Date Issued: January 15, 2021

File: SC-2020-006177

Type: Small Claims

 

Civil Resolution Tribunal

Indexed as: Matthews v. Aggressive Auto Towing Ltd., 2021 BCCRT 52

Between:

GLENN MATTHEWS

Applicant

And:

AGGRESSIVE AUTO TOWING LTD. and INSURANCE COMPANY OF BRITISH COLUMBIA

Respondents

REASONS FOR DECISION
Tribunal Member:	Kristin Gardner

INTRODUCTION

1.      This dispute is about coverage for motor vehicle damage. The applicant, Glenn Matthews, who is also known as Terry Matthews, says that his motorhome was damaged while parked in a gated storage yard, by a tow truck owned by the respondent, Aggressive Auto Towing Ltd. (Aggressive).

2.      Mr. Matthews says the driver of the Aggressive tow truck was towing and attempting to park a trailer when it struck the front of his motorhome. He says the tow truck driver failed to report the accident or take any responsibility for the damage to his motorhome.

3.      The respondent insurer, Insurance Corporation of British Columbia (ICBC), insures both Mr. Matthews and Aggressive. Mr. Matthews says that ICBC failed to properly investigate the accident or cover his vehicle damage. Mr. Matthews claims $865.50 for his vehicle damage.

4.      ICBC says that Mr. Matthews failed to provide the license plate or any evidence that the Aggressive tow truck caused the damage to Mr. Matthews’ vehicle. Further, in the absence of evidence to prove Aggressive is responsible for his vehicle damage, ICBC says Mr. Matthews does not have access to hit and run coverage for the alleged damage because it happened at a secure storage facility.

5.      Mr. Matthews is self-represented. Aggressive and ICBC are both represented by an ICBC employee.

JURISDICTION AND PROCEDURE

6.      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). 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.

7.      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. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me, and I find that there are no significant issues of credibility or other reasons that might require an oral hearing. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice.

8.      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.

9.      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.

ISSUES

10.   The issues in this dispute are:

a.    Did ICBC breach its statutory obligations or contract of insurance in investigating the accident, and if so, what is the appropriate remedy?

b.    Is Aggressive liable for the accident, and if so, what is the appropriate remedy?

c.    If Aggressive is not liable for the accident, is Mr. Matthews entitled to coverage from ICBC for a hit and run accident?

EVIDENCE AND ANALYSIS

11.   In a civil proceeding like this one, the applicant Mr. Matthews must prove his claims on a balance of probabilities. I note that Aggressive’s Dispute Response was filed by ICBC and Aggressive did not make any of its own submissions or file any evidence on its own behalf. While I have read all of the parties’ evidence and submissions, I have only addressed the evidence and arguments to the extent necessary to explain my decision.

12.   The background facts are undisputed. Mr. Matthews had his motorhome parked in a secure, gated storage yard owned by a third party. Mr. Matthews says he had been away and returned sometime in February 2019 to discover a message from the storage yard, advising him that an Aggressive tow truck had struck his motorhome on January 30, 2019 when attempting to park a trailer next to it. Mr. Matthews was advised one of the storage yard employees, RM, had witnessed the accident.

13.   Mr. Matthews filed a damage claim with ICBC and provided RM’s contact information. Mr. Matthews was unable to obtain the Aggressive tow truck’s license plate number. ICBC says that it was unsuccessful in contacting RM until after this dispute was started, despite several attempts. ICBC also says that Mr. Matthews did not provide enough evidence to prove the Aggressive tow truck caused his vehicle damage.

14.   Further, although Mr. Matthews says ICBC initially told him that he could make a hit and run claim, subject to paying a $750 deductible, ICBC now says Mr. Matthews is ineligible for hit and run coverage under the Insurance (Vehicle) Act, because the accident happened in a private, gated storage lot.

Did ICBC breach its statutory obligations in investigating the accident?

15.   Mr. Matthews argues that he provided ICBC with enough evidence to prove that Aggressive was responsible for the damage to his vehicle. He says ICBC did not sufficiently investigate the accident, by failing to follow up with potential witnesses. He also says ICBC gave him incorrect and misleading information during its investigation, and then unfairly accused him of harassing Aggressive when he attempted to satisfy ICBC’s request for information.

 

16.   To succeed in his claim against ICBC, Mr. Matthews must prove on a balance of probabilities that ICBC breached its statutory obligations or its contract of insurance, or both. The issue is whether ICBC acted “properly or reasonably” in administrating Mr. Matthews’ insurance claim for the accident: see Singh v. McHatten, 2012 BCCA 286 referring to Innes v. Bui, 2010 BCCA 322.

17.   ICBC owes Mr. Matthews a duty of good faith, which requires ICBC to act fairly, both in how it investigates and assesses the claim and as to its decision about whether to pay the claim: see Bhasin v. Hrynew, 2014 SCC 71 at paragraphs 33, 55, and 93. As noted in the Continuing Legal Education Society of BC’s ‘BC Motor Vehicle Accident Claims Practice Manual’, an insurer is not expected to investigate a claim with the skill and forensic proficiency of a detective. An insurer must bring “reasonable diligence, fairness, an appropriate level of skill, thoroughness, and objectivity to the investigation and the assessment of the collected information”: see McDonald v. insurance Corp. of British Columbia, 2012 BCSC 283.

18.   Mr. Matthews filed a document in evidence that is a collection of cut and pasted emails between him and ICBC. While some of the emails appear to be complete reproductions, others appear to be excerpts. ICBC filed only 3 of Mr. Matthews’ emails to ICBC as evidence. ICBC did not explain why it did not file complete copies of its emails with Mr. Matthews. In any event, ICBC raised no objection to Mr. Matthews’ email reproductions, so I accept that they accurately represent the email correspondence between Mr. Matthews and ICBC during its investigation.

19.   From the email evidence, I find ICBC told Mr. Matthews on March 29, 2019 that his vehicle repair estimate was complete, and he could get his vehicle fixed after paying a $750 deductible. I infer from the evidence that the $750 deductible applied because it was considered a hit and run claim. Mr. Matthews responded that it was his understanding the hit and run designation only applied subject to ICBC reviewing the witness information and confirming Aggressive was responsible.

20.   As noted above, Mr. Matthews claims that ICBC did not properly follow up with potential witnesses about Aggressive’s responsibility.

21.   ICBC’s claim file notes in evidence show that it left messages for RM on February 25 and 27, 2019. The notes show that RM called ICBC on March 13, 2019 and provided her work number, and that she was provided the name and phone number for the handling adjuster. However, I find there is no evidence that RM was told to call the adjuster back. I find ICBC made a final attempt to contact RM on July 11, 2019 at the original phone number provided, but it was unable to leave a message. The note stated it was ICBC’s fifth attempt to call RM, but does not set out the details of the other attempts. I find that after this dispute was started approximately 18 months after the accident, ICBC also called the storage yard to locate RM, but was advised that RM no longer worked there.

22.   I find that Mr. Matthews advised ICBC on May 7, 2019 that he was having RM’s statement “notarized”. It is undisputed that Mr. Matthews did not provide a copy of the statement to ICBC until after this dispute was started, and then sent ICBC only an unsigned copy.

23.   Mr. Matthews filed RM’s signed May 8, 2019 statement in evidence. It stated that on January 30, 2019, RM observed the Aggressive tow truck reverse while attempting to park the attached trailer, and the trailer struck the hood of Mr. Matthews’ motorhome. She said the driver ultimately gave up on parking the trailer and left the storage facility with the trailer still attached. She said the driver requested that she not report the incident, but that she called Mr. Matthews anyway and documented the incident on the storage facility’s computer. She said when she contacted ICBC, she was advised that if ICBC needed any information they would contact her, but that ICBC did not get any details of the incident from her.

24.   I find that RM’s statement was available for ICBC to request from either Mr. Matthews or from the storage yard, as the statement suggests RM prepared and saved her statement on the storage facility’s computer. There is no evidence before me that ICBC made any such requests before this dispute was started.

25.   I find the email correspondence shows that ICBC told Mr. Matthews several times that without the license plate number of the Aggressive truck alleged to have hit Mr. Matthews’ motorhome, his claim would be considered a hit and run.

26.   Mr. Matthews sent ICBC 3 screen shots from the storage yard CCTV footage that he obtained, showing an Aggressive tow truck arriving at the storage yard on January 30, 2019, towing a large trailer and leaving the storage yard about 25 minutes later, still with the trailer attached. It is undisputed that the truck’s license plate is not visible on the CCTV footage. Mr. Matthews suggested in his email that ICBC could likely obtain the required plate information more quickly, if it contacted Aggressive.

27.   ICBC responded that because the license plate was not visible in the CCTV photos, it could not access any third-party liability insurance to cover Mr. Matthews’ vehicle damage. There is no evidence before me that ICBC attempted to call Aggressive before this dispute was started.

28.   Mr. Matthews says that given ICBC’s advice that it required the license plate number, he attended Aggressive’s yard and parked across from its lot for several days in an unsuccessful attempt to identify the offending tow truck. In a June 10, 2019 email, ICBC told Mr. Matthews that he has a hit and run claim, and he has to stop harassing Aggressive. There is no evidence before me that ICBC continued its investigation after this email, other than its final unsuccessful attempt to call RM on July 11, 2019.

29.   The evidence shows that after this dispute was started, ICBC provided Aggressive with the CCTV photos, and Aggressive was able to identify the tow truck’s license plate number and the truck driver’s name. While Aggressive said it had no record of an accident that day, it also said the driver no longer worked for Aggressive. There is no evidence before me that ICBC made any further attempt to locate the driver to obtain a statement from him.

30.   While ICBC does not have to investigate claims with the proficiency of a detective, I find ICBC’s investigation in this case lacked a reasonable degree of diligence and thoroughness. I find ICBC likely could have made better efforts to contact RM and obtain her statement, as well as any other evidence the storage yard may have had about the incident. I also find had ICBC not waited 18 months to contact Aggressive, it may have been able to obtain a statement from the truck’s driver about his version of the incident. Instead, I find ICBC left the entirety of the investigation up to Mr. Matthews, and then complained about the way he went about it. It seems once this dispute was started, and ICBC made some further inquiries, it was able to obtain relevant information relatively easily.

31.   Nevertheless, in the end I find nothing ultimately turns on the quality of ICBC’s investigation in this matter. I say this because I find below that Aggressive is liable for the accident. So, I find the appropriate remedy is to order Aggressive to pay Mr. Matthews’ claimed damages. Therefore, I find it is unnecessary to order ICBC to pay any damages, and I dismiss Mr. Matthews’ claims against ICBC.

32.   I turn now to Aggressive’s responsibility for the accident.

Is Aggressive liable for the accident?

33.   For the following reasons, I find Aggressive is liable for the accident and must pay for the damage to Mr. Matthews’ motorhome.

34.   I find the CCTV still images of the Aggressive tow truck arriving and then leaving the storage facility 25 minutes later with a trailer still attached, are consistent with RM’s statement that the driver had difficulty parking the trailer and abandoned his efforts. I do not accept ICBC’s submission that because of delays in obtaining RM’s statement or that because Mr. Matthews and RM directly communicated after the accident, RM’s evidence is not reliable. I find RM documented her statement about the accident circumstances shortly after it occurred and just because ICBC did not receive a copy of it, does not make it unreliable. Further, I find there is no evidence that Mr. Matthews communicated with RM for any reason other than to request that she call ICBC to provide her statement, or that Mr. Matthews influenced the content of RM’s statement in any way.

35.   The evidence shows that RM called ICBC after the CRT facilitation phase, and ICBC’s notes of that conversation were filed in evidence. The notes show that what RM told ICBC on the phone is consistent with her May 8, 2019 signed statement that she saw the Aggressive tow truck reverse and the trailer collide with Mr. Matthews’ motorhome.

36.   Further, I find that Aggressive admitted to ICBC that it owned the truck in the CCTV photos and provided ICBC with the truck’s license plate and the name of the tow truck’s driver at the time of the incident. While Aggressive told ICBC that it did not have any record of an accident occurring at the storage yard, I accept RM’s statement that she observed the Aggressive tow truck reverse and the trailer hit Mr. Matthews’ motorhome, causing damage to its hood and front grill, and then leave the scene. Therefore, I find that Aggressive is responsible for the damage to Mr. Matthews’ motorhome.

37.   Mr. Matthews submits that the estimate to repair his motorhome totaled $865.50, though no party filed a copy of the estimate in evidence. However, given the respondents do not particularly dispute the claimed estimate amount, I allow Mr. Matthews’ claim for $865.50, payable by Aggressive.

38.   Because I have found Aggressive liable for the accident, I do not have to consider whether Mr. Matthews is entitled to coverage for a hit and run accident.

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. Mr. Matthews was successful against Aggressive, so is entitled to reimbursement of the $125 he paid in CRT fees. No party claimed any dispute-related expenses.

40.   Mr. Matthews did not claim interest on the damages owing. In any event, I find he is not entitled to pre-judgement interest under the Court Order Interest Act. The evidence does not show that he has repaired his motorhome or that he has paid or owes anything for his vehicle repairs.

ORDERS

41.   Within 30 days of the date of this decision, I order Aggressive to pay Mr. Matthews a total of $990.50, broken down as follows:

a.    $865.50 in damages for vehicle repairs, and

b.    $125 in CRT fees.

42.   Mr. Matthews is entitled to post-judgment interest under the Court Order Interest Act, as applicable.

43.   I dismiss Mr. Matthews’ claims against ICBC.

44.   Under section 48 of the CRTA, the CRT 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 CRT’s final decision. The Province of British Columbia has enacted a provision under the COVID-19 Related Measures Act which says that statutory decision makers, like the CRT, may waive, extend or suspend mandatory time periods. This provision is expected to be in effect until 90 days after the state of emergency declared on March 18, 2020 ends, but the Province may shorten or extend the 90-day timeline at any time. A party should contact the CRT as soon as possible if they want to ask the CRT to consider waiving, suspending or extending the mandatory time to file a Notice of Objection to a small claims dispute.

 

45.   Under section 58.1 of the CRTA, a validated copy of the CRT’s order can be enforced through the Provincial Court of British Columbia. A CRT 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 CRT order has the same force and effect as an order of the Provincial Court of British Columbia.