Date Issued: February 1, 2021

File: SC-2020-005807

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Ivanisko v. KSK Automotive Holdings Ltd., 2021 BCCRT 123

BETWEEN:

NATALIE IVANISKO

APPLICANT

AND:

KSK AUTOMOTIVE HOLDINGS LTD. dba CASTLEGAR HYUNDAI, DARRYL STROBEL, and INSURANCE CORPORATION OF BRITISH COLUMBIA

RESPONDENTS

INTRODUCTION

1.      This dispute is about vehicle damage.

2.      The applicant, Natalie Ivanisko, took her 2010 Hyundai Genesis with a manual transmission to the respondent repair shop, KSK Automotive Holdings Ltd. dba Castlegar Hyundai (Castlegar Hyundai), to repair a malfunctioning parking brake. Ms. Ivanisko says while there, Castlegar Hyundai’s employee, the respondent Darryl Strobel, negligently started the car while outside her vehicle and it jumped forward, into a cable fence and another vehicle, causing damage. Ms. Ivanisko seeks $5,000 to pay for the repairs to her vehicle.

3.      The respondent insurer, Insurance Corporation of British Columbia, provides “garage policy” insurance to Castlegar Hyundai. Although initially stating it was not a proper party to the claim, ICBC now argues that the incident was a due to a mechanical failure, and is not covered under the garage policy.

4.      Mr. Strobel says he followed all reasonable procedures and he and Castlegar Hyundai say they were not negligent. They deny owing Ms. Ivanisko any money.

5.      Ms. Ivanisko and Mr. Strobel are each self-represented. Castlegar Hyundai 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 parties to a dispute that will likely continue after the dispute resolution process has ended.

7.      Section 39 of the CRTA says that 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. 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.

8.      Section 42 of the CRTA says that 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.      In resolving this dispute the CRT may make one or more of the following orders, where permitted by 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 CRT considers appropriate.

Apology

10.   In her submissions, Ms. Ivanisko asked for a written apology from Mr. Strobel and Castlegar Hyundai for what she says were false and hurtful statements. The CRT does not generally order apologies because forced apologies are not productive or helpful, and I agree. I decline to order Mr. Strobel or Castlegar Hyundai to apologize to Ms. Ivanisko.

ISSUE

11.   The issue in this dispute is whether Ms. Ivanisko is entitled to compensation for vehicle damage and, if so, from who.

EVIDENCE AND ANALYSIS

12.   In a civil claim such as this, the applicant Ms. Ivanisko bears the burden of proof on a balance of probabilities. 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.

13.   The circumstances of the incident are not in dispute. On June 22, 2020, Ms. Ivanisko brought her Genesis into Castlegar Hyundai because a previous service (at a different Hyundai dealership out of town) advised her that her emergency/parking brake was not holding. It is undisputed Ms. Ivanisko notified Castlegar Hyundai when she initially made the June 22, 2020 appointment that the reason for the appointment was due to a malfunctioning parking brake. When Ms. Ivanisko attended at Castlegar Hyundai that morning, she handed her key fob to Mr. Strobel, Castlegar Hyundai’s Service Manager. Mr. Strobel says he went to the vehicle to check the mileage, and while standing outside of the vehicle, pressed the ignition button. Mr. Strobel says, to his surprise, the vehicle lurched forward and struck a cable fence and another parked vehicle. It is undisputed that Ms. Ivanisko was inside the building and not present for the incident.

14.   Ms. Ivanisko seeks reimbursement for the damage to her vehicle. She submitted a $4,838.43 repair quote from Maaco Collision Repair. Ms. Ivanisko does not explain why she claims $5,000. In any event, Ms. Ivanisko says Mr. Strobel and/or Castlegar Hyundai are responsible for the damage, and should pay for the repairs. She says Castlegar Hyundai’s insurance contract with ICBC related to indemnification for that damage is unrelated to her claim, and I agree. Ms. Ivanisko does not make any specific allegations against ICBC. As a result, I dismiss Ms. Ivanisko’s claims against ICBC.

15.   Additionally, I dismiss Ms. Ivanisko’s claims against Mr. Strobel personally. Under common law, an employer is generally liable for the actions of employees committed in the course of their employment. This is known as “vicarious liability” and it generally means if Mr. Strobel was negligent in operating Ms. Ivanisko’s vehicle, Castlegar Hyundai as his employer would be responsible for any damages. In this dispute, there is no allegation Mr. Strobel was not acting in the usual course of his employment. I find at all times Mr. Strobel was acting on behalf of Castlegar Hyundai. For these reasons, I dismiss Ms. Ivanisko’s claims against Mr. Strobel in his personal capacity.

16.   I turn then to the claims against Castlegar Hyundai.

17.   The respondents deny that Mr. Strobel was negligent, arguing it was Ms. Ivanisko who failed to notify Castlegar Hyundai that there was an issue with the starter of her Genesis that would result in the car lurching forward. Ms. Ivanisko says there was no indication that lurching was a problem, and that Castlegar Hyundai was aware the reason she was there was due to a parking brake malfunction, which is not disputed.

18.   Ms. Ivanisko submitted several pre-June 22, 2020 service records for her Genesis, including August 27, 2019, September 12, 2019 and October 22, 2019. None of these service records indicate any issue with the Genesis’s ignition. Only the October 22, 2019 records state that “ebrake does not hold”, which is undisputedly the reason Ms. Ivanisko gave when she booked the June 22, 2020 appointment at Castlegar Hyundai. Ms. Ivanisko explains she has a separate winter vehicle, and due to COVID-19, she did not take the Genesis to have the emergency brake fixed until June 2020, when COVID-19 restrictions somewhat lifted. Based on the evidence, I find there is no indication that Ms. Ivanisko failed to notify Castlegar Hyundai of any known mechanical issue with the Genesis.

19.   As noted above, the incident occurred when Mr. Strobel pushed the ignition “start” button in an attempt to light up the dashboard to view the vehicle’s mileage, while he was standing outside the vehicle. Ms. Ivanisko submits it was negligent of Mr. Strobel to attempt to start the vehicle while not in proper care and control of it, as required by the owner’s manual. Ms. Ivanisko says Mr. Strobel and Castlegar Hyundai should have known the risks of a vehicle with a malfunctioning parking brake, and therefore acted negligently.

20.   In contrast, the respondents say the incident occurred as a result of a mechanical failure and that Mr. Strobel followed “standard procedures for vehicle intake”. Notably, the respondents did not provide a copy of any documentation relating to Castlegar Hyundai’s vehicle intake policies or procedures. Therefore, I am unable to determine whether Mr. Strobel did, in fact, reasonably comply with any applicable procedures, or whether Castlegar Hyundai’s procedures were, in fact, reasonable.

21.   Based on the evidence before me, I find that Mr. Strobel did not act reasonably when attempting to turn on the Genesis while not safely seated in the car. Although the respondents argue that merely pressing the ignition button should not start the car without having the clutch depressed, I find that Mr. Strobel and Castlegar Hyundai knew, or ought to have known, that the vehicle’s parking brake was not working. Further, the Genesis’s owner’s manual contains a warning which states “[v]ehicles not fully engaged in park with the parking brake set are at risk for moving inadvertently and injuring yourself or others”.

22.   I find that given it was known the vehicle’s parking brake was not functioning, it was negligent of Mr. Strobel to attempt to turn on the vehicle while standing outside it, even though he did not intend to move the car, since he would not be able to control the vehicle’s movements. As his employer, I find Castlegar Hyundai is vicariously liable for Mr. Strobel’s negligence.

23.   As noted above, Ms. Ivanisko provided an estimate of $4,838.43 to repair her vehicle, and I find Castlegar Hyundai must pay her this amount. Ms. Ivanisko has not yet paid for these repairs, so I find she is not entitled to pre-judgment interest under the Court Order Interest Act.

24.   ICBC argues that the damages are excluded under Castlegar Hyundai’s garage policy. However, as noted above, I find this is an issue between Castlegar Hyundai and ICBC as insured and insurer, and is not before me in this decision. I make no findings about whether Castlegar Hyundai is entitled to indemnification from ICBC under its insurance policy.

25.   Under section 49 of the CRTA, and the CRT rules, a successful party is generally entitled to the recovery of their tribunal fees and dispute-related expenses. I see no reason to deviate from that general rule. As Ms. Ivanisko was successful, I find that she is entitled to reimbursement of her $175 in paid tribunal fees. No dispute-related expenses were claimed.

ORDERS

26.   Within 30 days of the date of this decision, I order the respondent, KSK Automotive Holdings Ltd. dba Castlegar Hyundai, to pay the applicant, Natalie Ivanisko, a total of $5,013.43, broken down as follows:

a.    $4,838.43 in debt for vehicle damage, and

b.    $175 in tribunal fees.

27.   Ms. Ivanisko is also entitled to post-judgment interest, as applicable.

28.   Ms. Ivanisko’s claims against the respondent, Darryl Strobel, and the respondent insurer, Insurance Corporation of British Columbia, are dismissed.

29.   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.

30.   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.