Date Issued: September 23, 2020

File: SC-2020-003254

Type: Small Claims

Civil Resolution Tribunal

Indexed as: McAndless v. Plan A Real Estate Services Ltd., 2020 BCCRT 1073

Between:

JOHN MCANDLESS also known as BLAKE MCANDLESS

Applicant

And:

PLAN A REAL ESTATE SERVICES LTD.

Respondent

INTRODUCTION

1.      This small claims dispute is about the theft of an electric motorbike from a leased parking stall.

2.      The applicant, John McAndless also known as Blake McAndless, rented a secure indoor motor cycle parking stall from the respondent, Plan A Real Estate Services Ltd. (Plan A). He parked his electric motorbike in his stall. One morning, Mr. McAndless noticed that the garage gate had been vandalized. He says he notified Plan A that one of the gate’s bars had been cut. The next day, he discovered that his electric motorbike (bike) had been stolen. Mr. McAndless claims $2,415.70, based on $1,500 for the bike and $915.70 in associated damages.

3.      Plan A denies any negligence and says it contacted the gate repair company in a timely way. Plan A denies being responsible for the stolen bike, pointing out that the lease agreement made Mr. McAndless responsible for obtaining insurance. Plan A asks me to dismiss the dispute.

4.      Mr. McAndless represents himself. Plan A is represented by business contact KH.

JURISDICTION AND PROCEDURE

5.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). The CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT 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 CRT 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 CRT 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 CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

8.      Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

ISSUE

9.      The issue in this dispute is whether Plan A is responsible to compensate Mr. McAndless for the theft of his bike and related items from the leased parkade stall.

EVIDENCE AND ANALYSIS

10.   In this civil claim, Mr. McAndless bears the burden of proof on a balance of probabilities. I have reviewed the evidence and submissions but refer to them only as I find necessary to explain my decision.

11.   The following facts are undisputed:

a.    In fall 2019, Plan A advertised on Craigslist offering the lease of an “undercover stall” “not gated” for $50 per month.

b.    Starting November 25, 2019, Mr. McAndless rented the stall from Plan A under a written lease agreement (Agreement).

c.    The Agreement signed by the parties includes a term that Plan A would not insure Mr. McAndless’ vehicle or personal property, and that Mr. McAndless was required to purchase insurance.

d.    On January 10, 2020, Mr. McAndless went to get his bike, but noticed the lock on it had been vandalized.

e.    Based on the text messages provided Mr. McAndless notified Plan A of the vandalism on January 10, 2020.

f.     Because the lock cord and keyhole on the cord had been damaged, Mr. McAndless he could not use his key to remove his bike at that time.

g.    Upon leaving the parkade to find a cab Mr. McAndless noticed that the gate separating the outside from the parkade had also been damaged. Mr. McAndless took a photograph of the damaged gate bars and texted it to Plan A at around 2:30 p.m. that afternoon.

h.    Mr. McAndless took a cab to work and did not return to the parkade until the next morning.

i.      On the morning of January 11, 2020, Mr. McAndless borrowed lock cutters and attended at the parkade to remove the damaged lock and take his bike. When he arrived, Mr. McAndless discovered that his bike had been stolen. The parkade gate had not been repaired.

12.   To establish a claim in negligence Mr. McAndless must prove that Plan A failed to meet the expected standard of care of a reasonable lessor renting out a parking stall, that the loss was reasonably foreseeable, and that the failure caused the claimed loss. That is, Mr. McAndless must prove some action or inaction by Plan A was less than the expected standard, and that the failure caused the bike theft.

13.   Mr. McAndless did not provide evidence that it was reasonable to require Plan A to repair the parkade gate in less than 24 hours from his report of vandalism or to take some other interim security measure. As well, I find that Mr. McAndless understood that there was some risk associated with leaving his bike in the parkade unattended. The assumption of risk is evidenced by his written agreement to be responsible to insure it against loss or damage: see Campbell (c.o.b. Soup’s Welding) v. 0690900 BC Ltd., [2010] B.C.J. No. 1366 (BCPC) at paragraph 51.

14.   On January 10, 2002, Mr. McAndless also knew that his personal lock on the bicycle had been tampered with, and that the parkade gate was no longer secure. Despite that knowledge, Mr. McAndless decided to leave his bike there for the rest of the day and overnight. His text messages to Plan A show that he was aware that someone had likely broken into the parkade through the damaged gate, before he decided to leave his bike there overnight. Mr. McAndless could have opted to attend with a lock cutter immediately to secure his bike, but he decided not to. For these reasons, I also find that Mr. McAndless failed to prove that any failure by Plan A to meet a reasonable standard caused his loss.

15.   I have also considered the Occupiers Liability Act (OLA). Section 3 of the OLA says that a respondent has a duty to take reasonable care that an applicant’s property on its premises will be “reasonably safe”, except where the applicant willingly assumes a risk to that property. Where the applicant willingly assumes a risk to their property, the OLA limits the respondent’s liability to a duty not to “create a danger with intent to harm” the property, or to act with reckless disregard to its integrity.

16.   I find that Mr. McAndless willingly assumed the risk that his bike might be stolen, by leaving it unattended, with a damaged lock, overnight in the parkade while he knew the gate was in a state of disrepair.

17.   The evidence does not prove that Plan A either created a danger to the bike or acted with reckless disregard to it.

18.   While Mr. McAndless is understandably upset by the theft, I find that Plan A does not bear legal responsibility for it either in negligence or under the OLA. Given my decision that Plan A is not liable, I find it unnecessary to further consider Mr. McAndless’ specific damages claims.

19.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. Plan A did not claim tribunal fees or dispute-related expenses, so I make no order for them.

ORDER

20.   I dismiss Mr. McAndless’ claims and this dispute.