Date Issued: December 12, 2018
File: SC-2018-003075
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Fung v. The Owners, Strata Plan LMS 0013, 2018 BCCRT 840
Between:
Felix Fung
Applicant
And:
The Owners, Strata Plan LMS 0013
Respondent
| REASONS FOR DECISION |
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| Tribunal Member: |
Shelley Lopez, Vice Chair |
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INTRODUCTION
1. In this small claims dispute, the applicant, Felix Fung, says the respondent strata corporation, The Owners, Strata Plan LMS 0013 (strata), unreasonably towed his car while he was visiting a friend at the strata’s Coquitlam building on April 30, 2018. The applicant says the respondent did not have a sign stating a visitor’s pass was required or cars would be towed. The applicant claims reimbursement of $166.23 for towing charges and taxi fare.
2. The applicant is self-represented. The respondent is represented by a strata council member.
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.
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 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.
ISSUE
7. The issue in this dispute is whether the respondent reasonably towed the applicant’s vehicle that was parked in visitor’s parking without a pass, and if so, what is the appropriate remedy.
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 submissions below as necessary to explain my decision.
9. The following facts are undisputed:
a. the respondent strata had changed its bylaws after its July 26, 2017 annual general meeting, such that visitor parking passes were required to be displayed in cars parked in visitor parking spots.
b. on April 30, 2018, the applicant visited a friend in the strata’s building for about 20 minutes, and parked in a visitor’s parking space on the respondent’s property.
c. on April 30, 2018, the respondent towed the applicant’s car from its property, on the basis the applicant did not display a visitor’s parking pass.
d. at the time the applicant’s car was towed, the respondent’s signage did not state a visitor’s parking pass was required. Instead, the respondent’s towing signage at the time stated “Residential Visitor Parking only” and indicated a car could be towed if in violation, at the vehicle owner’s expense.
10. The respondent submits that as a realtor the applicant knew he needed to display a visitor parking pass, as shown in the applicant’s photos of signage at other buildings he visited. The applicant says the respondent failed to display a sign that the display of a pass was required and so he parked legally.
11. I find that the respondent’s authority to tow the applicant’s vehicle was based on the law of trespass. Unless the applicant had permission, he trespassed on the respondent’s property when he parked his vehicle. In other words, in the absence of legislation otherwise, an owner of private property is entitled to have a vehicle towed from its property, if not parked properly with permission. As cited in Webster v. Robbins Parking Service Ltd., 2016 BCSC 1863, the court in Graham v. Impark, 2010 ONSC 4982 (CanLII) stated (my bold emphasis added):
It is well known to most persons (even those that have not had the pleasure of taking first year property law at law school) that parking-lot law involves the law of bailment, the law of contract, and the law of trespass.
12. In this dispute, there was no contract or agreement between the parties directly, with respect to visitor parking. The applicant did not give or pay anything to the respondent to park on its property, such as where a person pays to park in a commercial parking lot. As noted above, the applicant was visiting a resident in the building at the time he parked on the respondent’s property. In other words, in this case, there was no “consideration”, a required element for a contract to exist. Here, the agreement or contract about parking was between the respondent strata and the owners and tenants in its building, who were bound by the strata’s bylaws that required a visitor’s parking pass to be displayed.
13. I find the law of bailment is not relevant here, as the applicant’s claim is not about any damage to his car or lack of proper care of it. Rather, the applicant’s claim is about the fact that the respondent towed his car at all.
14. I find the applicant’s claim is rooted in negligence. In turn, I find the applicant’s negligence is claim is based on the argument that with its signage the respondent had given him consent to use the visitor’s parking space as he did, without displaying a parking pass. Given that consent, the applicant says the strata had no right to tow his car. In other words, the applicant says the respondent was negligent in that it led him to believe he had permission to park in the visitor’s parking spot and that nothing more was required than the fact he was visiting someone in the building.
15. The general elements of a negligence claim are: the respondent owes a duty of care, the respondent failed to meet a reasonable standard of care, it was reasonably foreseeable that the respondent’s failure to meet that standard could cause the applicant’s damages, and the failure caused the claimed damages.
16. For the purposes of this decision, I accept that the respondent strata owed its residents and their visitors a duty of care with respect to their vehicles parked on the strata’s property. The fact that the strata allowed visitor parking by the public is support for this conclusion.
17. I also accept that the applicant sustained the claimed damages, namely the towing ($159.08) and taxi fare expenses ($7.15) and that these were foreseeable and caused by the respondent’s decision to have the applicant’s car towed. It is undisputed that clear signage at the time the applicant parked would have avoided this dispute and the applicant’s claimed damages.
18. I find the crux of this dispute is the standard of care and whether the respondent breached it. Was the reasonable standard of care to not tow vehicles without a displayed pass, given the signage in place? If so, then clearly the respondent breached that standard, given the undisputed facts set out above.
19. In other words, the signage issue is this: did the respondent reasonably lead the applicant to believe that he was entitled to park in the visitor’s parking space without displaying a pass, given the signage in place at the time. I find the answer to this question is yes.
20. Had the signage at the time said something like “authorized parking only”, I find the onus would have been on the applicant to ensure he had the proper permission to park on the respondent’s property. However, the signage in place at the time the applicant’s car was towed simply stated “Residential Visitor Parking only” and did not require a displayed pass. I find that signage reasonably led the applicant to believe that so long as he was visiting a resident in the strata, he could park there without doing more. I therefore find that the respondent gave its consent to the applicant to park in the space, and then unreasonably revoked that consent when it had the applicant’s car towed. In doing so, I find the respondent breached the applicable standard of care.
21. The fact that the applicant was apparently aware of the pass requirement in other buildings is support for the applicant’s position, not the respondent’s as alleged by the respondent. Given the respondent did not have that “pass required” signage like other strata corporations had, the applicant reasonably concluded no pass was required. This is evidence supporting a conclusion that signage a pass was required was the standard of care.
22. In summary, I find the applicant has proved the respondent was negligent in towing his car from its property. As the applicant was successful in his claims, in accordance with the Act and the tribunal’s rules I find the applicant is entitled to reimbursement of $125 in tribunal fees.
ORDERS
23. Within 14 days of this decision, I order the respondent to pay the applicant a total of $292.66, comprised of:
a. $166.23 in damages,
b. $1.43 in pre-judgment interest under the Court Order Interest Act, calculated from April 30, 2018, and
c. $125 in tribunal fees.
24. The applicant is entitled to post-judgment interest, 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 tribunal’s 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 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.
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| Shelley Lopez, Vice Chair |