Date Issued: April 25, 2019

File: SC-2018-008020

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Neiser v. Ivanhoe Cambridge II Inc., 2019 BCCRT 497

Between:

Raegan Neiser

Applicant

And:

Ivanhoe Cambridge II Inc.

Respondent

INTRODUCTION

1.      This is a dispute about damage to a vehicle. The applicant says an unmarked hazard in a parking structure operated by the respondent, Ivanhoe Cambridge II Inc., caused $1,319.85 damage to her vehicle and seeks an order for that amount.  The respondent denies it is responsible for the damage to the applicant’s vehicle or the amount claimed.

2.      The applicant is self-represented. The respondent is represented by an employee.

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 9.3(2), 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.

ISSUE

7.      The issue in this dispute is whether the respondent is responsible for the $1,319.85 in repair costs claimed by the applicant.

EVIDENCE AND ANALYSIS

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

9.      The applicant says that, on December 22, 2016, she was at the Metrotown parking structure. She located an empty stall in which to park but, while reversing into it, heard a loud scraping sound. The applicant says there was a “large unmarked safety hazard” that was dark coloured, low to the ground, and not visible in her side mirrors, that caused damage to her vehicle. The evidence contains images of a pillar adjacent to the parking stall, and a scrape on a vehicle door.

10.    The applicant says she reported the incident to a security guard and to the Insurance Corporation of British Columbia (ICBC). According to the applicant, ICBC advised her to bring an action against the respondent as opposed to making a claim so as to avoid impacting her insurance premiums. The applicant says the respondent is responsible for the hazard, and she should not have to deal with an impact to her insurance premiums as a result of it.

11.   The respondent denies that it is responsible for the damage to the applicant’s vehicle, and questions why there is no “verdict” from ICBC on the matter. The respondent’s position is that the applicant is responsible for driving her vehicle into the pillar, which it describes as an “approved building structure”, and the associated damage. However, the respondent also says that it would follow any determination made by ICBC.

12.   The evidence before me shows that ICBC did not conduct its own inspection of the parking structure. A December 19 (year not provided) email from ICBC advised that it would not investigate the reported safety hazard, which it said is a civil matter. The message confirmed that the applicant has insurance coverage, but that making a claim would impact her insurance premiums. While the respondent may wish to have information from the applicant’s insurer, the fact that ICBC did not investigate the incident is not determinative of the matter.

13.   The respondent does not dispute that it operates the parking structure in which the incident occurred. Section 3 of the Occupiers Liability Act (OLA) provides that an occupier of a premises owes a duty to take care that a person and their property will be reasonably safe in using the premises. For the purpose of this decision, I accept that the respondent met the definition of an “occupier” in the OLA as it had responsibility for, and control of, the condition of the parking lot.

14.   The key issue is whether the presence of the pillar adjacent to the parking stall breached the standard of care and failed to keep the applicant and her vehicle reasonably safe while using the parking stall. The images before me show a pillar that is painted green, with grey paint on the bottom portion of the pillar and the base. There is a wall behind the pillar. The base of the pillar is slightly wider than the pillar itself, and extends beyond the yellow line that marks the border of the parking stall. The angles of the images suggest that the base protrudes into the parking stall by several centimetres. The images show that the area is well lit, and that the grey base of the pillar is distinct from the colour of the pavement.

15.   The applicant states that she was not able to see the base of the pillar in the side mirrors of her vehicle. However, she did not explain why she could not see the pillar in the rear-view mirror while reversing. Further, I find that the applicant would have had to drive past the parking stall before reversing into it, and that the pillar would have been visible at that time.

16.   Although it protrudes slightly into the parking stall (as delineated by the painted line), I find that the base of the pillar was clearly visible. As the pillar is there to be seen in the parking stall, I find that its presence does not amount to a breach of the duty of care set out in the OLA.  

17.   Even if I had found that the respondent had breached its duty of care, I would not make the order requested by the applicant. The applicant provided an estimate from a repair shop in the amount of $1,319.85. The images provided by the applicant show damage to the bottom portion of a door only, but the estimate involves other areas (the front bumper, a headlight, the fender, a side mirror, and door handle). It is not clear to me how the incident described by the applicant could have resulted in damage to these additional areas. I find that the applicant has not met her burden of proof to establish her claim for damages. Accordingly, I dismiss the applicant’s claim.

ORDER

18.   I dismiss the applicant’s claim and this dispute.