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the case of breach of contract

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发表于 10/18/2019 20:13:14 | 显示全部楼层 |阅读模式
本帖最后由 郭国汀 于 10/18/2019 22:39 编辑

INTRODUCTION

1.      The applicant, Super Save Disposal Inc., provides waste disposal services. The respondent, 315363 B.C. Ltd., operates a pizzeria. The applicant and the respondent entered into a contract for garbage disposal on September 27, 2016. The respondent says that the applicant fundamentally breached the contract by failing to pick up its waste on schedule. The applicant says that it did not breach the contract and claims $2,935.42 owing under the contract.

2.      The applicant is represented by an employee, Marli Griesel. The respondent is represented by an employee or principal, Bryan Dobb.

JURISDICTION AND PROCEDURE

3.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act. The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

4.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.

5.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

6.      Under tribunal rule 126, in resolving this dispute the tribunal may make one or more of the following orders:

a.    order a party to do or stop doing something;

b.    order a party to pay money;

c.    order any other terms or conditions the tribunal considers appropriate.

ISSUES

7.      The issues in this dispute are:

a.    Did the applicant fundamentally breach the contract by failing to pick up the bins between December 26, 2016 and January 2, 2017?

b.    What remedy, if any, is appropriate?

EVIDENCE AND ANALYSIS

8.      In a civil claim such as this, the applicant must prove its case on a balance of probabilities. While I have read all of the parties’ evidence and submissions, I only refer to what is necessary to explain and give context to my decision. In addition, I have read all of the cases that the parties referred to, even though I do not mention them specifically in this decision.

9.      The parties entered into a contract on September 27, 2016, which took effect on October 1, 2016. The contract provided for garbage disposal twice per week.

10.   The contract was for a term of 1 year. Clause 11 of the contract said that if the respondent terminated the contract before the end of the term, the applicant may accept the termination. If the applicant accepted termination of the contract, the respondent agreed to pay all amounts owing up to the date of termination plus the amount of any remaining monthly charges as liquidated damages.

11.   Clause 15 of the contract said that the respondent was responsible for providing unobstructed access to the bins to allow the applicant to pick up the garbage.

The Failed Pickups

12.   The respondent says that the applicant failed to pick up the garbage on December 26, 29, 30 and 31, 2016. December 26 and 29 were regularly scheduled pickups. On December 30 and 31, the respondent says that it telephoned the applicant to request a pickup to make up for the missed pickups.

13.   The applicant says that its driver attended on December 26 and 29, but could not access the garbage bin. The applicant says that it has no record of the respondent requesting a pickup on December 30. The applicant admits that the respondent requested a pickup on December 31, but its driver failed to attend.

14.   On January 1, 2017, the respondent notified the applicant that it was terminating the contract as of that day. The respondent stated that the applicant failed to provide it with adequate service. The respondent said that because of the applicant’s breach, the contract was no longer in force.

15.   The parties disagree about whether the bin was accessible on December 26 and 29.

16.   With respect to the December 26 failed pickup, the applicant has not provided any direct evidence from the driver about why the bin was not accessible on December 26. The driver’s notes simply say “NA”, which the applicant says stands for “not accessible”. The applicant submits that the respondent failed to provide unimpeded access.

17.   On January 11, 2017, the applicant emailed the respondent about why they were unable to get to the bin on December 26. The applicant said that it “can happen from time to time due to Work Safe regulations, conflicts with traffic, road closures/construction, schedule issues, trucking issues, or any number of other issues”. This email suggests that the applicant did not know why its driver said it could not access the bin. Some of the possible reasons for the missed pickup are within the applicant’s control, such as schedule issues and trucking issues.

18.   I find that the applicant’s position in this dispute is inconsistent with its January 11, 2017 email. I find that the applicant has failed to prove that the respondent failed to provide unfettered access to the bin. I therefore find that the applicant breached the contract by failing to pick up the garbage on December 26.

19.   With respect to the December 29 attempt, the driver’s notes indicate that there was snow. The respondent says that there was not snow, and provided a printout of weather conditions for Vancouver from December 24, 2016 to January 9, 2017, to support its position. These weather reports suggest that it did not snow during this time period. However, the respondent’s evidence also includes a photograph from January 3, 2017, which shows that the respondent had shoveled and salted the area around the bin. There is snow visible in the photograph. The respondent says that it did snow during the week of January 1, 2017. The respondent’s location is in Chilliwack, not Vancouver. I therefore do not accept that the weather reports are an accurate record of whether there was snow on the ground at the respondent’s location on December 29, 2016.

20.   Unlike the December 26 driver’s note, the December 29 driver’s note is specific. There is no compelling evidence to suggest that the driver was not accurate when they made the note. I accept that snow prevented the applicant from collecting the garbage on December 29. I find that the applicant did not breach the contract by failing to pick up the garbage on December 29 because it is the respondent’s responsibility under the contract to ensure unfettered access.

21.   The applicant says that it has no record of the respondent’s telephone calls on December 30, but does not deny that they were made. I accept that the respondent telephoned the applicant on December 30 and that the applicant failed to follow through on its agreement for an extra pick up that day.

22.   I find that the applicant therefore breached the contract by failing to pick up the garbage on December 26, December 30 and December 31.

Fundamental Breach

23.   There is no dispute between the parties about the law of fundamental breach. While the parties rely on different cases, the principles are the same. Not every breach of a contract is a fundamental breach. Where a party fails to fulfill a primary obligation of a contract in a way that deprives the other party of substantially the whole benefit of the contract, it is a fundamental breach. See Hunter Engineering Co. v. Syncrude Canada Ltd., 1989 CanLII 129 (SCC). Put another way, a fundamental breach is a breach that destroys the whole purpose of the contract and makes further performance of the contract impossible. See Bhullar v. Dhanani, 2008 BCSC 1202.

24.   Whether a breach of contract is a fundamental breach matters because there are different remedies available to the wronged party. For most breaches of contract, the wronged party can claim against the other party for damages arising from the breach. For a fundamental breach, the wronged party can terminate the contract immediately. If the wronged party terminates the contract because of a fundamental breach, they do not have to perform any further terms of the contract. See Poole v. Tomenson Saunders Whitehead Ltd., 1987 CanLII 2647 (BC CA).

25.   Applied to this case, if the applicant fundamentally breached the contract, the respondent was entitled to terminate the contract and be relieved from any further performance of the contract. Because the applicant’s monetary claims are all based on the contract, the applicant would not receive any money if it fundamentally breached the contract.

26.   The respondent submits that the failure to pick up the garbage was a fundamental breach because the heart of the contract is regular garbage pickup. The respondent points to the Food Premises Regulation, which prohibits conditions that lead to the harbouring or breeding of pests. The respondent does not say that the conditions at the garbage bins got bad enough to lead to the harbouring or breeding of pests. While I accept as a general point that accumulated food waste and garbage can be a problem for pests, in the absence of expert evidence I cannot conclude that the failed pickups led to a breach of the Food Service Regulation.

27.   The test for whether a breach of contract is a fundamental breach is an objective test. That means that I must assess the nature of the breaches from the perspective of a reasonable person in the respondent’s shoes. I find that a reasonable person would not consider the contract to be completely undermined because the applicant failed to pick up the garbage for 5 days.

28.   While I accept that the situation was frustrating for the respondent, I do not agree that on January 1, 2017, the respondent could reasonably say that it had lost the entire benefit of the contract. After the failed pickups, the applicant was attempting to arrange more pickups to get service back on track. I find that the applicant was willing to continue to perform the terms of the contract. I find that it was reasonably possible for the respondent to continue with the contract.

29.   I also agree with the applicant that its past performance is relevant to whether there was a fundamental breach. The applicant had not missed a pickup prior to December 26.

30.   Therefore, I find that the respondent was not entitled to terminate the contract on January 1, 2017.

Remedy

31.   The respondent did not make a payment on the account after January 1, 2017, which is a breach of the contract. The applicant continued charging the respondent its monthly service fee until it accepted termination of the agreement on August 4, 2017. At that time, the applicant says that the respondent owed $2,072.19 under the contract. The applicant provided the respondent’s invoices. I have reviewed the invoices and find that the respondent owed $1,853.37. I award this amount.

32.   The termination clause of the contract is onerous, particularly the amount of liquidated damages the respondent must pay. However, I am bound by the decisions of the BC Supreme Court, which found a nearly identical contract to be enforceable. See Tristar Cap & Garment Ltd. v. Super Save Disposal Inc. v. Lee, 2014 BCSC 690.

33.   Therefore, I find that the applicant is entitled to liquidated damages in the amount of $863.03, which is 3 months of monthly charges at the respondent’s current rate.

34.   The applicant is also entitled to contractual interest at a rate of 24% per annum, as set out in clause 5 of the contract. I calculate this amount as $1,141.58.

35.   Under section 49 of the Act, and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. I find the applicant is entitled to reimbursement of $125 in tribunal fees and $78.75 in dispute-related expenses.

36.   The respondent claimed $800 in expenses. Because the respondent was not successful, I decline to order any reimbursement for its expenses.

ORDERS

37.   Within 30 days of the date of this order, I order the respondent to pay the applicant a total of $4,061.73, broken down as follows:

a.    $2,716.40 in debt,

b.    $1,141.58 in pre-judgment interest at 24% per year, and

c.    $203.75 for $125 in tribunal fees and $78.75 for dispute-related expenses.

38.   The applicant is entitled to post-judgment interest, as applicable.

39.   Under section 48 of the Act, the tribunal will not provide the parties with the Order giving final effect to this decision until the time for making a notice of objection under section 56.1(2) has expired and no notice of objection has been made. The time for filing a notice of objection is 28 days after the party receives notice of the tribunal’s final decision.


40.   Under section 58.1 of the Act, a validated copy of the tribunal’s order can be enforced through the Provincial Court of British Columbia. A tribunal order can only be enforced if it is an approved consent resolution order, or, if no objection has been made and the time for filing a notice of objection has passed. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.




 楼主| 发表于 10/18/2019 22:41:09 | 显示全部楼层
本帖最后由 郭国汀 于 10/18/2019 22:46 编辑

Jameson et al v. Insurance Corporation of British Columbia
Collection
Small Claims Decisions
Date
2019-09-23
Neutral citation
2019 BCCRT 1119
File numbers
SC-2019-001840
Decision type
Final Decision





Date Issued: September 23, 2019
File: SC-2019-001840
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Jameson et al v. Insurance Corporation of British Columbia,
2019 BCCRT 1119
BETWEEN:
TAYLOR JAMESON and ROCKY JAMESON
APPLICANTS
AND:
INSURANCE CORPORATION OF BRITISH COLUMBIA
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Kathleen Mell
INTRODUCTION

1.      This is a small claims dispute about a motor vehicle accident that occurred on July 2, 2018. One of the applicants, Taylor Jameson, and a third party not named in this dispute, D, were travelling in opposite directions along a narrow driveway when their cars collided. D is Taylor Jameson’s aunt. The applicant Rocky Jameson is Taylor Jameson’s father and heard the accident happen. The applicants allege that D is wholly responsible for the accident because they say she admitted fault. The applicants are represented by Taylor Jameson.

2.      For ease of reference, given the applicants share the same last name, I will refer to Taylor Jameson as “Taylor” and to Rocky Jameson as “Rocky.”

3.      The respondent insurer, Insurance Corporation of British Columbia (ICBC), internally concluded that Taylor was 50% at fault for the accident. The applicants say ICBC should have found D 100% responsible for the accident and that ICBC breached its statutory obligations in investigating the accident and assigning fault. They seek a declaration that D was 100% at fault. The applicants also request payment of $2,421.97, which is the other half of what the applicants say the car was worth, as well as $2,578.02 compensation as “reversal” of the 50% “at fault claim” against Ms. Jameson, for a total of $4,999.99.

4.      ICBC says it is not a proper party to the claim and that D should be substituted as respondent. It also claims that Rocky should not be named as an applicant as he was not the owner, driver, or principal operator of the vehicle Taylor was driving at the time of the accident.

5.      ICBC says it assigned fault 50-50 under the Motor Vehicle Act (MVA) because Taylor was driving on the wrong side of the driveway. ICBC is represented by an employee.

JURISDICTION AND PROCEDURE

6.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

7.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In some respects, this dispute amounts to a “they said, it said” scenario with both sides calling into question the credibility of the other. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me. Further, bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note the decision Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. I therefore decided to hear this dispute through written submissions.

8.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

9.      Under tribunal rule 9.3(2), in resolving this dispute the tribunal may make one or more of the following orders, where permitted under section 118 of the CRTA: a) order a party to do or stop doing something, b) order a party to pay money, c) order any other terms or conditions the tribunal considers appropriate.

ISSUES

10.   The issues in this dispute are:

a.    Did ICBC breach its statutory obligations in investigating the accident and assessing fault?

b.    Who is liable for the accident? If not the applicants, what is the appropriate remedy?

EVIDENCE AND ANALYSIS

11.   In a civil dispute such as this, the applicants must prove their claim. They bear the burden of proof on a balance of probabilities.

12.   I will not refer to all of the evidence or deal with each point raised in the parties’ submissions. I will refer only to the evidence and submissions that are relevant to my determination, or to the extent necessary to give context to these reasons.

13.   As mentioned, ICBC takes issue with Rocky being named as an applicant as he is not the owner, driver, or principal operator of the vehicle Taylor was driving at the time of the accident. The applicants have provided no evidence to suggest that Rocky was involved in the accident or that he has an interest in the car. Taylor says that Rocky heard the collision but does not suggest he was in any way involved. Rocky did not provide a witness statement to ICBC or to this tribunal. I also note that the requested resolution is for Taylor to be reimbursed and not Rocky.

14.   Due to a lack of evidence, I dismiss Rocky’s claims against the respondent.

Did ICBC breach its statutory obligations in investigating the accident and assessing fault?

15.   As mentioned above, Taylor seeks an order overturning ICBC’s internal liability assessment and she requests payment of $4,999.99. To succeed against ICBC, Taylor must prove on a balance of probabilities that ICBC breached its statutory obligations or it contract of insurance, or both. The question is whether ICBC acted “properly or reasonably” in administratively assigning 50% liability to Taylor (see: Singh v. McHatten, 2012 BCCA 286).

16.   ICBC owes the applicant a duty of good faith, which requires ICBC to act fairly, both in how it investigates and assesses the claim and in its decision about whether to pay the claim (see: Bhasin v. Hrynew, 2014 SCC 71 at paras. 33, 55 and 93). As noted in the Continuing Legal Education Society of BC’s ‘BC Motor Vehicle Accident Claims Practice Manual’, an insurer is not expected to investigate a claim with the skill and forensic proficiency or a detective. An insurer must bring “reasonable diligence, fairness, an appropriate level of skill, thoroughness, and objectivity to the investigation and the assessment of the collected information” (see: McDonald v. Insurance Corporation of British Columbia, 2012 BCSC 283).

17.   In the course of its investigation, ICBC spoke with Taylor who originally said that she was going down the driveway and was just coming up to a blind corner to the right. She said she was on the “left side of the driveway” and saw D’s car coming up the driveway. Taylor said that she stopped but D did not have time to stop and D hit her car resulting in a big dent in the center of Taylor’s car’s front bumper. Taylor said that D sustained damage to the left, meaning the driver’s side corner.

18.   According to ICBC’s records, D told ICBC that she was going up the driveway and that there was a blind corner so she did not see Taylor coming down. She said she was able to slow down but not completely stop and she collided with Taylor’s vehicle. She agreed Taylor’s car was damaged in the front middle area and her car was damaged on the driver’ side front bumper, headlight, and fender.

19.   ICBC apportioned 50-50 liability based on the parties’ statements and the location of the damage done to the vehicles, specifically that Taylor’s vehicle was damaged in the center and not the side. ICBC determined that this meant that Taylor was not properly driving on the right hand side of the driveway.

20.   Taylor says that ICBC failed in its duty to assess liability under the insurance contract. She alleges that ICBC ignored evidence from D that established she was 100% liable. She says that D told ICBC that she was wearing flip flops and her foot slipped off the brake and that she admitted 100% liability.

21.   As indicated above, in her initial statement to ICBC Taylor said that she was travelling on the left hand side of the driveway. In her application for an ICBC claims assessment review, she said that what she meant by this was that she was on the left hand side of the vehicle she was driving and not the left hand side of the road. She also alleged D was speeding and she was travelling slowly and able to come to a complete stop.

22.   It is undisputed that there were no independent witnesses who saw the accident.

23.   ICBC denies that D told them that she was 100% liable or that her foot slipped off the brake. ICBC admits that D called them after the assessment of liability to tell them that Taylor was not happy about the assessment but she did not say she was 100% liable. ICBC did not provide a contemporaneous record of this call.

24.   ICBC states that it assessed liability based on section 154 of the Motor Vehicle Act which says that a driver must drive on the right hand side of the roadway when meeting another vehicle that is moving. Also, when meeting another vehicle that is moving, a driver must drive the vehicle so that the other vehicle is able to travel in at last half of the main travelled potion of the roadway as nearly as possible.

25.   As noted, Taylor appealed the ICBC internal assessment and the review arbiter agreed that the evidence was unclear as to where the parties were travelling on the narrow driveway and that Taylor might have been driving in the middle based on the damage to her vehicle. The arbiter did not find that she was driving on the right as required by law. He also found that the evidence was unclear as to the speed involved. The arbiter also noted that both cars could have swerved to avoid the accident. The arbiter decided that in the absence of police attendance or investigation and with no independent witnesses it boiled down to a she said/she said scenario and therefore upheld the 50-50 liability assessment.

26.   Given the overall evidence, I find that ICBC did not breach its statutory obligations or its contract of insurance. The evidence indicates that ICBC carried out a diligent, fair, thorough and objective investigation, including at the claims review assessment stage. Taylor suggests that ICBC acted unfairly when it did not take into account D’s alleged admission that she was 100% liable. However, she has provided no proof that D said this. I find ICBC acted reasonably in administratively assigning Taylor 50% responsibility for the accident.

27.   Having determined that ICBC acted reasonably in its examination of the accident, I turn now to my assessment of liability.

Who is liable for the accident?

28.   Turning to the facts in dispute, I do not accept Ms. Jameson’s statement that when she told ICBC she saw D’s car coming because she was on the left hand side of the driveway she actually meant she was on the left hand side of the car. It is obvious that the driver’s seat is on the left in North American vehicles. It does not ring true that Taylor felt obliged to point this out. Rather, in the context of her statement, it makes more sense that Taylor was referring to the fact that this was a blind corner on the right so she decided to drive on the left hand side of the driveway so she could see if anybody was coming.

29.   Therefore, based on Taylor’s statement, and the location of the damage to the vehicles, I find that Taylor was not driving on the right hand side of the road as required under the MVA.

30.   As noted above, the applicants brought this claim against ICBC only, and not the driver/or owner of the other vehicle, D. In Kristen v. ICBC, 2018 BCPC 106 the court said that the proper defendant in an action to determine liability in a motor vehicle accident is the other driver and not ICBC. However, rather than dismissing the claim for not having named the other driver, the court allowed the claimant an opportunity to amend his Notice of Claim and add the other driver as a defendant. I note that ICBC stated in its Dispute Response that D should be added as a party. Taylor had the opportunity to add D as a respondent but did not take steps to do so. She also did not indicate why she did not name D at the outset.

31.   A recent case from this tribunal, Singh v. Insurance Corporation of British Columbia, 2019 BCCRT 701, stated that, given the finding that the applicant had not proved his claim, nothing in the dispute turned on the fact that the applicant did not name the other driver. I have reached a similar conclusion on the facts of this dispute. As discussed below, I find that Taylor has not proved on a balance of probabilities that D was 100% at fault for the accident and I agree with ICBC’s apportionment of 50% fault to each driver. If I had decided differently I may have allowed the applicants to add D as a respondent in this dispute. However, because I find there is no change in liability, I do not need to determine who would have been the proper party for the applicant to recover damages from, whether ICBC or the other driver.

32.   Further, I do not accept Taylor’s claim that D admitted 100% liability because she was wearing flip flops and her foot slipped off the brake. There is no proof that D provided this information to ICBC either at the initial claim assessment phase or on review. I also note that Taylor had the opportunity to get a witness statement from D and submit it to this tribunal but she did not do so. The only documentary evidence is D’s statement to ICBC where she does not indicate that she is 100% liable.

33.   As noted, the burden is on the applicants to prove on a balance of probabilities that D was solely responsible for the accident. They have not met this burden. As a result, I find Taylor is not entitled to a different liability assessment for the accident and therefore is not entitled to additional damages.

34.   Under section 49 of the CRTA, and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. As the applicants were unsuccessful in their claims they are not entitled to have their $175.00 tribunal fees reimbursed.

ORDER

35.   I dismiss the applicants’ claims and this dispute.

Kathleen Mell, Tribunal Member




 楼主| 发表于 10/18/2019 22:47:22 | 显示全部楼层
本帖最后由 郭国汀 于 10/18/2019 22:48 编辑

Speckling v. Ens
Collection
Small Claims Decisions
Date
2017-11-03
Neutral citation
2017 BCCRT 104
File numbers
SC-2017-002856
Decision type
Final Decision
Decision status
Notice of Objection Filed





Date Issued: November 3, 2017
File: SC-2017-002856
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Speckling v. Ens, 2017 BCCRT 104
BETWEEN:
Bernardus Speckling
APPLICANT
AND:
Derrick Ens
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Kamaljit Lehal
INTRODUCTION

1.         This dispute is about a failed contract to purchase a vehicle. The applicant alleges the respondent breached the contract by selling the vehicle to someone else. Both parties are self-represented.

JURISDICTION AND PROCEDURE

2.         These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 3.1 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

3.         The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility that cannot be resolved without an oral hearing or other reasons that might require an oral hearing.

4.         The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

5.         Under tribunal rule 121, in resolving this dispute the tribunal may make one or more of the following orders:

a.     order a party to do or stop doing something;

b.     order a party to pay money;

c.      order any other terms or conditions the tribunal considers appropriate.


ISSUES

6.         The issues in this dispute are:

a.     Did the respondent breach his contract to sell the applicant a 1993 Volvo 940 (1993 Volvo)?

b.     If the respondent did breach the contract, what is the appropriate remedy?

EVIDENCE AND ANALYSIS

7.         The respondent posted a Craigslist advertisement for the sale of the 1993 Volvo for $1,199.00 on April 21, 2017.

8.         On April 22, 2017, the parties had an email exchange about the applicant’s purchase of the 1993 Volvo. The email exchange contains:

(a)    The applicant offered to purchase the 1993 Volvo for $900.00, unseen by the applicant, as long as there were no known problems with the car (email at 9.08 am). The respondent’s reply email stated that brake pads and a timing belt would need work in about 6 months but otherwise everything was good (email at 9:14 am).
(b)    The applicant responded with a few questions and noted that timing belts and fuel pumps are main issues on these cars. The applicant states that if the respondent is agreeable with the $900.00 price to provide an email address so that he could send a $500.00 deposit. The applicant further states that he will pick up and pay the balance, possibly the next day (email at 9:22 am).
(c)    The applicant then sent an email confirming an e-transfer deposit of $500.00 with the password information (email at 10:51 am).
(d)    The applicant received an email from CIBC (April 22, 2017 at 12:47 pm) stating the $500.00 was accepted by the respondent and quoting a message from the respondent “Thank you for your deposit.”

9.         After the respondent received the applicant’s deposit, the parties exchanged a series of text messages commencing around 6:44 pm on April 22, 2017. The respondent texted the applicant that the 1993 Volvo’s engine died, that it appeared to be the transmission and asked for the applicant’s email to return the $500.00 deposit right away. The applicant responded by asking to come and look at the vehicle the next day. The applicant stated the vehicle was not with him and asked again for the applicant’s email address to return the deposit. The applicant responded that there was an accepted sale price of $900.00 and restated he wanted to come and see the vehicle the next day.

10.      The respondent states he tried to refund the $500.00 deposit to the applicant. He states that another interested party responded to his Craigslist advertisement after the transmission had died on April 22, 2017. He explained the transmission problem to this third party and the third party bought the 1993 Volvo, for parts only, for $100.00 cash. A Transfer Tax Form between the respondent and a third party indicates the 1993 Volvo was sold on April 22, 2017, for $100.00. Of note is that the Transfer Tax Form does describe the 1993 Volvo as 1994 model. The Transfer Tax Form also has a notation “needs to fix transmission.”

11.      A Kijiji advertisement dated May 4, 2017 shows a 1994 Volvo on sale for $2,900.00. It appears that this ad is for the same 1993 Volvo, just with 1994 as being the year. The Craigslist photos of the 1993 Volvo and the Kijiji ad photos of the 1994 Volvo appear very similar. The description provided in the respective ads also refers to almost identical mileage of 246,000 km, the same color and body type. The applicant states the ad was posted by the third party and that it was pulled right after he filed his claim.

12.      The applicant states because the respondent did not complete the sale of the 1993 Volvo he had to purchase another comparable Volvo, a 2001 Volvo Xc 70, advertised for sale for $2,000.00 (“2001 Volvo”). He purchased the 2001 Volvo on June 4th 2017 for $1,200.00. The applicant provided a Craigslist advertisement for the 2001 Volvo which shows mileage of 169,000 km. He provided an Owner’s Certificate of Insurance and Vehicle License confirming he is the owner of a 2001 Volvo. He also provided an invoice dated June 11, 2017 for $520.00 which he states he spent for immediate repairs required to the 2001 Volvo.

The Applicant’s position:

13.      The applicant submits he entered into a valid contract to purchase the 1993 Volvo for $900.00, and that this agreement was confirmed by payment of the $500.00 deposit on April 22, 2017. The applicant submits the respondent’s assertion that the 1993 Volvo’s engine died is not truthful and that the respondent received a better offer and made up a story about the car engine dying to try and get out of a binding contract. The applicant suspects that the individual who bought the 1993 Volvo for $100.00 must be acquainted with the respondent and that the same vehicle was listed for resale on Kijiji for $2,900.00 on May 4, 2017. The applicant asserts he had to purchase a comparable vehicle for $1,200.00 and make repairs to it for $520.00.

14.      The applicant seeks a finding that there has been a breach of contract and for an order that:

(a)   the 1993 Volvo be sold to him; or
(b)   a refund of the $500.00 deposit and damages to purchase a similar car, which he states is worth, approximately, $2,900.00; and
(c)    tribunal fees of $125.00.

The Respondent’s Position

15.      The respondent acknowledges on April 22, 2017 there was a back and forth negotiation by email with the applicant for the sale of the 1993 Volvo for $900.00. He states that negotiation commenced April 21, 2017. The respondent acknowledges that on April 22, 2017 he clicked “accept” for a $500.00 deposit by e-transfer, although he was not comfortable with this method of payment. The respondent states all communication was done by email to that point and that the applicant would not give his phone number which he thought was “fishy.” The respondent states his wife, later that day, experienced a mechanical problem with the 1993 Volvo, which they managed to bring home but it was no longer in running order. The respondent states he contacted his bank, checked an e-statement and went to the bank and confirmed receipt of the $500.00 deposit. The respondent states he explained the situation to the applicant and tried to return the deposit as he could not sell it in such condition. The respondent states another interested party responded to his advertisement later that day. Since the 1993 Volvo was no longer working and he was in need of money and had to pay debts he sold it that same day to the third party, for parts only, for $100.00 cash.

Analysis and Findings

16.      I find that a valid contract was entered into between the applicant and the respondent. The applicant and respondent had agreed to the purchase and sale of the 1993 Volvo for the sum of $900.00. Good and valid consideration in the sum of $500.00 was paid and received on April 22, 2017. The balance of the purchase price was to be paid the next day, April 23, 2017 when the applicant would pick up the car. The respondent breached the contract when he did not complete the sale of the 1993 Volvo with the applicant.

17.      I do not accept the respondent’s submission that he could not complete the sale of the 1993 Volvo as its engine had died. Other than the respondent’s own assertion, there was simply no other evidence provided in that regard. Even if the engine had died, I find that this did not void the contract as it was not a “known problem” at the time the contract was entered between the parties.

18.      In particular, I find the respondent’s actions to sell the 1993 Volvo to another party for only $100.00, on the same day as he accepted the deposit from the applicant, to be difficult to reconcile with his assertion that he had financial debts and had no choice but to sell it for parts. Further, the applicant was willing to consider completing the sale regardless of the alleged engine failure. In fact, as already stated, given the alleged engine failure was not a known problem at the time the contract was entered into, both parties were contractually bound to complete the purchase. In any event, it would have made more sense for the respondent to continue his discussions with the applicant and complete the sale if he indeed had debts and needed the money.

19.      It is also concerning that there is a Kijiji post for a vehicle which appears to be the same 2003 Volvo for a much higher price of $2,900.00, within two weeks of the deposit being paid by the applicant. I have no evidence that the respondent posted this ad, the applicant states the third party posted it. Bearing in mind the respondent did not respond to the applicant’s allegation that the ad was for the 1993 Volvo, on a balance of probabilities I find that it was the 1993 Volvo up for re-sale.

20.      Given my conclusions above, I find that the respondent is liable for breaching his contract with the applicant. The respondent is liable to repay the $500.00 deposit as well as any damages arising from his failure to complete the sale to the applicant. As the 1993 Volvo was sold to another person who is not a party to this dispute I find that an order for monetary damages is the appropriate remedy.

21.      The applicant requested damages in the range of $2,900.00 relying on the Kijiji ad as a comparable value. Since the applicant was prepared to pay $900.00 for the 1993 Volvo I find that he is really asking for the difference, being $2,000.00 in damages, otherwise his claim would be a request for double recovery. However, beyond the Kijiji ad, which the applicant himself states was pulled, no other comparables for 1993 Volvos were provided. It is unknown what repairs, if any, were made to the 1993 Volvo before it was re-listed for $2,900.00, and the cost of any such repairs. The 2001 Volvo purchased by the applicant was purchased for only $1,200.00, and with repairs of $520.00, the applicant spent $1,720.00 for a seven-year newer Volvo with much less mileage. Therefore, without any other evidence on comparables I find that damages of $2,000.00 are too high. I find that the appropriate range of damages is $400.00. I come to this amount by taking into consideration what the applicant paid for the 2001 Volvo (inclusive of repairs) and what he would have paid for the 1993 Volvo, a difference of $850.00. Since the two vehicles are not direct comparables and since the applicant would have likely have spent money on repairs for the 1993 Volvo, for brakes and a timing belt, I find that an appropriate award for damages is $400.00 for the breach of contract.

ORDERS

22.      I order that:

a.     The respondent immediately reimburses the applicant his $500.00 deposit.
b.     The respondent immediately pays the applicant damages in the amount of $400.00.

23.      Under section 49 of the Act, the tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. I therefore order the respondent to also immediately reimburse the applicant for tribunal fees of $125.00. There were no dispute-related expenses claimed.

24.      Under the Court Order Interest Act (COIA), the applicant is entitled to $1.86 pre-judgment interest on the $500.00 award and $1.17 on the $400.00 award, for a total of $3.03 in pre-judgment interest. The applicant is further entitled to post-judgment interest under the COIA, as applicable.

25.      Under section 48 of the Act, the tribunal will not provide the parties with the Order giving final effect to this decision until the time for making a notice of objection under section 56.1(2) has expired and no notice of objection has been made. The time for filing a notice of objection is 28 days after the party receives notice of the tribunals’ final decision.

26. Under section 58.1 of the Act, a validated copy of the tribunal’s order can be enforced through the Provincial Court of British Columbia. A tribunal order can only be enforced through the Provincial Court of British Columbia. A tribunal order can only be enforced if it is an approved consent resolution order, or if, no objection has been made and the time for filing a notice of objection has passed. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.

Kamaljit K Lehal, Tribunal Member




 楼主| 发表于 10/18/2019 22:49:32 | 显示全部楼层
本帖最后由 郭国汀 于 10/18/2019 22:51 编辑

Brumby v. Mainroad Lower Mainland Contracting Ltd.
Collection
Small Claims Decisions
Date
2019-09-03
Neutral citation
2019 BCCRT 1037
File numbers
SC-2019-002515
Decision type
Final Decision





Date Issued: September 3, 2019
File: SC-2019-002515
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Brumby v. Mainroad Lower Mainland Contracting Ltd., 2019 BCCRT 1037
BETWEEN:
TIM BRUMBY
APPLICANT
AND:
MAINROAD LOWER MAINLAND CONTRACTING LTD.
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Sarah Orr
INTRODUCTION

1.      The applicant, Tim Brumby, hit a pothole while driving on Highway 99 and damaged his car. He says the respondent, Mainroad Lower Mainland Contracting Ltd., was negligent in preventing and repairing potholes on the highway. He claims a total of $3,000: $1,525 for the cost of towing his car, replacing the tires and repairing the rims, and $1,475 for his time and the loss of use of his car during repairs.

2.      The respondent says it fulfilled its contractual obligations to the Ministry of Transportation and Infrastructure (MOT) to patrol Highway 99 and repair any reported potholes within 24 hours.

3.      The applicant is self-represented and the respondent is represented by an employee or principal.

JURISDICTION AND PROCEDURE

4.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

5.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.

6.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

7.      Under tribunal rule 9.3 (2), in resolving this dispute the tribunal may make one or more of the following orders, where permitted under section 118 of the CRTA:

a.    order a party to do or stop doing something:

b.    order a party to pay money:

c.    order any other terms or conditions the tribunal considers appropriate.

ISSUE

8.      The issue in this dispute is whether the respondent breached its obligation to repair potholes, and if so, whether it must pay the applicant $3,000 for damage to his car, loss of use of his car, and for his time.

EVIDENCE AND ANALYSIS

9.      In a civil claim like this one, the applicant must prove his claim on a balance of probabilities. This means I must find it is more likely than not that the applicant’s position is correct.

10.   The applicant made submissions but said he had no evidence to submit. I have only addressed the parties’ submissions and the respondent’s documentary evidence to the extent necessary to explain and give context to my decision. For the following reasons, I dismiss the applicant’s claim.

11.   The applicant says that on February 15, 2019, while travelling northbound on Highway 99 and exiting a tunnel, he struck a deep pothole damaging his car’s tires and rims. He says he was travelling 35 kilometers per hour at the time, below the posted speed limit, and that traffic was heavy. He says that even if he had seen the pothole in advance he could not have avoided it.

12.   It is undisputed that the respondent contracts with MOT to provide maintenance services on Highway 99, including repairing potholes. It is undisputed that under this contract when the respondent detects or receives a report of a pothole on a Class 1 highway (such as Highway 99) it has 24 hours to repair it.

13.   The evidence indicates that the respondent received notice of the applicant’s incident at 6:35 p.m. on February 15, 2019. The parties agree that on the evening of February 15, 2019 the respondent patched the pothole at the north end of the tunnel on Highway 99 that is the subject of this dispute. The parties agree that the respondent’s repair work satisfied its obligation to patch potholes under its contract with the MOT.

14.   The applicant says the respondent was negligent in failing to prevent the pothole he hit. He says there are leaks at both ends of the tunnel causing excess water on the road, which contributes to potholes. He says the respondent’s VP of Operations told him there is a problem with the water table pressure and inadequate construction of the tunnel area to control the water on the road, but the MOT does not want to pay for the necessary repairs. The applicant did not submit a statement from the respondent’s VP of Operations or any other evidence to support this claim. The MOT is not a party to this dispute.

15.   The respondent says that during the winter months at the tunnel entrances hydrostatic water pressure pushes through layers of concrete and asphalt, and the freeze-thaw cycle combined with heavy traffic causes conditions in which potholes can form within minutes. It says the type of repair that is required to "fix" the root cause of the potholes is beyond the scope of its maintenance contract with the MOT. I agree. On the evidence before me, the respondent’s obligations with respect to preventing potholes extends to patrolling Highway 99 at least once every 24 hours, and the evidence shows the respondent fulfilled this obligation.

16.   The applicant also says there should be a sign in the tunnel warning drivers of potholes. The respondent says that on several occasions it has discussed with the MOT the idea of posting signs at the entrances to the tunnel warning of potholes. The respondent says it was determined that adding further signage would confuse drivers as there are several other overhead signs in the area, and there is very limited space at the entrances to the tunnel. On the evidence before me I find there is no requirement in its maintenance contract with the MOT for the respondent to use signage to warn the public of potholes. It is undisputed that the respondent does not own the relevant portion of highway, and therefore it does not have control over such decisions.

17.   On balance, I find the applicant has not established that the respondent was negligent in preventing or failing to repair the pothole that he hit. Even if I had found the respondent negligent, I find the applicant has not proved that he incurred damages. The applicant says his car required a tow, and he had to replace all 4 tires and repair the rims. He says he made an insurance claim and paid a $300 deductible. However, he provided no evidence of the extent of the damage to his car, the cost of repairing it, or his insurance claim, even though I expect such evidence would be easily obtainable.

18.   The applicant is responsible for proving his claim. I find he has not done so, and I dismiss it.

19.   Under section 49 of the CRTA and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. Since the applicant was unsuccessful I find he is not entitled to reimbursement of his tribunal fees and he has not claimed any dispute-related expenses.

ORDER

20.   I dismiss the applicant’s claims and this dispute.

Sarah Orr, Tribunal Member




 楼主| 发表于 10/18/2019 22:52:11 | 显示全部楼层
本帖最后由 郭国汀 于 10/18/2019 22:55 编辑

Pearson v. ICBC
Collection
Small Claims Decisions
Date
2019-08-19
Neutral citation
2019 BCCRT 985
File numbers
SC-2019-001442
Decision type
Final Decision
Noteworthy Decisions?
Yes
Notes
Applicant non-lawyer’s claim for payment of his fees for “services” denied because it was an illegal contract as they were legal services and the Legal Profession Act does not allow it. An illegal contract is not enforceable (also known in law by a Latin phrase, ‘ex turpi causa non oritur actio’).





Date Issued: August 19, 2019
File: SC-2019-001442
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Pearson v. ICBC, 2019 BCCRT 985
BETWEEN:
DOUGLAS PEARSON
APPLICANT
AND:
INSURANCE CORPORATION OF BRITISH COLUMBIA
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Julie K. Gibson
INTRODUCTION

1.      The applicant Douglas Pearson’s 1992 Toyota pick-up truck (truck) rolled backwards down his driveway, colliding with a parked car across the street. The applicant says that the respondent Insurance Corporation of British Columbia (ICBC) wrongly assessed him as 100% at fault for the collision.

2.      The applicant seeks an order requiring ICBC to change their liability decision. The applicant also claims $2,609.03 which he says is to compensate him for the amount his insurance rates increased due to being found at fault for the collision.

3.      ICBC says the cause of the collision was the applicant’s truck having a brake failure, then rolling across the roadway and hitting the parked car. ICBC says it investigated and reached a reasonable and proper determination that the applicant was 100% liable for the collision. ICBC asks that the dispute be dismissed.

4.      The applicant is self-represented. The respondent is represented by employee Lynn Boutroy.

JURISDICTION AND PROCEDURE

5.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

6.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.

7.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

8.      Under tribunal rule 9.3(2), in resolving this dispute the tribunal may make one or more of the following orders, where permitted under section 118 of the CRTA:

a.    order a party to do or stop doing something;

b.    order a party to pay money;

c.    order any other terms or conditions the tribunal considers appropriate.

9.      ICBC says it is not a proper respondent to the applicant’s claim. It says LP, the owner of the car damaged in the collision, should be substituted as the respondent. In a preliminary decision the tribunal found that this is a dispute between ICBC and the applicant about liability under the parties’ insurance contract. It is not a tort claim in damages. Therefore, the tribunal held that ICBC is a proper respondent. That said, the tribunal member left it open for the tribunal member making the final decision on the merits to decide the question of whether ICBC is the proper respondent.

10.   In Innes v. Bui, 2010 BCCA 322, the Court of Appeal found that a plaintiff involved in a collision who challenged ICBC’s decision about liability for that collision had a claim not based in tort, but rather based in either contract, statute, or both. The court found that the only issue raised by the pleadings in that case was whether ICBC acted properly or reasonably in its administrative decision to assign full responsibility for the collision to the plaintiff. The court said that issue was strictly between the plaintiff and ICBC, and that the other driver in the collision was not the correct party.

11.   I agree with the tribunal’s preliminary determination that the nature of the applicant’s claim here is the same as that in Innes, and therefore, I find ICBC is the proper respondent to this dispute.

ISSUES

12.   The issues in this dispute are:

a.    Did ICBC reasonably assess 100% liability against the applicant?

b.    To what extent, if any, is the applicant entitled to his requested remedies?

EVIDENCE AND ANALYSIS

13.    In this civil claim, the applicant bears the burden of proof on a balance of probabilities. I have reviewed all of the evidence and submissions but refer to them here only to the extent necessary to explain and give context for my decision.

14.    The applicant seeks an order overturning ICBC’s internal liability assessment and a refund of increased insurance premiums he says he paid due to ICBC’s liability assessment. The central issue is whether ICBC acted “properly or reasonably” in administratively assigning 100% responsibility to the applicant (see: Singh v. McHatten, 2012 BCCA 286).

15.    ICBC owes the applicant a duty of good faith, which requires ICBC to act fairly, both in how it investigates and assesses the claim and as to its decision about whether to pay the claim (see: Bhasin v. Hrynew, 2014 SCC 71 at paras. 33, 55 and 93). As noted in the Continuing Legal Education Society of BC’s ‘BC Motor Vehicle Accident Claims Practice Manual’, an insurer is not expected to investigate a claim with the skill and forensic proficiency of a detective. An insurer must bring “reasonable diligence, fairness, an appropriate level of skill, thoroughness, and objectivity to the investigation and the assessment of the collected information” (see: McDonald v. Insurance Corporation of British Columbia, 2012 BCSC 283).

16.   Given the evidence and submissions before me, I find nothing to suggest that ICBC failed to meet the burden upon it to assess the claim reasonably. My reasons follow.

17.   In May 2018, the applicant had his truck serviced. The mechanic completed work including to the truck’s timing belt, water pump, brakes, wheel bearings, and wheel and camshaft seals. The invoice noted that the brake fluid service was overdue and that servicing brake fluid at the proper maintenance schedule would help prevent ABS and brake system failures. Oil and fluid leaks were also recorded.

18.   On August 12, 2018, the applicant says he placed the truck in first gear and applied the emergency brake to park it in his driveway. About 30 minutes later, the truck rolled down the sloped driveway, eventually colliding with the parked car across the road.

19.   On August 29, 2018, a mechanic examined the truck and found that the right emergency brake cable had seized and needed replacement.

20.   The applicant says ICBC’s Claims Assessment Review identified errors in ICBC’s initial fault determination but confirmed the decision that he was 100% liable for the collision. I have reviewed the Claims Assessment Review determination in detail.

21.   On December 4, 2018, ICBC wrote to the applicant advising him that ICBC upheld its original assessment that he was 100% liable for the collision.

22.   The Claims Assessment Reviewer (reviewer) explained that the collision was caused by the truck’s mechanical failure. The reviewer found that, on a balance of probabilities, the applicant failed to properly engage the transmission in first gear, and then the emergency brake failed. The reviewer made this finding because it would be an unlikely coincidence to have both the brake fail and the truck slide out of first gear in the same instant.

23.   The reviewer found that the fact that the other car was illegally parked within 6 meters of an intersection was not a “contributing factor” to the collision.

24.   The reviewer rejected the applicant’s argument that, because he did everything he could to ensure his vehicle was safe to operate, he was not liable for the collision. The reviewer found that the truck was not in compliance with section 5.03(1) of the Motor Vehicle Act Regulation that requires any vehicle to have an emergency or parking brake that will, alone, stop it from rolling if applied.

25.   The reviewer also found that an operator of a vehicle in the truck’s condition on a highway would be subject to a Notice and Order and the vehicle removed from the highway for its unsafe condition.

26.   The applicant says the truck was serviced only a few months before the accident and that the parking brake was not identified as needing work. He says the parking brake on his truck failed.

27.   The applicant again argues that he took reasonable steps to ensure that his truck is safe. The applicant says the accident was “not reasonably foreseeable” and that he did not breach the standard of care.

28.   I find that the truck’s maintenance record does not absolve the applicant from liability. The uncontradicted evidence is that the applicant’s car rolled out of the driveway and across the road while its emergency brake was engaged. The brake failed to perform its intended function. The collision would not have occurred but for the failure of the emergency brake.

29.   Given that the emergency brake did not alone stop the truck, the applicant is in breach of Section 5.03(1) and is liable for the collision, regardless of whether he knew or ought to have known that the brake would fail.

30.   In submissions, the applicant says he is not trying to prove that LP is at fault for the collision. Rather, he argues that ICBC’s decision to apply his third-party coverage to the cost of damage to LP’s car is in error. The applicant asks why ICBC would not recover repair costs from LP under her collision and comprehensive coverage.

31.   Third party liability coverage applies when a driver is at fault and the other driver makes a claim, such as LP’s claim for the repairs to her car. I find that, given that the applicant was liable for the collision, it was appropriate for ICBC to address those repairs under the applicant’s third party liability coverage.

32.   For these reasons, I uphold ICBC’s determination that the applicant is 100% liable for the collision.

33.   Given my conclusion on liability, it is not necessary for me to address the applicant’s claim for a refund of the $2,609.03 he says he has paid in insurance rates due to the liability determination.

34.   Under section 49 of the CRTA and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. ICBC was successful but did not pay tribunal fees or claim dispute-related expenses, so I make no order for them. As the applicant was unsuccessful, I dismiss his claim for reimbursement of tribunal fees.

ORDER

35.   I dismiss the applicant’s claims and this dispute.

Julie K. Gibson, Tribunal Member





 楼主| 发表于 10/18/2019 22:56:11 | 显示全部楼层
本帖最后由 郭国汀 于 10/18/2019 22:57 编辑

Pilon et al v. Insurance Corporation of British Columbia
Collection
Small Claims Decisions
Date
2018-06-26
Neutral citation
2018 BCCRT 282
File numbers
SC-2017-005786
Decision type
Final Decision





Date Issued: June 26, 2018
File: SC-2017-5786
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Pilon et al v. Insurance Corporation of British Columbia, 2018 BCCRT 282
BETWEEN:
Blenda Pilon and Raymond Pilon
APPLICANTS
AND:
Insurance Corporation of British Columbia
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Kate Campbell
INTRODUCTION

1.         The applicants, Blenda and Raymond Pilon, seek $800.75 for damage to the headlights of their 2010 Toyota Prius (Prius) which they say was caused by melting snow and rain.

2.         The respondent, the Insurance Corporation of British Columbia (ICBC) says the evidence does not establish the cause of the headlight damage, and the damage does not fall within the scope of coverage under its insurance contract with the applicants.

3.         The applicants are self-represented. The respondent is represented by an employee.

JURISDICTION AND PROCEDURE

4.         These are the formal written reasons of the tribunal. The tribunal has jurisdiction over small claims brought under section 3.1 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

5.         The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions because I find that there are no significant issues of credibility or other reasons that might require an oral hearing. Neither party requested an oral hearing.

6.         The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

7.         Under tribunal rule 126, in resolving this dispute the tribunal may: order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate.

ISSUES

8.         The issue in this dispute is whether the respondent is responsible to reimburse the applicants for headlight damage, and if so in what amount.

EVIDENCE AND ANALYSIS

9.         In a civil claim such as this, the applicant bears the burden of proof, on a balance of probabilities. I have only addressed the evidence and arguments to the extent necessary to explain my decision.

10.      The applicants say the headlights of their Prius were damaged due to the effects of a heavy snowfall, followed by heavy rain, in January 2017. They say this was an “act of God” and therefore the headlight repair should be covered under their ICBC insurance.

11.      The applicants say the headlights worked properly until the time of the snowfall, but the next day the headlights began flickering and failed. They submit it is therefore logical that the 18 inches of heavy, wet snow caused an electrical short that damaged the headlights.

12.      The applicants provided a February 6, 2017 invoice from their mechanic, showing a total of $830.74 for new headlights, labour, supplies, and taxes. The invoice says the customer noticed that after the car “sat in winter and had to be dug out” that the lights were not as good as they should be. The mechanic wrote that he found that water had intruded into the headlights causing them to short, burning the assemblies and brake retainers. He wrote that he installed new lights and also had to repair some wiring on the fuse box due to overheating from the short.

13.      The applicants provided an October 17, 2017 letter from the mechanic, stating that their vehicle was damaged from water intrusion caused by a snowfall that engulfed the vehicle. The mechanic said the snow caused a short when the vehicle was switched on, as “power and ground” were present inside the headlight assemblies. He said the repair required replacement of the headlight assemblies.

14.      The respondent agrees that the heavy snowfall occurred, but says the damage is excluded under the insurance contract. The respondent cites several provisions of the ICBC Autoplan Optional Policy (the Policy), the contract under which the applicants claim payment.

15.      Division 8 of the Policy sets out “Requirements if loss or damage to vehicle.” It says that if vehicle damage covered under the contract occurs, the insured must promptly notify the insurer of the damage. Paragraph 5(3) of Division 8 says:

(3) If loss of or damage to a vehicle that is covered by this contract occurs, the owner or operator of the vehicle
...
(b) until the insurer has had a reasonable opportunity to inspect the vehicle, must not, without the consent of the insurer, remove any physical evidence of the loss or damage to the vehicle or make any repairs to the vehicle, other than repairs that are immediately necessary to protect the vehicle from further loss or damage.

16.      In this case, the applicants admit the Prius was repaired before the respondent was notified of the damage or had any opportunity to inspect it. They say that when the repairs were performed they did not know insurance could cover the claim, and they only considered an insurance claim when their mechanic suggested it months later. They say the mechanic disposed of the wiring harness at the time of the repair because no claim was anticipated. They say they kept the headlights “for a while”, and provided the respondent with a photograph of them.

17.      While the applicants’ reasons for proceeding with repairs are understandable, they did not obtain the respondent’s consent to repair the Prius and remove evidence of the damage. I find the repairs were not immediately necessary to protect the Prius from further loss or damage. Although the headlight repairs were necessary and the car was likely unsafe to drive, there is no evidence to suggest it was getting worse. I also note that the invoice indicates that the repairs were performed at least a week after the snowfall, so they were not done on an emergency basis.

18.      For these reasons, I find the applicants failed to comply with paragraph 5(3)(b) of the contract, as cited above.

19.      Division 8, paragraph 5(4)(b) of the Policy states that the insurer is not liable under the contract to an owner if the owner, to the prejudice of the insurer, contravenes subcondition 3(b).

20.      I find the respondent was prejudiced by the applicants’ breach of paragraph 5(3)(b). Because the Prius is fixed and the parts are gone, the respondent cannot verify the mechanic’s statement about what caused the headlight damage. While I accept the applicant’s submission that their mechanic is an expert, the respondent had a contractual right to perform its own inspection.

21.      For these reasons, I find the respondent is not liable to pay for the Prius headlight damage under the terms of the Policy.

22.      The applicants submit that a manager employed by the respondent told them the Prius damage would be covered if caused by an “act of God.” However, I find that this statement made by an ICBC employee during the claims process does not override the specific written contractual language set out in the Policy. The applicants negated any right to insurance coverage, regardless of the cause of the damage, when they proceeded with repairs and disposed of the parts without the respondent’s consent or reasonable opportunity for inspection.

23.      I therefore dismiss the applicants’ claim.

24.      The tribunal’s rules provide that the successful party is generally entitled to recovery of their fees and expenses. The applicants were unsuccessful, so I dismiss their claim for reimbursement of tribunal fees and dispute-related expenses. The respondent did not pay any fees and did not claim any dispute-related expenses.

ORDERS

25.      I dismiss the applicant’s claims and this dispute.

Kate Campbell, Tribunal Member






 楼主| 发表于 10/18/2019 22:59:01 | 显示全部楼层
本帖最后由 郭国汀 于 10/18/2019 23:01 编辑

Szigeti et al v. Insurance Corporation of British Columbia
Collection
Small Claims Decisions
Date
2018-06-11
Neutral citation
2018 BCCRT 244
File numbers
SC-2017-003868
Decision type
Final Decision





Date Issued: June 11, 2018
File: SC-2017-003868
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Szigeti et al. v. Insurance Corporation of British Columbia,
2018 BCCRT 244
BETWEEN:
Thomas Szigeti and Gavriella Szigeti
APPLICANTS
AND:
Insurance Corporation of British Columbia
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Shelley Lopez, Vice Chair

INTRODUCTION

1.         This dispute is about the premium the respondent insurer, Insurance Corporation of British Columbia (ICBC), charged for the 2017 Tesla Model X P90D vehicle owned by Gavriella Szigeti, the wife of the applicant Thomas Szigeti.

2.         Mr. Szigeti’s application and the original Dispute Notice named him as the only applicant. While the parties during the facilitation and later submission processes indicated Ms. Szigeti should be an applicant, there was never a formal application for an Amended Dispute Notice. However, as Ms. Szigeti’s role as a co-applicant is agreed to by all parties as well as Ms. Szigeti, I have added her as a co-applicant in the style of cause above.

3.         On March 31, 2017 the applicants paid ICBC a total of $3,940 for the Tesla insurance. On May 10, 2017, ICBC sent Ms. Szigeti an invoice for $906 indicating it had undercharged the premium for the Tesla, due to a “Fee Calculation Error”. The applicants say ICBC is responsible for any errors it made and they should not have to pay the invoiced premium amount.

4.         ICBC says the initial premium was, as noted on the issued insurance Certificate, a temporary charge for a generic vehicle and that the Certificate noted a bill could be sent. ICBC says it was entitled to treat the premium difference of $906 for the specific Tesla vehicle as a debt. Mr. Szigeti represents the applicants. ICBC is represented by Chris Beneteau, an employee and lawyer in its legal department.

JURISDICTION AND PROCEDURE

5.         These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 3.1 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

6.         The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility or other reasons that might require an oral hearing. Neither party requested an oral hearing.

7.         The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

8.         Under tribunal rule 126, in resolving this dispute the tribunal may: order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate.

ISSUES

9.         The issue in this dispute is whether ICBC was entitled to charge the applicants an additional $906, plus interest for late payment, for the premium difference between a generic new car and their specific Tesla vehicle.

EVIDENCE AND ANALYSIS

10.      In a civil claim such as this, the applicants bear the burden of proof on a balance of probabilities. I have only addressed the evidence and arguments to the extent necessary to explain my decision.

11.      On March 21, 2017, the applicant and his wife went to an insurance broker and sought insurance for the Tesla. On March 30, 2017, the broker advised the applicant that the insurance premium for their Tesla vehicle would be $2,600 for ‘own damage’, rate class 021. As set out below, that is what ICBC charged the applicant for ‘own damage’ coverage.

12.      On March 31, 2017, ICBC issued an Owner’s Certificate of Insurance and Vehicle License to Ms. Szigeti, the registered owner of the Tesla. The insurance was for rate class 021 and immediately below the signature line it stated “Temporary Rate Group used. You may receive a bill or refund”. Under this policy, the applicants obtained ‘basic’ and ‘third party liability’ coverage for $1,340. Under a separate ‘Special Risk Own Damage Policy” the applicant paid $2,600. The total of these two insurance policies is $3,940.

13.      On May 10, 2017, ICBC issued Ms. Szigeti an “Insurance Underpayment Invoice” for $906, noting that a “fee/premium underpayment” occurred on her policy, due to a “Fee Calculation Error”. The invoice noted that interest at 1.5% per month, compounded monthly (19.56% per year) would be charged if the invoice was not paid within 30 days. This invoice related to the ‘basic’ insurance, that every motorist in British Columbia must carry by law.

14.      By August 2, 2017, the interest on ICBC’s underpayment invoice brought the total outstanding to $919.59, which Mr. Szigeti paid on that date.

15.      The crux of this dispute is that applicants say that the ‘temporary rate group’ clause was “fine print” that should have been drawn to his wife’s attention by requiring her to initial that term. The applicants also say that ICBC should not have called the alleged underpayment an “Error”, and if it was an error, it was ICBC’s error and their responsibility. In both respects, I disagree.

16.      First, as noted, the “you may receive a bill” clause is not hidden or buried, as suggested by the applicants. The Certificate is a 2-page document that the vehicle’s owner must sign, and the clause appeared just below the applicant’s wife’s signature on the second page headed ‘Coverages, Fees and Premiums”. Given this ‘you may receive a bill’ clause, there was no finalized contract between the parties for the initial invoice that did not include the $906 at issue, as submitted by the applicants.

17.      An insured’s initials on an insurance policy are generally used so that the insured is precluded from later saying they were not aware of the term, in the event the insured is found in breach of the contract such as driving for business when the car is only insured for pleasure use. That is not the scenario here. The absence of Ms. Szigeti’s initials on the ‘you may receive a bill’ clause is not determinative. Neither is the fact that the $906 was not referenced at the outset.

18.      In a late August 2017 email exchange with Mr. Szigeti, ICBC advised that the applicants’ broker had provided generic ‘new model’ information about the vehicle, and it was on that basis that ICBC issued the ‘temporary rate group’ Certificate for the Tesla. I note the broker is not a party to this dispute. Contrary to Mr. Szigeti’s apparent suggestion in his underlying emails with ICBC, while a broker may be affiliated with ICBC and part of ICBC’s “network” of brokers, ICBC and the broker are not the same entity. The broker is an independent contractor.

19.      For the purposes of this dispute, the material point is that the applicants initially paid the incorrect amount of insurance for their specific Tesla, and that the applicable legislation required that the correct premium amount be paid.

20.      In particular, ICBC’s rates for basic insurance are contained in the Basic Insurance Tariff and are set by the BC Utilities Commission, not ICBC. ICBC is required to charge premiums set out in the Basic Insurance Tariff, as per section 44 of the Insurance Corporation Act. In other words, ICBC is required by law to charge the additional $906 for the particular make and model at issue, the Tesla. Under section 15.7(2) of the Insurance Vehicle Regulation, ICBC is authorized to recover unpaid premium amounts as a debt, which ICBC did when it sent the applicant’s wife the May 10, 2017 invoice.

21.      ICBC was also authorized to charge interest on the unpaid premium, which amounted to $13.59, under section 15.71 of the Insurance Vehicle Regulation.

22.      Next, I accept that the reference to the initial Certificate’s premium total as being a “Fee Calculation Error” was not an ideal description in the circumstances. However, I ultimately agree with ICBC that the invoice for $906 was not to correct an earlier misrepresentation. Rather, it was an invoice to correct the insurance premium for the specific make and model, the Tesla, rather than a generic model. Again, the original Certificate expressly stated that a bill could be issued. I have no evidence before me as to why the broker requested insurance for a generic new model when it knew the applicant’s vehicle was a Tesla Model X. Nonetheless, the premium for the applicants’ specific Tesla vehicle was the amount ICBC ultimately charged, including the $906, which by law ICBC was entitled to treat as a debt until it was paid.

23.      Even if ICBC had made an error in its invoicing to the applicants, it was entitled by law to correct the error and collect the correct premium for the Tesla, as described above. While I accept that the applicants were caught by surprise when they received the $906 invoice, they do not particularly challenge that the correct premium for their Tesla was in fact inclusive of the $906 at issue. I accept that the applicants ultimately paid the correct premium for their Tesla.

24.      In summary, I find ICBC has not breached its obligations under its insurance contract with the applicants. ICBC properly charged the applicants the additional $919.56, inclusive of $13.59 in interest. As such, I do not need to address the applicant’s claims for damages.

25.      I dismiss the applicants’ dispute, including their claim for reimbursement of tribunal fees given they were unsuccessful.

ORDER

26.      I order that the applicants’ dispute is dismissed.

Shelley Lopez, Vice Chair





 楼主| 发表于 10/18/2019 23:03:17 | 显示全部楼层
Yan v. New Horizons Car & Truck Rentals Ltd. dba Discount Car and Truck Rentals
Collection
Small Claims Decisions
Date
2019-08-27
Neutral citation
2019 BCCRT 1018
File numbers
SC-2019-001935
Decision type
Final Decision
Decision status
Notice of Objection Filed
[url=https://decisions.civilresolutionbc.ca/crt/crtd/en/420639/1/document.do][/url]





Date Issued: August 27, 2019
File: SC-2019-001935
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Yan v. New Horizons Car & Truck Rentals Ltd. dba Discount Car and Truck Rentals, 2019 BCCRT 1018
BETWEEN:
TO YAN
APPLICANT
AND:
NEW HORIZONS CAR & TRUCK RENTALS LTD. dba DISCOUNT CAR AND TRUCK RENTALS
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Julie K. Gibson
INTRODUCTION

1.      This dispute is about a car rental.

2.      The applicant To Yan says he booked a car rental with the respondent, New Horizons Car & Truck Rentals Ltd. dba Discount Car and Truck Rentals, but that the respondent failed to provide the rental as described.

3.      The applicant claims a total of $1,433.95 broken down as:

a.    $702.45 for the cost of a rental car,

b.    $687.50 for time spent dealing with the respondent, and

c.    $44.00 for mileage.

4.      The respondent says the applicant booked an economy size car but then insisted he had booked an SUV. The respondent says that the applicant would not accept its attempt to resolve the issue and rented a car elsewhere.

5.      The applicant is self-represented. The respondent is represented by employee or principal Rafique Muljee.

JURISDICTION AND PROCEDURE

6.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

7.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In some respects, this dispute amounts to a “he said, he said” scenario with both sides calling into question the credibility of the other. Credibility of witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me.

8.      Further, bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note the decision Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. I decided to hear this dispute through written submissions.

9.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

10.   Under tribunal rule 9.3(2), in resolving this dispute the tribunal may make one or more of the following orders, where permitted under section 118 of the CRTA:

a.    order a party to do or stop doing something;

b.    order a party to pay money;

c.    order any other terms or conditions the tribunal considers appropriate.

ISSUE

11.   The issue in this dispute is whether the respondent failed to provide the applicant with the car the applicant reserved, and if so, whether the applicant is entitled to the claimed damages.

EVIDENCE AND ANALYSIS

12.   In this civil claim, the applicant bears the burden of proof on a balance of probabilities. I have reviewed all of the evidence but only refer to the evidence and submissions as I find necessary to provide context for my decision.

13.   The parties agree that the applicant attended at the Richmond branch of Discount Car and Truck rentals on December 8, 2018 and reserved a car for pick up on December 22, 2018.

14.   On December 22, 2018, the applicant went to pick up the car. The applicant thought he had booked an SUV. The respondent says store staff confirmed that the applicant booked an economy car, referring to the booking print out.

15.   The booking print out shows that the applicant reserved an economy car from the respondent, for an estimated price of $29.99 per day plus taxes and insurance. For a 14-day rental, the base price would be about $420.

16.   The applicant says the respondent could not find his reservation. The applicant says the respondent “did not fulfil the car” he ordered.

17.   The respondent says it could have offered an economy car, but the applicant no longer wanted it, and asked for an SUV. The respondent says it offered the applicant an option of renting a Jeep Compass SUV for $60.00 per day. The applicant requested that rate for a larger Dodge Durango, but the respondent said the rate for the larger SUV would be higher. The applicant declined the rental.

18.   The applicant then rented a car from another company for a total of $702.45, broken down as $30 per day for a 14-day period, plus insurance and taxes.

19.   I find that the booking printout is more consistent with the respondent’s version of events than that of the applicant. The applicant did not prove that the respondent failed to provide an economy car. I find the applicant wanted an SUV, which was not an economy car. I find the applicant has not proven, on a balance of probabilities, that the respondent breached a contract between them or is otherwise responsible for damages.

20.   Given my conclusion, I find it is not necessary for me to consider the applicant’s damages claim in any detail. That said, the tribunal does not ordinarily award a party for their ‘time spent’ on a dispute, consistent with its practice not to award legal fees except in extraordinary cases. This is not an extraordinary case. Next, the applicant’s claim is for the cost of the rental he obtained elsewhere, and at least $420 of that he would have had to pay the respondent had he completed the rental. Even if I had found the respondent had breached the contract, it would be inappropriate to award the applicant an refund of his rental fees.

21.   Under section 49 of the CRTA and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. The respondent was successful but paid no tribunal fees and did not claim dispute-related expenses.

ORDER

22.   I dismiss the applicant’s claims and this dispute.

Julie K. Gibson, Tribunal Member




 楼主| 发表于 10/18/2019 23:04:51 | 显示全部楼层
Fiorentino v. Stephens
Collection
Small Claims Decisions
Date
2019-02-13
Neutral citation
2019 BCCRT 175
File numbers
SC-2018-001654
Decision type
Final Decision
[url=https://decisions.civilresolutionbc.ca/crt/crtd/en/363158/1/document.do][/url]





Date Issued: February 13, 2019
File: SC-2018-001654
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Fiorentino v. Stephens, 2019 BCCRT 175
BETWEEN:
Misty Fiorentino
APPLICANT
AND:
Jack Henry Stephens
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Lynn Scrivener
INTRODUCTION

1.      This is a dispute about the installation of a car audio system. The applicant, Misty Fiorentino, says that the respondent, Jack Henry Stephens, installed faulty equipment that did not function properly and drained power from her vehicle’s battery. She seeks $4,978.70 for a refund of the amount paid to the respondent, repair costs, and other expenses. The respondent denies that any of the parts or service he provided were the cause of the issues with the applicant’s car, and takes the position that he should not have to pay the applicant anything.

2.      The parties are self-represented.

JURISDICTION AND PROCEDURE

3.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

4.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.

5.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

6.      Under tribunal rule 126, in resolving this dispute the tribunal may make one or more of the following orders:

a.    order a party to do or stop doing something;

b.    order a party to pay money;

c.    order any other terms or conditions the tribunal considers appropriate.

ISSUES

7.      The issues in this dispute are:

a.    whether the respondent must refund $3,400 the applicant paid to him for parts and labour;

b.    whether the respondent must pay the applicant $329.03 for car insurance during the period of time she was unable to use her car; and

c.    whether the respondent must reimburse the applicant $1,238.17 for repair costs.

EVIDENCE AND ANALYSIS

8.      The applicant brought her vehicle to the respondent to install some audio equipment. The parties agreed on a price of $3,400 for the parts and labour. The respondent’s handwritten invoice contained the notation “All labour includes Lifetime Warranty”. A text message sent by the respondent to the applicant stated that all parts come with a 1-year warranty from the manufacturer.

9.      The applicant says that she was not entirely satisfied with the work performed by the respondent because, among other things, the compact disc player did not function correctly. She also says that there was a hissing noise in the audio and the battery in her vehicle was drained repeatedly. She contacted the respondent about her issues, who advised that there was a problem caused by the car’s manufacturer. The respondent declined to address this problem, and also declined to provide the applicant with the receipts for the parts he used.

10.   The issues with the battery worsened, and the applicant had to call for roadside assistance on 8 occasions between August 31 and December 6, 2017 because the vehicle would not start. She took her vehicle to the dealership, who advised her that the aftermarket parts installed by the respondent were drawing off the electrical system when the ignition was turned off. When these parts were disconnected, the problem did not recur.

11.   The applicant took her vehicle to another vendor to have the aftermarket parts inspected. The technician determined that there were defects in one of the parts and recommended that they be replaced. The applicant took this recommendation, and had the parts replaced. Since the parts were replaced, she has not experienced issues with the battery and the hissing noise resolved.

12.   The applicant seeks a refund of the money she paid to the respondent, as well as reimbursement for expenses she says she incurred as a result of the respondent’s work on her vehicle. She says that her vehicle was functioning properly prior to his involvement, and the problems began shortly thereafter. She submits that the statements from the dealership and the other vendor establish that the problem was caused by a part installed by the respondent.

13.   The respondent’s position is that he is not responsible for the problems with the applicant’s vehicle. He stated that he was not aware of the battery draining, but that he determined that the hissing sound was related to a problem with a part that originated with the vehicle manufacturer and would have been covered by the vehicle’s warranty. He stated that he is not willing to take on these types of issues. He also noted that the applicant had taken the vehicle elsewhere, and stated that the problems were caused by those technicians or an alarm installed in the vehicle. According to the respondent, the presence of soldering and “mixed matched connectors” in the photos proves that someone else performed work on the vehicle as his wiring does not look like that. The respondent states that he attempted to assist the applicant with the issues in her vehicle, but blocked her number when she began to be “unreasonable”.

14.   The respondent’s one-year warranty was not contained in the invoice that represents the parties’ agreement, but was described by him in text messages. I find that the implied warranty provisions in section 18 of the Sale of Goods Act (SGA) apply. This section requires that each item is in the condition described and is of saleable quality and reasonably fit for its purpose. Section 18(c) of the SGA states that there is an implied condition that the goods will be durable for a “reasonable period of time”, taking into account how the goods normally would be used and the circumstances of the sale.

15.   Based on the evidence before me, I conclude that the parts installed by the respondent were not reasonably fit for their purpose as contemplated by the SGA. I accept the evidence from the dealership that the problems with battery drain stopped as soon as the parts were disconnected. I also accept the evidence from the other vendor that it attempted to fix a part, but that it was not able to. I acknowledge the respondent’s comments about the presence of unfamiliar connectors and solder, but find that this resulted from the vendor’s attempt to fix the part. This evidence, together with the applicant’s statement that the vehicle functioned properly once the parts were replaced, supports the conclusion that the part installed by the respondent was faulty and required replacement. It is undisputed that a sound system should not drain a vehicle’s battery when the vehicle is off.

16.   Although I acknowledge that the respondent made an attempt to troubleshoot the applicant’s problems, I find that he did not make sufficient efforts as he cut off contact with the applicant before a resolution was achieved. Further, he did not provide receipts to the applicant so that she could pursue compensation or a replacement part from the part’s manufacturer. I find that the respondent’s failure to honour his warranty amounts to a breach of the contract with the applicant.

17.   Damages for the breach of a contract are intended to put a claimant in the same position that he or she would have occupied had the contract been carried out by both parties (see Water’s Edge Resort v. Canada (Attorney General), 2015 BCCA 319 at para. 39). I find that the applicant is entitled to the reimbursement of the $1,238.17 she spent on labour and replacement parts to fix her vehicle.

18.   The applicant seeks a full refund of the $2,800 she paid the respondent for parts, along with the $600 she paid for labour, for a total of $3,400. I find that, had the respondent met his obligation to honour the warranty, he would have replaced the faulty part at no charge to the applicant. She would not have received a refund of the amounts paid to the respondent in these circumstances. I find that if I were to award the applicant the $3,400 she seeks, I would put her in a better position than she would have been in absent the breach. Accordingly, I decline to make an order for this amount.

19.   I also find that the applicant is not entitled to the amount of $329.03 representing the insurance payment she made during the month of December 2017 when her vehicle was in the shop to address issues relating to the faulty part. It is not clear why it was necessary for the applicant’s vehicle to be in the shop for this extended period of time as the evidence does not establish that the vehicle was inoperable despite the issues with the sound system. I make no order for this amount.

20.   I have determined that the applicant is entitled to the payment of $1,238.17 from the respondent. She is also entitled to pre-judgment interest under the Court Order Interest Act (COIA). Calculated from the date the vehicle was repaired, this amounts to $17.58.

21.   Under section 49 of the Act, and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. As the applicant was largely successful, I see no reason in this case not to follow that general rule. I find the applicant is entitled to reimbursement of $150.00 in tribunal fees and $11.05 in dispute-related expenses.

ORDERS

22.   Within 30 days of the date of this order, I order the respondent to pay the applicant a total of $1,416.80, broken down as follows:

a.    $1,238.17 as reimbursement for repair costs,

b.    $17.58 in pre-judgment interest under the COIA, and

c.    $161.05 for $150.00 in tribunal fees and $11.05 for dispute-related expenses.

23.   The applicant is entitled to post-judgment interest, as applicable.

24.   Under section 48 of the Act, the tribunal will not provide the parties with the Order giving final effect to this decision until the time for making a notice of objection under section 56.1(2) has expired and no notice of objection has been made. The time for filing a notice of objection is 28 days after the party receives notice of the tribunal’s final decision.

25.   Under section 58.1 of the Act, a validated copy of the tribunal’s order can be enforced through the Provincial Court of British Columbia. A tribunal order can only be enforced if it is an approved consent resolution order, or, if no objection has been made and the time for filing a notice of objection has passed. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.

Lynn Scrivener, Tribunal Member




 楼主| 发表于 10/18/2019 23:06:18 | 显示全部楼层
Chen v. Insurance Corporation of British Columbia
Collection
Small Claims Decisions
Date
2018-02-02
Neutral citation
2018 BCCRT 25
File numbers
SC-2017-002925
Decision type
Final Decision
[url=https://decisions.civilresolutionbc.ca/crt/crtd/en/305667/1/document.do][/url]





Date Issued: February 2, 2018
File: SC-2017-002925
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Chen v. Insurance Corporation of British Columbia, 2018 BCCRT 25
BETWEEN:
Jing Chen
APPLICANT
AND:
Insurance Corporation of British Columbia
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Shelley Lopez, Vice Chair

INTRODUCTION

1.         The respondent insurer, Insurance Corporation of British Columbia (ICBC), found the applicant Jing Chen was 100% liable for damage to another vehicle owned by a third party Mr. B, arising from a July 2015 incident. Ms. Chen says she suspected fraud and denies any liability, and submits ICBC failed adequately investigate the matter.

2.         Ms. Chen wants her ICBC insurance claim history cleared of this incident. She also asks for $400 to clear any ICBC penalties along with $2,599 in damages for mental stress and psychological pain. The parties are self-represented.

JURISDICTION AND PROCEDURE

3.         These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 3.1 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

4.         The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility or other reasons that might require an oral hearing. Neither party requested an oral hearing.

5.         The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

6.         Under tribunal rule 121, in resolving this dispute the tribunal may: order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate.

ISSUES

7.         The issues in this dispute are:

a.  Was Ms. Chen likely involved in the July 2015 incident giving rise to Mr. B’s 2015 ICBC claim?

b.  Did ICBC adequately investigate Mr. B’s claim?

c.   Did ICBC properly assess 100% liability against Ms. Chen for Mr. B’s claim?

d.  To what extent, if any, is Ms. Chen entitled to her requested remedies?

EVIDENCE AND ANALYSIS

8.         In a civil claim such as this, the applicant bears the burden of proof on a balance of probabilities. I have only addressed the evidence and arguments to the extent necessary to explain my decision.

9.         Ms. Chen says that on July 20, 2015 she received ICBC’s letter notifying her of Mr. B’s claim that Ms. Chen had caused damage to his vehicle on July 8, 2015. At the material time, Mr. B drove a blue 2008 Pontiac Wave. Ms. Chen drove a white Honda CR-V. Mr. B’s claim report was that the driver of Ms. Chen’s vehicle had opened her driver’s side door in a way that struck and damaged his front passenger side door, while parked in the lot of Save-On-Foods in Surrey. Mr. B reported that the driver drove off without leaving her details, but that he recorded her license plate. Mr. B gave evidence to ICBC that he had been standing in the parking lot with another person, Mr. E (who worked at the store), and they both witnessed the incident. ICBC interviewed Mr. E by telephone, and ICBC’s telephone notes indicate he confirmed Mr. B’s account and also described Ms. Chen as the driver of the vehicle that hit Mr. B’s car.

10.      Ms. Chen says she told ICBC that she recalled that there was a small light green car parked close to her car on that day, and that her driver’s door had only touched this green car when she got into her car. She says she did not believe there was any damage done. Given this and that Mr. B’s car is blue not green, Ms. Chen says she suspected fraud, and asked ICBC to contact a witness about the car’s colour. Ms. Chen says the ICBC claims adjuster, Ms. R, acknowledged she never contacted the witness. Yet, I have ICBC’s telephone notes of the interviews with Mr. E and Mr. B. There is no other witness information before me.

11.      Ms. Chen says that neither the photos of the blue car nor the witness’ statement support ICBC’s final decision that Ms. Chen was 100% liable for the claim. I do not agree.

12.      As referenced above, Ms. Chen signed a July 22, 2015 statement in which she acknowledged that she may have hit a “little green car” car next to hers in the Save-On-Foods parking lot. Ms. Chen also questioned if the other car had pre-existing damage.

13.      ICBC inspected Ms. Chen’s Honda and found that the height of the Pontiac’s damage likely matched a point in the body of the Honda’s door. In its August 11, 2015 letter, ICBC assessed 100% liability against Ms. Chen. Before coming to this decision, ICBC’s estimating manager concluded that the Pontiac repairs were reasonable and likely related to the damage caused. I find that ICBC’s investigation of the incident was reasonable, given the evidence before me that included an estimator’s examination, a review by a claims analyst, and telephone interviews with Ms. Chen, Mr. B and Mr. E.

14.      ICBC submits that in accordance with sections 74 and 74.1 of the Insurance (Vehicle) Regulation, ICBC fulfilled its responsibility to investigate Mr. B’s claim and properly admitted liability on Ms. Chen’s behalf. I agree.

15.      I find that the weight of the evidence before me supports ICBC’s position and its assessment of 100% liability against Ms. Chen. Overall, I find the likely explanation is that Ms. Chen’s car door hit Mr. B’s car, and Ms. Chen simply had an inaccurate later recollection of the vehicle. I say this given the evidence of Mr. B’s and Mr. E’s statements to ICBC and Ms. Chen’s own statement to ICBC recalling that she may have touched the car adjacent to hers in the Save-On-Foods parking lot. In particular, Ms. Chen acknowledged that the car parked next to hers, which I find was Mr. B’s car, was parked very close to her, as she herself had parked almost on the yellow dividing line (as shown on Ms. Chen’s diagram). Ms. Chen stated that she yelled for that car’s driver to come move their vehicle, but no one came. I find that Ms. Chen had little space to open her door because she parked almost right on the yellow line for the parking space and that she did in fact impact the car adjacent to hers.

16.      The central issue in this dispute is Ms. Chen’s assertion that her car door did not open into Mr. B’s car because 12 days after the incident she said she believed that the other car was blue not light green, and, because she says the damage could not have resulted from her car’s position.

17.      I find Ms. Chen’s later assertion about a different colour is not sufficient to establish that it was not her car that hit Mr. B’s vehicle or that Mr. B’s car was not hit at all. The totality of all the other evidence supports the conclusion that Ms. Chen hit Mr. B’s car when she opened her car door in the parking lot. I also do not accept Ms. Chen’s arguments about how her car door could not have caused the damage to Mr. B’s vehicle, and instead I prefer ICBC’s evidence from persons trained to provide that assessment. That ICBC’s personnel could not be 100% definitive does not cause me to reject their on-balance assessment that Ms. Chen’s vehicle hit Mr. B’s vehicle.

18.      Given my conclusions above, I find Ms. Chen has not established that Mr. B’s claim was fraudulent, as Ms. Chen has alleged. I find Ms. Chen has not established that ICBC failed to conduct a reasonable investigation as required by the insurance contract and the relevant legislation.

19.      In summary, I find ICBC has not breached its obligations under its insurance contract with Ms. Chen. I confirm ICBC’s finding that Ms. Chen was 100% liable for the ICBC claim. As such, I do not need to address Ms. Chen’s claims for damages.

20.      I dismiss Ms. Chen’s dispute, including her claim for reimbursement of tribunal fees.

ORDER

21.      I order that the applicant’s dispute is dismissed.

Shelley Lopez, Vice Chair




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