Date Issued: September 24, 2019

File: SC-2019-002614

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Ardeleanu v. Volkswagen Group Canada Inc. et al, 2019 BCCRT 1126

Between:

CORNEL ARDELEANU

Applicant

And:

VOLKSWAGEN GROUP CANADA INC., BCAA INSURANCE CORPORATION, and INSURANCE CORPORATION OF BRITISH COLUMBIA

RespondentS

INTRODUCTION

1.      This is a vehicle damage claim.

2.      The applicant, Cornel Ardeleanu, says that his 2010 Volkswagen Tiguan was damaged during a ‘roadside assistance’ tow provided by the respondents, Volkswagen Group Canada Inc. (Volkswagen) and BCAA Insurance Corporation (BCAA). The applicant claims his vehicle repair costs of $3,721.99.

3.      The respondents deny the applicant’s claims. The respondent Volkswagen says it did not cause or contribute to the alleged damage. BCAA says the vehicle damage was not caused by the tow. The respondent, Insurance Corporation of British Columbia (ICBC), says the applicant’s loss is not covered under the applicant’s own Autoplan Optional Policy of insurance.

4.      The applicant is self-represented. Volkswagen is represented by its employee, Rawad AlRabbat, BCAA is represented by its in-house legal counsel, Andrew Guerra, and ICBC is represented by its employee, Kim Laurie.

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, 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.

ISSUE

9.      Are any of the respondents liable for the damage to the applicant’s vehicle, and if so, what is the appropriate remedy?

EVIDENCE AND ANALYSIS

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

11.   On October 21, 2018, the applicant’s Tiguan displayed engine fault code warnings. After visiting a Volkswagen specialist, Volkswagen had given the applicant free 24-hour roadside assistance coverage that included a tow to a Volkswagen dealership or authorized garage. The applicant called the roadside assistance number and had his vehicle towed to Cowell Volkswagen Service (Cowell). For some reason, it was BCAA who responded to the request and had Coquitlam Towing & Storage Co. Ltd. ("Coquitlam Towing") tow the applicant’s vehicle to Cowell. The applicant does not say that he had a roadside assistance plan directly through BCAA. Coquitlam Towing is not a named party in this dispute.

12.   The applicant says Coquitlam Towing’s driver improperly towed the vehicle on its rear wheels causing damage to the vehicle’s Haldex unit. Representatives at Cowell say they saw Coquitlam Towing tow the vehicle wheels down and that this likely caused the damage. BCAA had the vehicle inspected by a third-party transmission shop, who said it checked the vehicle and “saw no damage due to towing”.

Volkswagen and BCAA Roadside Assistance

13.   The basis of the applicant’s claim against Volkswagen and BCAA is that his vehicle was damaged during the roadside assistance tow. However, I find the applicant has not established on a balance of probabilities that the respondents would be responsible for the repair costs even if the vehicle was damaged during the tow. My reasons follow.

14.   To establish his claim against BCAA or Volkswagen, the applicant would need to prove they were liable in either contract or negligence.

15.   A contract generally includes certain rights, liabilities and obligations that are agreed to between the contracting parties. The common law principle of “privity of contract” means that a contract cannot give rights or impose obligations on persons who are not parties or beneficiaries of the contract.

16.   I infer the applicant had no contractual relationship with BCCA. I have no evidence that he did. Therefore, I find the applicant has not proven that BCAA had any contractual obligation with him for the care or condition of his vehicle. Absent a contract, I find that BCAA cannot be liable in contract for the vehicle damage.

17.   According to an email from Volkswagen to the applicant, Volkswagen did not provide the roadside assistance itself. The email says it was provided through an “external roadside assistance provider” named “Club Auto”. The email says nothing about Volkswagen indemnifying (protecting) him from any loss caused by Club Auto’s service. I have no other contract details. The applicant does not argue, and there is also no evidence, that the damage was a manufacturing defect or covered under warranty. Therefore, I find the applicant has not established any reason under contract that would make Volkswagen responsible for the repair costs.

18.   The lack of a contractual relationship does not preclude the applicant from bringing a claim in negligence (see for example, M. Hasegawa & Co. v. Pepsi Bottling Group (Canada), Co., 2002 BCCA 324). 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 did cause the claimed damages.

19.   As for Volkswagen’s duty of care, Volkswagen gave the applicant free roadside assistance through Club Auto but did not provide the roadside assistance itself. I find the applicant has not established that in giving him the free service, Volkswagen had a duty of care to ensure his vehicle would not be damaged by Club Auto’s service. I find the relationship too remote.

20.   I do not have any information about BCAA’s relationship with Club Auto, or of its contracts or oversight of the tow companies. Club Auto and Coquitlam Towing are not parties and provided no evidence in this dispute. Even if BCCA owed the applicant a duty of care, I find the applicant has not established that BCAA breached the standard of care or caused the loss. For example, there is no evidence that BCAA engaged a company that it knew or should have known was not competent or trained to tow.

21.   I find the applicant has not established on a balance of probabilities that Volkswagen or BCAA were negligent in respect of their involvement with the roadside assistance or specifically, for the tow.

22.   As mentioned, the applicant carries the burden of proof. I find the applicant has not established any basis on which Volkswagen or BCAA would be responsible for the vehicle repairs. Therefore, I dismiss the applicant’s claims against Volkswagen and BCAA.

23.   Given my conclusions above, I find it unnecessary to consider the applicant’s claimed damages he allegedly sustained during the tow.

ICBC Coverage

24.   The applicant does not point to any provision in his ICBC insurance policy that should have covered the loss. ICBC says 5.9(a)(ii) of the applicant’s Autoplan Optional Policy excludes own vehicle damage caused by mechanical fracture, failure or breakdown. I agree ICBC’s policy does not cover a vehicle’s own non-collision mechanical breakdown.

25.   If the mechanical breakdown was caused by the negligence of another driver, the applicant would need to bring an action against that other driver. This would engage the other driver’s insurance policy, if it had one, which may or may not cover the tow damage. Although the applicant says Coquitlam Towing’s driver caused the damage, he did not name Coquitlam Towing in this dispute.

26.   I find the applicant has not established that the damage was covered under his ICBC insurance policy. I dismiss the applicant’s claim against ICBC.

FEES AND EXPENSES

27.   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. I find the applicant is not entitled to reimbursement of tribunal fees or dispute-related expenses.

ORDER

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