Date Issued: February 1, 2021

File: SC-2019-010163

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Calabria Concrete Contractors Ltd. v. ICBC, 2021 BCCRT 126

Between:

CALABRIA CONCRETE CONTRACTORS LTD.

Applicant

And:

INSURANCE CORPORATION OF BRITISH COLUMBIA and
RYAN MICHAEL SOROKA

Respondents

INTRODUCTION

1.      This small claims dispute is about responsibility for vehicle damage.

2.      The applicant, Calabria Concrete Contractors Ltd. (Calabria), says that one of its employees, the respondent, Ryan Michael Soroka, failed to properly secure a company truck when he parked it, so it rolled into 3 other cars, causing them damage. Mr. Soroka did not have a valid driver’s license at the time of the accident.

3.      The respondent insurer, Insurance Corporation of British Columbia (ICBC), insures Calabria’s truck and the damaged vehicles. ICBC says it found Calabria had breached section 37.92 of the Motor Vehicle Act Regulations (MVAR), which required Calabria to ensure its drivers had a valid license. So, ICBC says both Calabria and Mr. Soroka were in breach of the truck’s insurance policy, and they are jointly and severally liable for the costs to repair the damaged vehicles.

4.      Calabria says that it owes ICBC over $8,000 for its half of the assessed vehicle damage. Calabria argues that Mr. Soroka should be held more responsible because he lied about his driver’s license validity. Calabria seeks an order that Mr. Soroka pay $5,000 towards Calabria’s portion of the vehicle damage.

5.      ICBC denies liability and says because both Calabria and Mr. Soroka were parties to the breach, it does not typically assign more of the debt to one party. Mr. Soroka denies that he should have to pay more than Calabria. He says the accident happened because Calabria did not perform safety inspections for the truck and the hand brake failed.

6.      Calabria is represented by its owner, Joe Esposito. ICBC is represented by an employee. Mr. Soroka is self-represented.

JURISDICTION AND PROCEDURE

7.      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.

8.      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.

9.      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.

10.   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

11.   The issues in this dispute are:

a.    Whether Mr. Soroka should have to pay ICBC more than Calabria for vehicle repairs resulting from the accident, and if so, how much more?

b.    Whether Mr. Soroka fraudulently misrepresented the status of his driver’s license such that Calabria is entitled to damages?

EVIDENCE AND ANALYSIS

12.   In a civil proceeding like this one, as the applicant, Calabria must prove its claims on a balance of probabilities. While I have read all of the parties’ evidence and submissions, I have only addressed them to the extent necessary to explain my decision. I note that both Calabria and Mr. Soroka chose not to file any evidence in this dispute, despite having the opportunity to do so.

13.   The underlying facts are not in dispute. On January 23, 2019, Mr. Soroka was driving one of Calabria’s trucks for work purposes. Mr. Soroka parked the truck and was no longer inside the vehicle when it rolled into 3 parked cars in its path. It is undisputed that Mr. Soroka did not have a valid driver’s license at the time of the incident, which was a breach of the truck’s insurance policy.

14.   ICBC says that Calabria was also in breach of the insurance policy because Calabria did not comply with section 37.29 of the MVAR. This regulation states that an owner of a commercial motor vehicle (here, Calabria) must get a transcript of the driving record of each driver employed, on the driver’s date of employment and each year from the date of the previous transcript.

15.   Calabria hired Mr. Soroka in August 2017. It says that it obtained Mr. Soroka’s driver’s abstract at that time, and the abstract was clear. It is undisputed that Mr. Soroka’s driver’s license was later cancelled in November 2017, and that he did not inform Calabria that it had been cancelled. Calabria says it renewed the truck’s insurance in May 2018, and Mr. Soroka assured it then that his license was in good standing. However, under section 37.29 of the MVAR, Calabria was obligated to update Mr. Soroka’s driver’s abstract in August 2018. ICBC says if it had done so, Calabria would have known Mr. Soroka’s driver’s license was cancelled before the accident.

16.   ICBC says Calabria’s insurance policy was found 100% liable for the damage to the other parked vehicles. I find that whether the cause of the accident was driver negligence or truck malfunction is irrelevant under the circumstances, because either way Mr. Soroka was driving without a valid license, so the issue is about compliance with the MVAR. ICBC says because both the owner and the driver of the truck are in breach of the insurance policy, there is no coverage, and the driver and owner are jointly and severally liable for the resulting damages.

17.   I note that Calabria does not dispute that it failed to comply with section 37.29 of the MVAR or that this failure was a breach of its insurance policy. I also note that Calabria does not make any allegations against ICBC. Specifically, Calabria does not claim that ICBC breached its statutory obligations or its contract of insurance with Calabria. Essentially, Calabria argues that because Mr. Soroka lied about his license being in good standing, Mr. Soroka’s breach is more blameworthy and he should have to pay more. However, neither ICBC’s statutory obligations nor its contract of insurance with Calabria require it to consider moral blameworthiness for a breach as a factor in assigning and apportioning debts when both parties are in breach of a policy.

18.   Further, I find that the CRT does not have jurisdiction to order ICBC to re-apportion the debt between Calabria and Mr. Soroka. Ordering someone to do something, or to stop doing something, is known as “injunctive relief”. Injunctive relief is outside the CRT’s small claims jurisdiction, except where section 118 of the CRTA permits it. I find that ordering ICBC to assign more of the outstanding debt to Mr. Soroka amounts to injunctive relief, which falls outside the CRT’s jurisdiction. Given these findings, I dismiss Calabria’s claims against ICBC.

19.   So, what about Calabria’s claims against Mr. Soroka? As with injunctive relief, the CRT does not have jurisdiction under section 118 of the CRTA to order “declaratory relief”. For example, the CRT cannot make an order declaring that Mr. Soroka is fully responsible for the ICBC debt or that Calabria does not have to pay all or some of the debt. However, that does not mean there is not some other legal basis on which Mr. Soroka may have to pay Calabria up to the $5,000 claimed.

20.   Again, Calabria argues that Mr. Soroka allegedly lied to it about his license being in good standing. So, although Calabria did not frame its claim as such, I have considered whether Mr. Soroka’s alleged lie constitutes civil fraud (also called the tort of deceit or fraudulent misrepresentation).

21.   The 4 elements of civil fraud were set out by the Supreme Court of Canada in Bruno Applicant and Furniture, Inc. v. Hryniak, 2014 SCC 8, at paragraph 21. To be successful, Calabria must establish:

a.    Mr. Soroka made a false representation,

b.    Mr. Soroka had some level of knowledge that the representation was false (whether actual knowledge or recklessness),

c.    The false representation caused Calabria to act, and

d.    Calabria’s actions resulted in a loss.

22.   Calabria submits that Mr. Soroka specifically provided assurance that his license was in good standing when Calabria renewed the truck’s insurance policy in May 2018. Based on the evidence of the parties’ interactions and the context of their submissions, I find it is unlikely Mr. Soroka explicitly told Calabria he had a valid license, and find it is more likely that Mr. Soroka simply omitted to advise Calabria that his license had been cancelled. Nevertheless, noting that Mr. Soroka did not specifically deny making such a representation, for the purpose of this analysis I will assume that Mr. Soroka knowingly made a false representation that he had a valid license. I also find that this false representation caused Calabria to act by listing Mr. Soroka as the principle operator of the truck and permitting him to drive it.

23.   The question, then, is whether it was Calabria’s actions on the false representation that caused its loss. I accept that if Mr. Soroka had not falsely represented the status of his license, Calabria likely would not have allowed him to drive its truck. However, I find that if Calabria had complied with its statutory obligations to obtain Mr. Soroka’s updated driver’s abstract, it would have discovered Mr. Soroka’s cancelled license regardless of his false representation. In other words, I find Calabria’s loss was caused by its own breach of the insurance policy, for failing to comply with section 37.29 of the MVAR. Therefore, I find Calabria has not proven each element of civil fraud. So, I dismiss Calabria’s claim against Mr. Soroka.

24.   Given my conclusions about liability, I find I do not have to address whether Calabria has proved its damages claim.

25.   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. Calabria was unsuccessful and so I dismiss its claim for CRT fees. Neither respondent paid any fees nor claimed any dispute-related expenses, so I make no order.

ORDER

26.   I order Calabria’s claims, and this dispute, dismissed.