Date Issued: November 30, 2021

File: SC-2020-007478

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Baldwin v. G, 2021 BCCRT 1261

Between:

DAVID BALDWIN

Applicant

And:

MG, DG, MG as Litigation Guardian of OG (minor), YL Litigation Guardian of UL (minor), and YL

Respondents

REASONS FOR DECISION
Tribunal Member:	Sherelle Goodwin

INTRODUCTION

1.      This dispute is about property damage. The applicant, David Baldwin, says the minor respondents, OG and UL, either intentionally or negligently caused a fire on November 5, 2019, which damaged his cedar hedge. He claims $2,165 which he says is the cost of replacing the fire-damaged portion of the hedge.

2.      The respondents MG (Mrs. G) and DG (Mr. G) are OG’s parents. They say OG did not, and medically could not have, set the fire. They also deny OG was anywhere near Mr. Baldwin’s property at the time of the fire.

3.      The respondent YL (Ms. L) is UL’s mother. Ms. L says the police told her after the fact that the fire was an accident and caused only negligible damage. Ms. L says that Mr. Baldwin has not shown UL was involved in setting the fire.

4.      Mr. Baldwin says Mr. G, Mrs. G, and Ms. L are responsible for the damage caused by their minor children under the Parental Liability Act (PLA).

5.      Mr. Baldwin represents himself. Mrs. G represents herself, Mr. G and OG. Ms. L represents herself and UL.

6.      As noted, this dispute involves minors. To protect their identities, I have anonymized the respondents’ names in the published version of this dispute.

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. Parts of this dispute amount to a “he said, they said” scenario. In Yas v. Pope, 2018 BCSC 282, at paragraphs 32 to 38, the court recognized that oral hearings are not necessarily required where credibility is in issue. Further, bearing in mind the CRT’s mandate, which includes proportionality and a speedy resolution of disputes, I find that I am properly able to assess and weigh the evidence before me without an oral hearing. On balance, 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.

PRELIMINARY ISSUE

11.    Mr. Baldwin amended the Dispute Notice to name Mr. L as a respondent, as UL’s father. According to the CRT’s Confirmation of Service form, the CRT mailed a copy of the Dispute Notice to Mr. L at the same address as UL and Ms. L. Under CRT rules 2.4, a mailed Dispute Notice is considered served on the 15^th day after the notice is given to the CRT’s mail service provider, unless the CRT receives satisfactory information that the respondent did not receive the mailed Dispute Notice.

12.   Based on Ms. L’s submission that no “Mr. L” lives at UL and Ms. L’s address, I am satisfied that Mr. L did not receive the mailed Dispute Notice. It is unclear whether Mr. L exists. I am satisfied that, if there is a Mr. L, he was not properly served with the Dispute Notice and so is not a party to this dispute.

ISSUES

13.   The issues in this dispute are:

a.    Did OG or UL damage Mr. Baldwin’s cedar hedge, either intentionally or negligently?

b.    If so, what is the appropriate remedy and who must pay it?

EVIDENCE AND ANALYSIS

14.   In a civil proceeding like this one, as the applicant Mr. Baldwin must prove his claim on a balance of probabilities. I have read all the parties’ submissions and weighed the evidence, but only refer to that necessary to explain my decision.

15.   Mr. Baldwin’s hedge caught fire on November 5, 2019. Mr. Baldwin was away from his home on vacation at the time and so did not see what happened. There is no video surveillance footage in evidence. None of this is disputed.

16.   The November 5, 2019 municipal Fire and Emergency Services Incident Report in evidence shows the fire department arrived on scene around 4:25 pm and found Mr. Baldwin’s hedge had recently been on fire, with light smoke in the area. The report noted 3 youths with a barbecue lighter who spoke to “LT” who I infer was with the fire department. According to the report, the youths told LT 2 other youths told them they had lit a fire and were running away.

17.   The police attended the scene around 4:35 pm on November 5, 2019, based on Constable Thandi’s General Occurrence Report. The constable wrote that an anonymous witness at the scene “observed the offence” and knew OG and JL from school. It is undisputed that UL commonly goes by the name JL and is the person named in the police report. Constable Thandi wrote that the police contacted both OG and JL, who apologized, “took ownership of their actions” and told the police the fire was caused by “their misuse of fireworks”.

18.   Mr. Baldwin submitted photos of several damaged cedar trees, with no small limbs or needles. I accept Mr. Baldwin’s statement that the photos were taken the day after the fire by Mr. Baldwin’s family who were staying in the house while Mr. Baldwin was on vacation, as the respondents do not dispute it. It is unclear from the black and white photos whether the trees have any burn marks on them. However, a May 19, 2020 invoice from Sunrise Landscapes shows the company removed several “fire damaged” trees. On balance, I find it likely the cedar trees were damaged by the hedge fire documented in both the fire and police department reports.

19.   Based on the reports, I find it likely that the hedge fire was caused by fireworks, and not the barbecue lighter mentioned in the fire department report.

20.   Mr. Baldwin says the police report shows OG and JL started the fire. I do not find either OG or UL intentionally set the hedge on fire, given Constable Thandi’s note about “misuse”. Even if OG and UL told the 3 unnamed youths that they lit a fire, I find that does not necessarily mean the fire was lit intentionally. Further, as explained below, I place very little weight on indirect information from unnamed sources. As I find the fire was not intentional, I will turn to Mr. Baldwin’s claims in negligence.

21.   In order to succeed in a claim for negligence, Mr. Baldwin must show OG and UL owed him a duty of care, that they failed to meet that duty, and that failure resulted in the damages claimed by Mr. Baldwin. The claimed damages must also be reasonably foreseeable (see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27).

22.   I accept that there is a general duty to take care not to damage a neighbour’s property. I find anyone lighting fireworks has a general duty to ensure the lit firework is directed away from flammable property, such as cedar hedges, as it is reasonably foreseeable that a lit firework landing on such property could start a fire.

23.   Mrs. G days OG was only a bystander and was not involved in starting the fire. It is undisputed that the Gs met with Mr. Baldwin when he arrived home from vacation in late January 2020. The Gs say, and Mr. Baldwin does not dispute, that at the meeting OG specifically said she did not start the fire. This is supported by an undated handwritten apology letter which OG undisputedly gave Mr. Baldwin at the meeting. In the letter OG said she did not know her friend had a firecracker and was not near her when she threw it. However, OG felt very bad about the damage, apologized that her friend threw the firecracker, and offered to help fix the damage. Contrary to Mr. Baldwin’s argument, I find the letter is not OG’s admission of fault but rather a denial of fault.

24.   Both the police report and fire report are hearsay evidence, in that they contain second and third hand information about what happened. The reports do not include statements in the witness’ own words, name the witnesses, or specifically describe what, exactly, the witnesses saw either OG or UL do. For these reasons, I give the indirect evidence in the reports little weight.

25.   I acknowledge that OG’s letter is in her own interest. However, it is direct evidence of what OG did and saw that night, with more detail than the police and fire reports, so I give it more weight overall. In his report, Constable Thandi does not detail what actions OG took ownership of and what role she played in the “misuse of fireworks” whereas OG specifically denies holding or throwing the firecracker but admits being present when “her friend” did so. Overall, I find OG’s letter more persuasive than Constable Thandi’s report regarding OG’s role in the incident.

26.   Given the lack of other direct evidence about what happened on November 5, 2019, I find it more likely than not that OG was not in possession of the fireworks.

27.   I am unaware of any legal principle which would impose a duty of care on OG to prevent her friend from having, lighting, or throwing fireworks. There is no evidence that OG encouraged her friend’s actions. Rather I accept OG’s statement that she did not know her friend had the firework until it was thrown. So, I find OG has not breached any general duty of care to her neighbour, Mr. Baldwin, to take care not to damage his property.

 

28.   Given my conclusion above, I find I need not address the G’s claim that OG could not have started the fire based on her medical concerns.

29.   I dismiss Mr. Baldwin’s claims against OG. As I have found OG is not legally responsible for the damaged cedar hedge, I find OG’s parents are also not responsible and also dismiss Mr. Baldwin’s claims against them.

30.   I now turn to consider Mr. Baldwin’s claims against UL and Ms. L.

31.   In her submissions Ms. L essentially says Mr. Baldwin has failed to prove his claims. She says there is no evidence of UL’s involvement in the incident. However, given Constable Thandi’s notes and police report which note UL’s name, correct address, and the fact that OG and UL admitted to “misuse of fireworks”, I find UL was involved.

32.   OG’s letter does not identify UL as her “friend” who threw the firecracker. However, given the undisputed police report naming only OG and UL as suspects, I find it more likely than not that UL is the friend with the firecracker that OG refers to in her letter. UL provided no statement denying her involvement or addressing these pieces of evidence. Further, at no point in her submissions does Ms. L deny that UL had or threw a firecracker on November 5, 2019.

33.   On balance, I find it likely that UL had fireworks on November 5, 2019 and that she had a duty to take care with those fireworks. Based on UL’s undisputed birthdate in the police report, I find she was 14 years old on November 5, 2019. I find a reasonable 14-year-old would understand their duty to take care with fireworks, and not to damage a neighbour’s property. I find UL negligent in that she failed to meet that the standard of a reasonable 14-year-old. There is insufficient evidence before me to show that anyone else had, or threw, firecrackers. So, I find UL’s negligence in throwing the firecracker likely caused the documented fire and damaged Mr. Baldwin’s cedar trees, as shown in the photos. I find that such damage arising from throwing a lit firecracker is reasonably foreseeable.

Remedy and who is Responsible?

34.   The common law in British Columbia does not prevent civil claims against a minor. As I have found UL responsible for the damages to Mr.Baldwin’s cedar hedge, it follows that UL is liable for Mr. Baldwin’s losses. Before I determine the amount of those losses, I will first consider whether Ms. L is also responsible for them.

35.   Sections 3 and 9 of the PLA say a parent is liable for intentional property damage caused by their child if the parent failed to reasonably supervise the child and discourage the damaging activities. As I have found UL did not deliberately set fire to the hedge, I find the PLA does not apply here.

36.   Generally speaking, parents will only be responsible for their children’s negligence if they failed to supervise and control their child, according to the general standard of parents in the community (see Gu v. Friesen, 2013 BCSC 607, citing Taylor v. King, 1993 CanLII 6859 (BC CA)).

37.   There is no indication in the evidence that UL had previously used fireworks or otherwise negligently damaged property. Further, the evidence does not show Ms. L knew, or reasonably ought to have known, that UL would be using fireworks on November 5, 2019. In the absence of any contrary evidence, I find it reasonable for Ms. L to not be directly supervising her 14-year old child in her own community at 4:30 pm on a weekday. Overall, I find no indication that Ms. L could have foreseen, nor taken steps to prevent, UL’s misuse of fireworks on November 5, 2019.

38.   On balance, I find Mr. Baldwin has failed to prove Ms. L negligently failed to supervise UL on November 5, 2019. I dismiss the claims against Ms. L. I now turn to the amount of damages payable by UL.

39.   Based on a May 19, 2020 invoice from Sunrise Landscapes, I find Mr. Baldwin paid $2,165 to have 9 fire-damaged cedar trees removed and replaced with 6 12-foot trees. Given the bare limbs of the trees in the photos, I find it reasonable for Mr. Baldwin to remove and replace the fire-damaged trees. I find UL must pay Mr. Baldwin $2,165 in damages.

40.   The Court Order Interest Act applies to the CRT. Mr. Baldwin is entitled to pre-judgment interest on the $2,165 from the May 19, 2020 invoice to the date of this decision. This equals $18.80.

41.   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. As Mr. Baldwin was mostly successful, I find he is entitled to reimbursement of $125 in CRT fees. Mr. Baldwin claimed no dispute-related expenses.

ORDERS

42.   Within 30 days of the date of this order, I order YL as Litigation Guardian of UL to pay Mr. Baldwin a total of $2,308.80, broken down as follows:

a.    $2,165 in damages,

b.    $18.80 in pre-judgment interest under the Court Order Interest Act, and

c.    $125 in CRT fees.

43.   Mr. Baldwin is entitled to post-judgment interest, as applicable.

44.   I dismiss the claims against Ms. L, Mr. G, Mrs. G, and Mrs. G as litigation guardian for OG.

45.   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.

 

46.   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.