Date Issued: November 3, 2021

File: SC-2021-003607

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Everite Investments Ltd. v. All roads Construction Ltd., 2021 BCCRT 1165

Between:

EVERITE INVESTMENTS LTD.

Applicant

And:

ALL ROADS CONSTRUCTION LTD. and CITY OF ABBOTSFORD

RespondentS

INTRODUCTION

1.      This dispute is about sidewalk damage and road repair work. The applicant, Everite Investments Ltd. (Everite), says the respondent All Roads Construction Ltd. (All Roads) negligently damaged Everite’s newly poured sidewalk while doing roadwork for the respondent municipality, City of Abbotsford (City). Everite claims $2,500 to replace its damaged sidewalk.

2.      All Roads did not file a Dispute Response as required, and so is in default. The City says it hired All Roads as an independent contractor and so the City is not responsible for Everite’s claimed damages.

3.      Everite is represented by its president, William Bartleman. The City is represented by an employee.

JURISDICTION AND PROCEDURE

4.      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.

5.      CRTA section 39 says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find I can fairly hear this dispute based on the submitted evidence and through written submissions.

6.      Under CRTA section 42, 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 CRTA section 118, in resolving this dispute the CRT may: order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the CRT considers appropriate.

ISSUE

8.      The issue is whether All Roads was negligent in its road paving work and damaged Everite’s sidewalk, and if so, whether either All Roads or the City are liable for Everite’s claimed $2,500 in sidewalk replacement damages.

EVIDENCE AND ANALYSIS

9.      In a civil claim like this one, the applicant Everite has the burden of proving its claims, on a balance of probabilities (meaning “more likely than not”). I have only referenced below what I find is necessary to give context to my decision.

10.   Everite and the City agree that on April 20, 2021 All Roads was doing road work on Old Yale Road in Abbotsford, BC. They also agree that the City hired All Roads to do that work.

11.   Everite says All Roads drove heavy equipment over Everite’s newly paved sidewalk, despite Everite having protected it by four 4-foot-high orange delineators. Everite says this cracked the cement, which the City required Everite to replace. None of this is disputed. The City expressly takes no position about whether All Roads damaged the sidewalk.

Liability – All Roads

12.   As noted above, All Roads is in default, because it failed to file a Dispute Response as required despite being served in accordance with the CRT’s rules. I find it appropriate to assume liability against All Roads, as respondents are generally assumed to be liable when they fail to respond.

13.   That said, I find the evidence before me supports a conclusion All Roads was negligent, as there is a witness statement from BR who says they observed a bobcat repeatedly driving over the recently poured sidewalk and noted that the crew must have had to move the delineators. I find All Roads owed a duty of care to reasonably protect neighbouring property and based on the evidence I find it breached that standard, causing sidewalk damage. So, I find All Roads liable for proven damages, which I address separately below.

Liability – the City

14.   While Everite did not use these words, I infer it says the City is vicariously liable for its contractor’s negligent work. Notably, Everite did not make any specific allegations against the City.

15.   First, I consider whether All Roads was the City’s employee or independent contractor. This matters because employers are generally vicariously liable for their employees’ conduct. However, with certain exceptions, an employer is not liable for the negligence of a business it hired as an independent contractor (see Lewis (Guardian ad litem of) v. British Columbia, [1997] 3 SCR 1145 stated at paragraphs 19 and 20).

16.   The relevant factors to consider in determining whether a person or business is an independent contractor or employee are discussed in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 and further in Kirby v. Amalgamated Income Limited Partnership, 2009 BCSC 1044. These factors include the level of control the employer has over the worker’s activities, whether the worker provides his own equipment, whether the worker hires his own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker’s opportunity for profit in the performance of his tasks. These factors are not exhaustive, and the relative weight of each factor depends on the facts and circumstances of each case. The central question is whether the worker is performing services as a person in business on their own account. If so, the person is more likely an independent contractor.

17.   I find the City clearly hired All Roads as an independent contractor, rather than an employee, which as noted is not disputed. All the factors listed above favour such a conclusion and is supported by the City’s contract with All Roads in evidence.

18.   I turn then to whether this dispute involves one of the exceptions that might lead to a conclusion the City, as a municipality empowered to do road maintenance, is liable for All Roads’ negligence. In Lewis, a case that involved a death on the Sea to Sky highway from falling rocks, the court found that the provincial Crown was responsible for its contractor’s negligence in highway maintenance. The court found that because the applicable statute said the provincial Minister “shall direct” highway maintenance, this was a strict statutory duty.

19.   In short, where there is a strict statutory duty to do a particular thing, then a party cannot escape liability by delegating the job to an independent contractor. I am not aware of any relevant strict or non-delegable statutory duty that would apply to the City’s road maintenance authority.

20.   However, under the common law a municipality (like the City) may also be liable for the negligence of its employees and contractors engaged to keep roadways properly maintained and repaired (see Lewis and Craigie v. Lehigh Hanson Materials Limited, 2020 BCSC 12 at paragraph 62, which cited Lewis). Under this case law, I find the City’s duty is limited to the “travelling public”, rather than to owners of damaged property adjacent to where roadwork is being done. As also noted, Lewis arose in a personal injury context rather than a property damage context like the scenario before me. So did Craigie. I am not aware of any case law that imposes a non-delegable duty on a municipality to property owners who are not are not using the roadway at the relevant time.

21.   Given this dispute does not involve the “particular vulnerability of the travelling public” as referenced in Lewis, I find the City did not have a non-delegable duty to Everite in terms of its roadway maintenance in the context of this dispute. Here, Everite does not allege the City was negligent in hiring All Roads and it also does not allege any failure to supervise All Roads. I find no evidence to support such allegations. So, I find the City was not negligent in hiring or supervising All Roads. It follows that I dismiss Everite’s claims against the City.

Damages

22.   Everite submitted a June 7, 2021 $2,730 receipt for the sidewalk’s repair, which the City had undisputedly required Everite to fix at Everite’s cost. Everite has limited its claim to $2,500, based on the quote it had when it filed this CRT dispute. I allow the claimed $2,500 and find All Roads must reimburse Everite this amount.

23.   The Court Order Interest Act (COIA) applies to the CRT. I find Everite is entitled to pre-judgment interest under the COIA on the $2,500, calculated from June 7, 2021 to the date of this decision. This interest equals $4.61.

24.   Under section 49 of the CRTA and the CRT’s rules, a successful party is generally entitled to reimbursement of their CRT fees and reasonable dispute-related expenses. As Everite was successful in its claim against All Roads, I find All Roads must reimburse Everite $125 in CRT fees. The City did not pay CRT fees and no dispute-related expenses were claimed.

ORDERS

25.   Within 21 days of this decision, I order All Roads to pay Everite a total of $2,629.61, broken down as follows:

a.    $2,500 in damages,

b.    $4.61 in pre-judgment interest under the COIA, and

c.    $125 in CRT fees.

26.   Everite is entitled to post-judgment interest, as applicable. I dismiss Everite’s claims against the City.

27.   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. However, under CRTA section 56.1(2.1), a party in default (here, All Roads) has no right to make a notice of objection.

28.   Under section 58.1 of the CRTA, a validated copy of the CRT’s order can be enforced through the Provincial Court of BC. 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 BC.