Moss v. RGN Services Limited

Moss v. RGN Services Limited Court Small Claims Court Date 2024-11-11 Citation 2024 NSSM 93 Docket 24-534302 Judge/Registrar/Adjudicator Darling, Dale Allane (Adjudicator) Document Type Decision Decision Content Small Claims Court OF NOVA SCOTIA Citation: Moss v. RGN Services Limited, 2024 NSSM 93 Date: 20241111 Docket: 24-534302 Registry: Halifax Between: Andrew Moss Claimant v. RGN Services Limited Defendant Adjudicator: Dale Darling, KC Heard: September 11, 2024, in Halifax, Nova Scotia Decision: November11, 2024 Counsel: Both parties were self represented By the Court: Introduction: [1] This claim is about the rental of office space by the Claimant Mr. Moss. Mr. Moss says that he rented a space with the Defendant company February 8th, 2024. He says that he gave 52 days notice as opposed to the required 30 days notice. He seeks the return of $989.00 he described as an “administration fee”. [2] Mr. Mahavir Singh appeared for the Defendant RGN Services Limited. He is the City Manager for the Nova Scotia Region for the Defendant Company, who provide property management Services for Founders Square in Halifax, Nova Scotia, where Mr. Moss rented his office space. Positions of the Parties: [3] The onus is of course on Mr. Moss to prove his claim on a balance of probabilities. [4] Mr. Moss testified that needing short term office space, he spoke on the phone with Mr. Jordan Yates, a representative of the Defendant company, and, he says, rented office space at Founder’s Square, Halifax, Nova Scotia, for the dates between February 19 and March 31, 2024 only. [5] Mr. Moss spoke to Mr. Yates on February 8th, 2024. At 2:45 that day, Mr. Yates sent Mr. Moss a document titled “Your Customized Proposal”, offering “Office No. 832” for “989.00 per month”, on a month-to-month basis. [6] The phone exchange in evidence between Mr. Moss and Mr. Yates has Mr. Yates saying at 4:05 “And then of course make sure you look over the terms there check the box to accept and then you’ll insign [sic] at the bottom and let me know if you have any questions you are reading through here.” [7] Mr. Moss then says “Standard” and says that he needs the office for the portion of February and “all March”. [8] Mr. Yates confirms the proration of the February rent and says, “we do require a 30-day cancellation notice – so with that you’re gonna wanna make sure you have that in before the beginning of March, if you’re wanting to be out by the end of March”. Mr. Moss says “Oh, yeah, ok, cool.” [9] Several lines down, Mr. Moss says “Ok, fill out that”. He says this was him requesting that the cancellation notice be given. [10] There is no date stamp on when Mr. Moss was provided with a document which Mr. Singh entered in evidence, titled “Office Service Agreement” and electronically dated February 8th, 2024, between Mr. Moss and RNG. [11] The final paragraph reads: This agreement incorporates our terms of business set out on attached Terms and Conditions, attached house rules and service price guide (where available), which you confirm you have read an understood. We both agree to comply with those terms and our obligations as set out in them. This agreement is binding from the agreement date and may not be terminated once it is made, except in accordance with these terms. Note that the agreement does not come to an end automatically. See “Automatic Renewal” section of your Terms and Conditions for the notice terms if you wish to end your agreement. [12] Below this recital, there is a box to check with “I accept the terms and conditions” next to it. There are two hyperlinks to the right of that box, one titled “Download the terms and conditions”, and one titled “Download the house ules”. [13] I was provided with the Terms and Conditions document by the Defendant, and it states at clause 1.5: AUTOMATIC RENEWAL: [note that this recital is in capital letters in the original] SO THAT WE CAN MANAGE YOUR SERVICES EFFECTIVELY AND TO ENSURE SEAMLESS CONTINUITY OF THOSE SERVICES, ALL AGREEMENTS WILL RENEW AUTOMATICALLY FOR SUCCESSIVE PERIODS EQUAL TO THE CURRENT TERM UNTIL BROUGHT TO AN END BY YOU OR US. ALL PERIODS SHALL RUN TO THE LAST DAY OF THE MONTH IN WHICH THEY WOULD OTHERWISE EXPIRE. THE FEES ON ANY RENEWAL WILL THEN. BE AT THE THEN PREVAILING MARKET RATE. IF YOU DO NOT WISH FOR AN AGREEMENT TO RENEW, THEN YOU CAN CANCEL IT EASILY WITH EFFECT FROM THE END DATE STATED IN THE AGREEMENT, OR AT THE END OF ANY EXTENSION OR RENEWA., BY GIVING US PRIOR NOTICE. NOTICE MUST BE GIVEN THROUGH YOUR ONLINE ACCOUNT. OR THROUGH THE APP. THE NOTICE PERIODS REQUIRED ARE AS FOLLOWS: Term Notice Period Month to month. No less than one month's notice from the first day of any calendar month. [Other terms are referenced but are not of relevance to this dispute] [14] Fees are covered in article 4 of the Terms and Conditions, and 4.1 states that the Service Retainer/Deposit “will be held by us without generating interest as security for performance of all Your obligations under an agreement”. [15] Article 4.8 says that there will be a “fixed office restoration fee charge” (which from Mr. Singh’s evidence seems to be a cleaning fee), which differed depending on the country in which the rental occurs, the rate for which is included in the House Rules. [16] Mr. Moss clicked the box in the Office Service Agreement and confirmed by typing his name into the document. Mr. Moss gave his credit card information. He says he “felt rushed” and had to confirm that Mr. Yates understood the timeframe for which he wanted the office. [17] On February 15th, 2024, Mr. Moss noted that on February 8th, 2024, his credit card had been charged a $989.00 “administration fee”, $504.41 for February’s prorated rent, which he says is miscalculated even with a 15% HST added. On February 15, 2024, his card was charged $1137.35 for the month of March (which seems to be $989.00 plus applicable HST). [18] Mr. Moss says he became concerned about unanticipated charges, and he attempted unsuccessfully for three days to get in touch with Mr. Yates. Founders Square staff referred his to the Defendant’s Regus portal Helpdesk, where he says he confirmed that he had terminated the agreement on March 7th, 2024. He says that this was not to give notice, but to ensure further changes ceased. [19] Mr. Moss continued to be billed to the end of April 2024, the Defendant saying that he did not give notice until his March 7th, 2024, cancellation. The Defendant is refusing to return the $989.00 “retainer fee”, saying that there is an outstanding balance of $1,833.28 on his account. [20] I was not provided with a copy of the House Rules. Decision [21] Unlike residential tenancies in Nova Scotia, there is not specific legislation which governs the content of commercial leases. [22] Section 2 (b) of the Nova Scotia Electronic Commerce Act, SNS 2000, c. 26 defines an electronic signature as “information in electronic form that a person has created or adopted in order to sign a document and that is in, attached to or associated with the document” and under section 11 confirmed that electronic signatures satisfy the requirement for a signature. [23] The box that Mr. Moss clicked, and his typed in name, were therefore his agreement with the terms of the agreement. [24] Agreements such as this are referred to as “contracts of adhesion”. They are characterized by the fact that little or no negotiation of terms is offered to the consumer. There is nothing inherently wrong with such contracts, provided the consumer is given a reasonable opportunity to understand the bargain they have made. [25] The line drawn by the Supreme Court of Canada in Uber Technologies Inc. v. Heller, 2020 SCC 16, paras 88 to 91, is that such contracts of adhesion will only be found to be unconscionable where there is an inequality of bargaining power and an “improvident bargain”. In the Uber case, the issue was an arbitration clause requiring Mr. Heller to pursue any complaint through expensive mediation and arbitration of disputes in the Netherlands. This requirement created a cost making it impossible for Mr. Heller to arbitrate, thus rendering the agreement unconscionable. [26] Under this general heading of adhesion, the contract Mr. Moss entered into is referred to as a “click wrap” agreement, as described in Century 21 Canada Limited Partnership v. Rogers Communications Inc., 2011 BCSC 1196 by Mr. Justice R. Punnett: [89] As technology evolved purchases of software occurred over the Internet with no box or physical medium being purchased. This led to the concept of the “click wrap” agreement. In such a situation the user indicates their agreement by clicking on an “I Agree” box. [27] Such contracts are not uncommon in the commercial world, and Canadian Courts have largely upheld the enforceability of “click wrap” agreements where terms are prominently displayed and brought to the attention of the consumer. What, then, is the effect of embedding the majority of the terms and conditions between the parties in this case within two hyperlinks? [28] With respect to the merits of the dispute, I find that while I have no doubt that Mr. Moss thought he was telling Mr. Yates that he was giving notice as of the end of March 2024. However, the email string is not clear enough to prove that Mr. Yates understood that, and in any event, online cancellation was required by the terms of the contract. Was the contract clear enough to bind the parties? [29] I find that it was. The main Agreement document under “Comments” gives notice of a “refundable service deposit equivalent to 2x the monthly office fee”, and a “$60.00 activation fee”. [30] The “refundable service deposit” appears to be the “Service Retainer/Deposit” referred to in article 4.1 of the Terms document, and the “activation” appears to be covered under article 4.6, saying that “further information is set out in the House Rules”. [31] This is not to say that the main document is not problematic. It is obviously intended to be used as a template for agreements in many countries, and it is certainly lacking in specificity regarding the exact terms being entered into in the covering agreement. [32] It has terms within terms regarding costs, and while Mr. Yates did tell Mr. Moss about the cancellation policy, and told him to read the attached terms, Mr. Moss believed that he was renting an office for $989.00 per month. [33] Such was not the case, and the add on charges buried in the terms were considerable. A consumer would have to click and read all of the associated provisions in the terms and “house rules” if one were to understand the terms of this contract. [34] However, digital fine print is not distinguished from paper fine print at common law - it is very much a case of “buyer beware”. [35] Mr. Moss is assumed and expected to have read what he agreed to, provided it was not completely obscured or impossible to find. It is a high burden on consumers in the modern world of so many automated agreements, where one is urged to click and agree, but it remains the law. [36] I therefore find there is no issue of unconscionability – all of the terms were possible to find, they were just expensive. Should they all have been explained to Mr. Moss? From a customer service perspective, yes, but it was not an absolute requirement given the included wording of the documents, and the nature of contracts of adherence. [37] Since I cannot find that there was evidence of cancellation in the required form and timeframe by Mr. Moss, and given that the Agreement in its totality disclosed all of the required terms, I am unable to find in favour of the Claimant in this matter. [38] The Claim is therefore dismissed. Dale Darling, KC, Small Claims Court Adjudicator