Date Issued: January 28, 2019

File: SC-2018-005746

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Access Driver Rehabilitation Specialists v. Chow, 2019 BCCRT 103

Between:

Access Driver Rehabilitation Specialists

Applicant

And:

John Kon-Choi Chow

Respondent

AND:

                    Access Driver Rehabilitation Specialists

RESPONDENT BY COUNTERCLAIM

INTRODUCTION

1.      This is a dispute about payment for driver rehabilitation services. The applicant, Access Driver Rehabilitation Specialists (Access) says that the respondent, John Kon-Choi Chow, has refused to pay its invoice in the amount of $1,300.00, and seeks an order for payment. Mr. Chow says he should not have to pay the invoice from Access as it provided him services he did not need. By counterclaim, he says that Access created a delay in him regaining his driver’s licence and seeks damages of $5,000.00 for three months of lost income and car-related expenses.

2.      Access is represented by its owner, Dean Robertson. Mr. Chow is 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 Mr. Chow must pay Access’ invoice in the amount of $1,300.00; and

b.    Whether Access must pay Mr. Chow $5,000.00 for loss of business and car-related expenses.

EVIDENCE AND ANALYSIS

8.      In a civil claim such as this, an applicant (by claim or counterclaim) bears the burden of proof on a balance of probabilities. The parties have provided submissions and evidence in support of their respective positions. Although I have read all of this information, I will refer only to that which is necessary to provide context to my decision.

9.      Mr. Chow was injured in a motor vehicle accident. His treating occupational therapist recommended a driving assessment. She completed a Program Referral Form for Access on dated October 11, 2017, in which she identified Mr. Chow’s driving status as “medical hold” and gave a description of his injury-related functional issues.

10.   On October 13, 2017, Mr. Chow signed a Consent to Participate in Driver Rehabilitation and Release of Information form in which he agreed to participate in a comprehensive driving evaluation, including a behind-the-wheel assessment. He confirmed his consent on December 8, 2017, the day of the evaluation. Access conducted the evaluation and, as permitted by the consent form, sent the associated report to ICBC, the occupational therapist, Mr. Chow’s physician and RoadSafetyBC.

11.   By way of a January 30, 2018 letter, RoadSafetyBC advised Mr. Chow that, based on the results of the driving evaluation, his participation in a Driver Rehabilitation Program (DRP) was recommended. The letter stated that Mr. Chow needed to apply for a new driver’s license with an R51 restriction (rehab assessor present/dual controls). The letter noted that Mr. Chow was not permitted to drive unless a qualified rehabilitation driver assessor or instructor was present in the vehicle. The letter advised that an ICBC road test and examination may also be required.

12.   ICBC declined to provide funding for the DRP. Mr. Chow emailed Access on February 5, 2018, and asked that Mr. Robertson “arrange training sessions and road test for me to get my full licence back”. He indicated that he was aware that he would have to pay out of his own pocket for these services and that he wished to have his license back as soon as possible due to family responsibilities. Subsequent email messages show that Mr. Robertson arranged the earliest possible road test and the parties arranged dates for training sessions.

13.   On March 10, 2018, Mr. Robertson emailed an invoice to Mr. Chow for Access’ services, and asked that payment be provided on March 13, 2018. On that date, Mr. Chow provided a post-dated cheque. He underwent, and passed, an Enhanced Road Assessment conducted by an ICBC examiner.

14.   Subsequent discussions with his lawyer and the ICBC examiner led Mr. Chow to believe that he had needed to undergo a driving assessment but not a road test. On March 23, 2018, Mr. Chow sent an email to Access advising that he had placed a stop payment on the cheque. He stated that the December 8, 2017 evaluation and the subsequent training and road test were a mistake. In a subsequent message, Mr. Robertson advised that there had been a change in ICBC’s testing procedures on March 5, 2018. As of that date, the Enhanced Road Assessment was required for RoadSafetyBC purposes. Despite this information, Mr. Chow continued to believe that he had undergone an unnecessary test.

15.    Access submits that it provided appropriate services to Mr. Chow, and that he owes money for those services. Mr. Chow’s submissions reiterate his view that he should not pay for Access’ services as they were unnecessary.

16.   Mr. Chow suggests that Access provided inaccurate information to RoadSafetyBC to “trick his innocent client for more business”. This assertion is not supported by the evidence. Mr. Chow expresses a particular concern that Access had him sign an authorization for a re-examination on December 8, 2017, and that an ICBC employee told him he had to return to Access for his DRP. While I do not doubt Mr. Chow’s recounting of the employee’s statement, I note that the consent form signed by Mr. Chow does not address any re-examinations.

17.   Mr. Chow agreed to the disclosure of the results of his driving evaluation to parties including RoadSafetyBC. That body, not Access, made a determination about placing a restriction on his driver’s licence. It was up to RoadSafetyBC to determine the appropriate process for Mr. Chow to regain his driver’s licence. This is so despite the fact that Mr. Chow’s physician stated that he was “medically cleared to return to driving” on January 20, 2018.

18.   Mr. Chow requested and received services from Access, including the scheduling of an Enhanced Road Assessment that enabled him to get an unrestricted driver’s licence. Although Mr. Chow may have later formed a different view of what services may have been necessary to address the restriction on his driver’s licence, he remains responsible for the costs of the services he requested and received. I find that Mr. Chow must pay Access $1,300.00, being the full amount of the invoice.

19.   In addition to the $1,300.00, I find that Access is entitled to pre-judgment interest of $14.95 pursuant to the Court Order Interest Act (COIA).

20.   Turning to Mr. Chow’s counterclaim, I find that he has not established that Access caused any loss of income or car-related expenses. Access is not responsible for the restrictions placed on Mr. Chow’s driver’s licence. Given my conclusions above, there is no indication that Access provided unnecessary services, or somehow delayed or interfered with Mr. Chow’s ability to regain his unrestricted licence. Accordingly, I find that Mr. Chow has not proven his claim that Access is responsible for any of the losses or expenses he claims. I decline to make an order for compensation and dismiss the counterclaim.

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. I see no reason in this case not to follow that general rule. I find Access is entitled to reimbursement of $125.00 in tribunal fees and $13.00 in dispute-related expenses. I dismiss Mr. Chow’s fee claim.

ORDERS

22.  Within 30 days of the date of this order, I order Mr. Chow to pay Access a total of $1,452.95, broken down as follows:

a.    $1,300.00 in payment of the invoice,

b.    $14.95 in pre-judgment interest under the (COIA), and

c.    $138.00 for $125.00 in tribunal fees and $13.00 for dispute-related expenses.

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

24.  Mr. Chow’s counterclaim is dismissed.

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.