply date, meaning the date on which the goods or service will be supplied to the consumer.
“I note this for the purpose of showing that the contract date and supply date are not the same things,” he said.
He found Young-Macdonald had until June 28, 2024 to cancel the contract.
The ruling noted, per the legislation, that if a consumer cancels a contract, the supplier must provide a full refund within 15 days after the cancellation notice was given.
“Given this, I find that Ms. Olson had to return $980 to Ms. Young-Macdonald by Aug. 23, 2023 at the latest,” Jiang said.
