Date Issued: January 10, 2022

File: SC-2021-005910

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Robson v. Barnett, 2022 BCCRT 20

Between:

JAMES ROBSON

Applicant

And:

BRIDGET BARNETT

Respondent

INTRODUCTION

1.      This dispute is about theft due to alleged negligence. The parties live in different units in the same strata corporation (strata). The respondent, Bridget Barnett, left keys to her strata lot and the common areas in a lockbox outside of the strata building. The lockbox was broken into and the keys were used to access the building. The applicant, James Robson, says items were stolen from his storage locker in the building. Mr. Robson says that Ms. Barnett negligently left her keys in an accessible location, and he claims $3,260 from her for the stolen items’ replacement value.

2.      Ms. Barnett says the lockbox was secured to a bicycle rack in front of a security camera and the building’s main entrance, and she was not negligent in placing the keys there. She also says that Mr. Robson has not proven that the claimed items were stolen from him, and she owes nothing.

3.      The parties are each self-represented in this dispute.

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). 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.

5.      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. 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.

6.      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.

7.      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.

8.      Mr. Robson submitted evidence after the deadline passed. Ms. Barnett had an opportunity to comment on the late evidence, which included a July 14, 2021 email from Ms. Barnett to the strata council president. Ms. Barnett says this was a private communication and should be excluded from evidence. There is no rule prohibiting emails between individuals as evidence. Further, there is no evidence that anyone was required to keep the email confidential, or that there were any other limits on its disclosure. I find the email and other late evidence are relevant to this dispute, and I find Ms. Barnett is not prejudiced by their inclusion. So, I allow all of the late evidence.

ISSUE

9.      Was Ms. Barnett negligent in leaving her keys in the lockbox, and if so, does she owe Mr. Robson $3,260 in damages for allegedly stolen items?

EVIDENCE AND ANALYSIS

10.   In a civil proceeding like this one, Mr. Robson as the applicant must prove his claims on a balance of probabilities, meaning “more likely than not”. I have read all the parties’ submissions but refer only to the evidence and arguments that I find relevant to provide context for my decision.

11.   On or before July 10, 2021, Ms. Barnett undisputedly left in the lockbox keys and electronic key fobs for her strata lot, the strata building, and common areas including the storage locker room. Photos in evidence show the lockbox was made of metal, had a combination lock to access its interior, and had a metal loop for securing the box to other objects. The lockbox was undisputedly fastened to a bicycle rack that photos show was secured to a concrete ground surface approximately 3 metres from the building’s main entrance. The rack was positioned diagonally in front of the clear glass entrance doors and windows, and was easily viewable from the lobby. A wall-mounted security camera was positioned approximately 3 metres from the bicycle rack and pointed almost directly at it.

12.   It is undisputed that overnight between July 10 and July 11, 2021, someone broke into the lockbox and stole the keys from it. Photos in evidence show the broken lockbox, which has a ragged opening where the door to its interior would likely be. There are narrow channels cut into lockbox’s case, which I find have the appearance of saw cuts. Electronic door access records undisputedly show that Ms. Barnett’s key fob was used to access the building in the early morning hours of July 11, 2021, although she was on vacation and was not at home. Strata lot residents undisputedly reported thefts from the building shortly after that time.

13.   Mr. Robson says someone accessed the storage locker room using Ms. Barnett’s stolen keys, broke the lock on his storage locker, and stole power tools, hand tools, a suitcase, a backpack, and a tent. He provided no receipts or photos showing that he purchased or owned those items, apart from a photograph of a person, 2 motorcycles and a tent. He did not provide a list of the specific tools allegedly stolen, although he submitted receipts dated July 17, 2021 and July 23, 2021 showing the purchase of several replacement tools. Witness statements by a friend, SH, and a work acquaintance, PH, say they had seen Mr. Robson in possession of a tent and various listed tools over the years, which I infer are the items Mr. Robson says were stolen.

14.   Ms. Barnett says the evidence does not show that any items were actually stolen from Mr. Robson’s storage locker, although she does not dispute that items were stolen from others in the strata, including herself, using the stolen keys. I find there are no photos showing the storage locker or its broken lock. However, given the other undisputed thefts in the building at the same time, I find it likely that the key thieves broke into Mr. Robson’s storage locker and stole some items from it on July 11, 2021. Given the outcome of my decision as explained below, I find it is not necessary to determine exactly what was stolen or the items’ value.

15.   Mr. Robson says that Ms. Barnett was negligent in leaving her keys in the lockbox attached to the bicycle rack. According to Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at paragraph 3, to prove negligence Mr. Robson must demonstrate that:

a.    Ms. Barnett owed him a duty of care,

b.    Ms. Barnett breached the standard of care,

c.    Mr. Robson sustained damage, and

d.    The damage was caused by Ms. Barnett’s breach.

16.   I find Ms. Barnett owed Mr. Robson a duty of care to keep her keys to the building’s common areas reasonably safe, as failing to do so could give thieves better access to the building and the storage locker area. The main question here is whether Ms. Barnett breached the appropriate standard of care in the circumstances.

17.   Ms. Barnett says she put the lockbox and keys on the bicycle rack so that her daughter would have easy access to her strata lot to water her plants while she was away. Mr. Robson questions why Ms. Barnett left keys allowing access to the storage locker room, in particular when her daughter already had keys to Ms. Barnett’s strata lot. However, I find it is not entirely clear which of the keys left in the lockbox were needed to enable care of Ms. Barnett’s strata lot in her absence, and I find little turns on that in any event. It is undisputed that the lockbox contained keys that allowed access to the strata building and storage locker room, and the question is whether Ms. Barnett breached the standard of care by leaving them there. I find leaving in the lockbox a potentially unnecessary key to the storage locker room does not by itself demonstrate negligence. Mr. Robson must also prove it was reasonably foreseeable that the lockbox would be broken into and the keys used to steal items from his storage locker.

18.   Mr. Robson cited previous CRT decisions, which are not binding on me, that he says show Ms. Barnett breached the applicable standard of care. In Crichton v. The Owners, Strata Plan KAS431, 2017 BCCRT 33, a vice chair found that the applicant left her keys in her coat pocket on an unsecured public coat rack while she played cards in a different room, which resulted in the keys’ theft. The vice chair found this was negligent or careless. However, I find that is different than the situation here, because Ms. Barnett did not leave the keys unsecured in the pocket of an unattended coat, but in a locked box that was accessed by sawing through metal.

19.   In Job v. The Owners, Strata Plan K77, 2020 BCCRT 304, a tribunal member found that strata lot owners were “responsible” for the theft of keys from a lockbox their realtor left near the strata property, which resulted in the strata corporation re-keying the strata’s locks and charging the cost back to the owners. However, I find this was a finding that the realtor was not responsible for the keys’ theft, because the owners had provided the keys and signed the realtor’s waiver about the lockbox. The tribunal member made no direct findings about whether the owners were negligent in allowing their keys to be left in a lockbox, because that strata property decision turned on whether the owners breached a strata bylaw about not damaging common property, and not negligence. So, I find that decision is not helpful in determining the standard of care here.

20.   Mr. Robson also says that in Ms. Barnett’s July 14, 2021 email, she said that residents of an urban condo should be aware of the heightened risk of theft from storage lockers, and that the incident seemed “reflective of the changes we’ve seen” in the neighbourhood. However, I find these statements do not demonstrate that there were in fact elevated security risks in the strata or its neighbourhood, or that Ms. Barnett failed to reasonably secure the keys in the circumstances. Further, Mr. Robson admits that the strata’s only other “break-in” was in 2008 when a person slipped into a parking area before the gate closed and broke into residents’ cars. I find the evidence does not show that there were particular or elevated security concerns at the strata, or that there were any break-ins in the previous 13 years before July 11, 2021. So, I find the evidence does not show there was any reason for Ms. Barnett to take additional and extraordinary steps to secure items like the lockbox at the strata.

21.   Ms. Barnett says, and Mr. Robson does not deny, that other residents have left keys in lockboxes fastened to the bicycle rack in the past. The evidence does not show that any of these other lockboxes were broken into, or that there were attempts to break into them. Ms. Barnett also submitted undisputed copies of the strata’s bylaws that she says were in effect at the time of the break-in. Those bylaws do not prohibit leaving keys in lockboxes.

22.   Ms. Barnett says she left the lockbox close to the building’s main door and in plain sight, which she thought would discourage potential thieves. I agree, and find the lockbox was in plain sight by the main door, and was also easily viewable from the lobby area and by the installed security camera. Contrary to Mr. Robson’s assertion, I find the evidence does not show Ms. Barnett knew the security camera did not work. I find she was informed that the camera did not work after the break-in. Mr. Robson speculates that the thief or thieves used a sandwich board from a nearby shop to obscure the view of their lockbox break-in from the security camera. Even if that was true, I find that a reasonable person would not expect the security camera deterrent to be overcome in that manner.

23.   Mr. Robson also suggests that the lockbox was “accessible” because he says it was broken into by banging it with a heavy object. However, I find the fact that someone successfully broke into the lockbox does not necessarily mean that Ms. Barnett failed to meet the applicable standard of care in securing the keys. Further, I find the evidence does not show that the lockbox was so easily breakable that it could be considered “accessible” and therefore unsecure, especially given my finding that a saw was likely used cut the metal lockbox. So, I find that Ms. Barnett did not breach the applicable standard of care simply by leaving a lockbox where she did, even though it would appear likely to contain something like keys to the building.

24.   For all of the above reasons, I find that Mr. Robson has not met his burden of proving that Ms. Barnett breached the applicable standard of care in the circumstances. So, I find she was not negligent in leaving her keys in the lockbox as she did. I need not consider the remaining elements of negligence such as whether Mr. Robson sustained damage from the theft of items from his storage locker. I dismiss Mr. Robson’s claim.

CRT FEES AND EXPENSES

25.   Under section 49 of the CRTA, and the CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. Mr. Robson was unsuccessful in his claim, and Ms. Barnett paid no CRT fees and claims no CRT dispute-related expenses. So, I order no reimbursements.

ORDER

26.   I dismiss Mr. Robson’s claim, and this dispute.