Date Issued: December 15, 2020

File: SC-2020-005008

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Bazylak v. Guardian Risk Managers Ltd., 2020 BCCRT 1413

Between:

RYAN BAZYLAK

Applicant

And:

GUARDIAN RISK MANAGERS LTD. and
MUNDIE'S TOWING, STORAGE & SERVICE (1976) LTD.

RespondentS

INTRODUCTION

1.      This dispute is about alleged damage to a motorcycle while it was impounded. The applicant, Ryan Bazylak, had his motorcycle towed away and stored by the respondent, Mundie’s Towing, Storage & Service (1976) Ltd. (Mundie’s) following a police traffic stop that resulted in a 7-day impoundment. The respondent, Guardian Risk Managers Ltd., is Mr. Bazylak’s motorcycle insurer. Mr. Bazylak says that Mundie’s damaged the motorcycle while towing and storing it. He claims $5,000 in damages from the respondents to repaint the motorcycle and because Mundie’s allegedly overcharged him for the impoundment.

2.      Mundie’s denies damaging the motorcycle, and says that Mr. Bazylak was properly charged for the required impoundment. Guardian says that Mr. Bazylak’s insurance policy excluded the type of damage claimed. The respondents deny owing Mr. Bazylak anything.

3.      Mr. Bazylak is self-represented in this dispute. The respondents are each represented by an employee.

JURISDICTION AND PROCEDURE

4.      These are the CRT’s formal written reasons. The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA states that 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 the dispute’s parties that will likely continue after the CRT process has ended.

5.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Although the parties’ submissions each call into question the credibility of the other party in some respects, the credibility of interested witnesses cannot be determined solely by whose personal demeanour in a proceeding appears to be the most truthful. The most likely account depends on its harmony with the rest of the evidence. Further, in the decision Yas v. Pope, 2018 BCSC 282, the court recognized that oral hearings are not always needed where credibility is in issue. Keeping in mind that the CRT’s mandate includes proportional and speedy dispute resolution, I find I can fairly hear this dispute through written submissions.

6.      Section 42 of the CRTA says 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.

7.      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.

8.      In his submissions, Mr. Bazylak suggested that the “Crown” might be responsible for the claimed damages. However, no government entity or the “Crown” is named as a party to this dispute, and I cannot order remedies against non-parties.

9.      Mr. Bazylak also says that at least some of the alleged motor vehicle violations that led to the motorcycle impoundment were overturned on appeal to the BC Supreme Court. His arguments suggest, in places, that this means he should not be responsible for towing and storage. Having reviewed the evidence, I find that the alleged motor vehicle violations have little bearing on whether the respondents are responsible for alleged motorcycle damage during towing and storage, or alleged storage overcharges.

ISSUES

10.   The issues in this dispute are:

a.    Whether Mundie’s damaged Mr. Bazylak’s motorcycle or overcharged for storage, and if so, what does Mundie’s owe him, if anything?

b.    Whether Guardian owes Mr. Bazylak anything for the alleged motorcycle damage.

EVIDENCE AND ANALYSIS

11.   In a civil proceeding like this one, Mr. Bazylak, as the applicant, must prove his claims on a balance of probabilities. However, as discussed below, Mundie’s bears the burden of showing it met its duty of care for the stored motorcycle. I have read all the submitted evidence, but I refer only to the evidence I find relevant to provide context for my decision.

Did Mundie’s damage the motorcycle or overcharge for storage?

12.   The undisputed evidence is that Mr. Bazylak’s motorcycle was impounded on June 27, 2018, and Mundie’s transported the motorcycle to its lot on a flat bed truck, where it was stored for the next several days. The evidence shows that this was a so-called “7-day impoundment” ordered by the police who stopped Mr. Bazylak.

13.   Mr. Bazylak says this “7-day impoundment” means that he should not be charged for more than 7 days of motorcycle storage, but Mundie’s charged him for 9 days. Mundie’s says that its storage policy permits it to charge one day of storage fees for every full or partial day of actual storage, and that it did not overcharge Mr. Bazylak. Mundie’s says, and Mr. Bazylak agrees, that Mundie’s kept the motorcycle for one extra night with Mr. Bazylak’s permission in order to wash it. Mundie’s says it did not charge anything for this extra night of storage.

14.   An “Information for Vehicle Owners” document in evidence says that vehicle impoundment days are counted in full days, and that partial days, including the date of towing, do not count. It is not clear who gave this document to Mr. Bazylak, but the parties do not deny that it applied to the impoundment. Read in context, I infer that this document passage is about the minimum term of a 7-day impoundment, and not how a lot operator must charge an owner for actual storage time.

15.   A July 5, 2018 Mundie’s invoice in evidence confirms that Mr. Bazylak’s bike was towed on June 27, 2018. The motorcycle was to be impounded for at least 7 full days, so I find the first full day would be June 28, 2018, and the last full day would be July 4, 2018. This means Mr. Bazylak could pick up the motorcycle on July 5, 2018.

16.   I am satisfied that Mr. Bazylak retrieved the motorcycle on July 5, 2018, because that is the date of both the invoice and an attached receipt showing that the storage charges were paid that afternoon. June 27, 2018 to July 5, 2018 is a 9-day period, and I find Mr. Bazylak has not shown that Mundie’s should have charged a different amount, or for a different period. I am satisfied that Mundie’s did not charge for any additional storage, beyond 9 days, for the time it kept the motorcycle while washing it. So, I find that Mundie’s did not overcharge Mr. Bazylak for motorcycle storage, and I dismiss that aspect of Mr. Bazylak’s claim.

17.   Turning to the motorcycle storage itself, it is undisputed that Mr. Bazylak’s motorcycle was stored together with other motorcycles on a flat, outdoor, paved area adjacent to a flat dirt and gravel area. Shortly after the motorcycle was impounded, Mr. Bazylak put a cover on it. Mundie’s says that the day before Mr. Bazylak picked up the motorcycle, it removed the cover and rolled the motorcycle about 6 feet to retrieve another motorcycle behind it. Mundie’s says it did not replace the cover, and does not deny that the motorcycle was dusty the next day when Mr. Bazylak picked it up.

18.   Mr. Bazylak says the motorcycle was covered in gravel, sand, and dust from “7 days of large tow trucks driving by it on a gravel yard path,” although there is no evidence that he saw any vehicles drive past it or that it was uncovered for 7 days. There are no photos of the dirty motorcycle before me, and on balance, I find the evidence fails to show that the motorcycle cover was off for more than a day, or that a particular number of tow trucks drove past it. As noted, Mundie’s washed the motorcycle after the impoundment, and I find a photo of the washed motorcycle showed it was clean, and revealed no obvious damage. Mundie’s says, and Mr. Bazylak does not directly deny, that Mr. Bazylak was satisfied with the cleaning job.

19.   Mr. Bazylak says that the motorcycle sustained several paint chips and a faring crack while in Mundie’s possession. Mr. Bazylak says these alleged paint chips are from rocks thrown from tow truck tires while the motorcycle was stored uncovered at Mundie’s lot, and that the faring crack happened when Mundie’s moved the motorcycle.

20.   Who bears the burden of proving the motorcycle damage here? The Warehouse Receipt Act (WRA) defines a “warehouser” as a person who, for reward, receives goods for storage. I find that the motorcycle is a good, and that Mundie’s received it and stored it for reward. So, I am satisfied that Mundie’s was a warehouser of the impounded motorcycle.

21.   WRA section 13 says a warehouser, such as Mundie’s, is liable for injury to goods caused by the warehouser's failure to care for them as a careful and vigilant owner would care for similar goods in similar circumstances. The WRA imposes a reverse onus on the warehouser to prove it met this duty of care (see Kruger Products Limited v. First Choice Logistics Inc., 2010 BCSC 1242). So, given the WRA, Mundie’s bears the burden of showing that it adequately cared for the motorcycle in the circumstances.

22.   Mundie’s says that Mr. Bazylak did not complain of any faring damage when he picked up the motorcycle, and only complained of a single ¼ inch long paint scratch. Mundie’s told him it was probably an old scratch caused by the button on Mr. Bazylak’s pants, given its location and appearance. Guardian says that Mr. Bazylak did not make an insurance claim for the damage until September 2018, two months later. It is not clear when Mr. Bazylak first complained about the faring crack and other chips to Mundie’s, but I find it likely that it was no earlier than September 2018. This does not support a finding that Mr. Bazylak discovered alleged new damage immediately after the motorcycle’s impoundment.

23.   In an earlier CRT decision involving Mr. Bazylak and, I infer, the same motorcycle, Bazylak v. Guardian Risk Managers Ltd., 2020 BCCRT 1174, Mr. Bazylak confirmed that he “dropped” his motorcycle on July 28, 2018. This is less than a month after he retrieved the motorcycle from Mundie’s, and before he complained about the faring crack and the many paint chips to Mundie’s and Guardian. The previous Bazylak decision found that Mr. Bazylak dropped the motorcycle – which I infer to mean it fell over onto the ground – at a gas station at the start of a month-long road trip.

24.   I turn now to the alleged gravel kicked up by tow trucks at Mundie’s lot. I find that determining whether gravel can be kicked up by tow trucks driven in a parking lot with sufficient force to crack a motorcycle faring or cause the type of scratches and paint chips claimed, is a subject outside ordinary knowledge, and requires expert evidence (see Bergen v. Guliker, 2015 BCCA 283). As further discussed below, the applicant provided no expert evidence, including any indicating whether the claimed damage was caused by gravel from tow trucks. In addition, as noted, Mr. Bazylak did not report any of the alleged motorcycle damage, except for one paint scratch, until after he dropped the motorcycle on July 28, 2018 and took a long road trip with it. I also note that the motorcycle is a 2000 model year, making it about 18 years old at the time the claimed damage occurred.

25.   Despite its age and use, Mr. Bazylak says the motorcycle was in “showroom” condition before Mundie’s towed it and stored it. He says he had before-and-after mobile phone photos showing that the damage occurred while the motorcycle was in Mundie’s care, but that he lost his phone. I place no weight on alleged photos that are not in evidence.

26.   Mr. Bazylak did provide a few photos that he says show the allegedly undamaged condition of the motorcycle before Mundie’s towed and stored it. I find that the claimed damage as shown in later photos consists of very small paint chips and scratches, and a hairline faring crack. The allegedly pre-storage photos are of poor quality and are taken from some distance away. So, I find the claimed damage, or its absence, is not visible in the pre-storage photos. I find those photos fail to adequately show whether any damage existed before Mundie’s towed and stored the motorcycle. Also, I note that the photo file names include a date of July 15, 2018, which is after Mr. Bazylak picked up the motorcycle from Mundie’s, so it is not clear to me whether the photos were actually taken before the motorcycle impoundment.

27.   It is undisputed that after Mr. Bazylak made an insurance claim in September 2018, Guardian hired Keith Jones of Crash Space Appraisals Ltd. to estimate the value of the claimed damage to Mr. Bazylak’s motorcycle. In his November 15, 2018 inspection report, Mr. Jones said that Mr. Bazylak was “very forthright” in identifying pre-existing damage to the motorcycle that was unrelated to the alleged Mundie’s damage. Mr. Jones said that Mr. Bazylak also pointed out several “stone chips” that Mr. Bazylak felt were related to the alleged storage yard damage. Mr. Jones said it was possible that the chips were from passing vehicles in the tow yard, but he does not say how he arrived at that conclusion, nor does he say that that is what caused the motorcycle’s damage.

28.   I find that determining the cause of the motorcycle damage is a subject outside ordinary knowledge, requiring expert evidence. Mr. Jones’ qualifications are not in evidence, so I do not consider his report to be expert evidence under the CRT’s rules, and in any event he does not explain how he arrived at his conclusions. Further, having weighed the evidence, I find that Mr. Jones relied on Mr. Bazylak’s identification of the alleged Mundie’s damage in evaluating its cost to repair, as the evidence does not show that he personally determined the cause of each item of damage on the motorcycle.

29.   Mr. Bazylak provided a copy of a text message from Plum Crazy Restorations Inc. (Plum Crazy) that he says shows the cause of the motorcycle paint chips. I find the text message is not expert evidence, and does not explain the cause of the paint chips. In fact, I find the message says that it was really difficult to see “any issue” in the photos provided to Plum Crazy, which based its advice on an assumption that there were chips in areas circled in red in the photos, which Plum Crazy admittedly could not see. Plum Crazy said that Mr. Bazylak could pay to have Plum Crazy provide a more official estimate, but there is no such estimate in evidence.

30.   Further, Mr. Bazylak also does not explain how, among the many paint chips, scratches, and other minor damage to the motorcycle shown in Mr. Jones’ November 15, 2018 report photos, he was able to distinguish between the alleged damage by Mundie’s that he did not immediately report, and the other unrelated damage that he says did not happen during the impoundment. Mr. Bazylak does not directly deny identifying pre-existing motorcycle damage to Mr. Jones, and I find those identifications contradict Mr. Bazylak’s statement that the motorcycle was in “showroom” condition when it was towed in June 2018. I find this contradiction casts some doubt on Mr. Bazylak’s account of when the various paint chips and the faring crack occurred. Further, I find neither Mr. Jones’ report nor any other evidence identifies with certainty which paint chips allegedly arose during Mundie’s storage and which did not.

31.   Mr. Bazylak says Mundie’s policies required it to take photos of the motorcycle and to note its condition, but it did not. He submitted an unsigned March 24, 2016 Procedures For Impound Lot Operators document. The document appears to apply to vehicle impound lot operators, but I find the evidence fails to show whether this document applied to the motorcycle impoundment. Even if it did, the document only requires a tow truck operator to record “the condition of the vehicle, including a description of any damage”. There is no photo requirement, and I accept Mundie’s statement that it noted no major damage or flaws when accepting the bike. On balance, I find Mundie’s likely did not note small paint chips, scratches, and similar minor damage not because the bike was in perfect condition, but because it chose not to spend an unreasonable amount of time recording what it considered to be very minor, pre-existing, cosmetic flaws.

32.   Mr. Bazylak also says the Procedures document prohibited Mundie’s from moving the motorcycle, but Mundie’s did move it. The document only says that a vehicle may not be moved “to another impound lot.” There is no suggestion that the motorcycle was moved to another impound lot, so I do not find this argument persuasive.

33.   Having weighed the evidence, I find the motorcycle was not in showroom condition when Mundie’s towed it. Mundie’s says it did not drop or damage the motorcycle, which was only uncovered for one day, and that it did not see any new motorcycle damage while it was stored. On balance, I find that apart from the single scratch noted when he picked up the motorcycle, Mr. Bazylak noted no new damage until after he dropped the motorcycle and drove it a significant distance on a road trip weeks after the impoundment, among other possible driving wear-and-tear. I find that the single reported scratch was likely from wear and tear from Mr. Bazylak’s pants button prior to towing. While I accept that the motorcycle might have been dusty from being uncovered at Mundie’s, I find it was cleaned to Mr. Bazylak’s satisfaction for no extra charge.

34.   Overall, I find the evidence before me shows no new damage occurred while Mundie’s towed and stored the motorcycle. I also found above that Mundie’s did not overcharge Mr. Bazylak for impoundment fees. So, I find that Mundie’s does not owe Mr. Bazylak anything, and I dismiss the claims against Mundie’s.

Does Guardian owe Mr. Bazylak anything for the alleged motorcycle damage?

35.   In his submissions, Mr. Bazylak indicated that he was hesitant to claim anything from Guardian, as he primarily blames Mundie’s for the alleged motorcycle damage. However, Mr. Bazylak has not withdrawn his claim against Guardian. I find that claim is only about coverage for damage allegedly arising during Mundie’s towing and storage of the motorcycle. I find the question of insurance coverage for damage arising at other times is not before me in this dispute.

36.   Given my finding that the motorcycle was not damaged while in Mundie’s care, I find that Guardian is not responsible for the value of the claimed damage during its impoundment. Further, it is undisputed that the Guardian insurance policy in evidence sets out the terms of Guardian’s coverage for Mr. Bazylak’s motorcycle. I find the policy specifically says that there is no coverage of “wear and tear, marring and scratching, chipping”, which I find would exclude coverage for all paint chips and scratches, and possibly the cracked faring.

37.   I also considered whether Mr. Bazylak alleges that Guardian acted in bad faith in administering his insurance claim. I find that Mr. Bazylak does not directly disagree about which items of damage Guardian offered to cover, but disputes Guardian’s estimated cost of repairing that damage. I find that Guardian’s damage estimate was based on Mr. Jones’ in-person appraisal of the damage. I find Mr. Bazylak has provided no reliable evidence to contradict that appraisal, only Plum Crazy’s speculative text message that was based on unspecified motorcycle photos showing no noticeable damage. On balance, I find Guardian reasonably relied on Mr. Jones’ estimate. So, even if I had found that Mundie’s had caused the alleged damage and the insurance policy exclusions did not apply here, I find the evidence fails to show that Guardian acted in bad faith by basing its offered insurance payout on Mr. Jones’ estimate.

38.   I dismiss Mr. Bazylak’s claims against Guardian.

CRT FEES, EXPENSES, AND INTEREST

39.   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. Mundie’s and Guardian were successful here, but paid no CRT fees, and no party claimed any expenses. So, I make no order for CRT fee and expense reimbursement.

ORDER

40.   I dismiss Mr. Bazylak’s claims, and this dispute.