Date Issued: September 26, 2022

File: SC-2022-001918

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Guay v. Pack Rat Movers Inc., 2022 BCCRT 1054

Between:

TESS GUAY

Applicant

And:

PACK RAT MOVERS INC.

Respondent

REASONS FOR DECISION
Tribunal Member:	Chad McCarthy

INTRODUCTION

1.      This dispute is about flooring damage. The applicant, Tess Guay, hired the respondent, Pack Rat Movers Inc. (Pack Rat), for a residential move. Mr. Guay says Pack Rat damaged some stair nosings when moving his belongings into his new residence. He claims $853.65 in damages for the estimated cost of replacing the stair nosings.

2.      Pack Rat says it took precautions to avoid damaging the floors, and in any event the parties’ contract makes “insurance claims” subject to a $2,500 deductible, so it owes nothing.

3.      Mr. Guay is a lawyer and is self-represented in this dispute. Pack Rat is represented by its owner, Russ Tober.

JURISDICTION AND PROCEDURE

4.      These are the formal 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.

ISSUES

8.      The issues in this dispute are:

a.    Did Pack Rat damage Mr. Guay’s stair nosings?

b.    If so, does a $2,500 deductible apply, or does Pack Rat owe $853.65 in damages?

EVIDENCE AND ANALYSIS

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

Did Pack Rat damage Mr. Guay’s stair nosings?

10.   Pack Rat undisputedly moved Mr. Guay’s possessions into his new home on January 30, 2022. Mr. Guay alleges that Pack Rat negligently damaged his new home’s stair nosings, meaning the steps’ front edges. Pack Rat says it protected the floors, other tradespeople were working in the house at the same time, and Mr. Guay did not report any damage until many days later. I find Pack Rat denies causing any damage.

11.   To prove Pack Rat negligently damaged the nosings, Mr. Guay must show that Pack Rat owed him a duty of care, it breached the standard of care, and that the breach caused or contributed to reasonably foreseeable damage (see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at paragraph 3).

12.   As Mr. Guay’s contracted movers, I find that Pack Rat owed him a duty of care. The parties’ 1-page moving contract says it included terms and conditions “listed on reverse,” but those terms and conditions are not in evidence. So, I find the evidence before me does not show whether the parties agreed to a particular standard of care in the contract. In the circumstances, I find that the applicable standard of care was for Pack Rat to take reasonable care, as a professional moving company, to avoiding damaging Mr. Guay’s home. As explained below, I find this dispute turns on whether Pack Rat caused or contributed to stair nosing damage.

13.   Mr. Guay says the stairs were newly installed and undamaged prior to the move. I find there is no supporting evidence before me showing the state of the stairs immediately before the move.

14.   Mr. Guay submitted photos, which I find show a few very small chips and a single crack on stair nosings. Mr. Guay does not say that he actually saw that damage occur. He says that the movers sometimes paused and set down large items on the stairs, although he does not say exactly what or how much the items weighed. Mr. Guay does not say that Pack Rat dropped anything heavy on the stairs or struck them. Beyond Mr. Guay’s own submissions, I find there is no direct evidence, such as witness statements or video or other documents, that Pack Rat damaged the nosings.

15.   Mr. Guay says that Pack Rat put some blankets on the stairs, but the blankets did not cover all the stairs and they shifted during the move. Pack Rat says it “covered” the floors with floor runners and padded moving blankets. I find none of the submitted photos show how the stairs were covered during the move. Mr. Guay says that Pack Rat likely damaged the nosings by placing large items on the poorly protected stairs. I find that Mr. Guay alleges Pack Rat negligently failed to properly protect the stair nosings during the move, and that this failure resulted in the nosing damage.

16.   I find there is a lack of evidence showing that Pack Rat left the stair nosings uncovered and unprotected during the move. I also find there is a lack of evidence showing that Pack Rat set down items on unprotected stair nosings, or placed large items on the nosings with a force that was likely to damage them. Further, I find there is no evidence before me showing that the floor protections Pack Rat actually used were not sufficient to prevent nosing damage by the movers. So, I find Mr. Guay has not proven that Pack Rat’s floor protections failed to meet the required standard of care in the circumstances.

17.   Mr. Guay also says he noticed the nosing damage within 24 hours after the move, which he says supports that Pack Rat caused the damage. However, the submitted damage photos all indicate that they were taken on February 11, 2022, which is 11 days after the move. It is undisputed that Mr. Guay did not report any damage to Pack Rat until many days after the move. I find the submitted evidence does not support a finding that Mr. Guay noticed damage within 24 hours.

18.   I find the first evidence that Mr. Guay noticed and reported damage was in a February 11, 2022 text message to a Pack Rat representative, 11 days after the move. Mr. Guay says he did not report the damage immediately because he believed he first needed to do some “homework” to determine repair costs. However, I find the evidence does not show that Mr. Guay did any of this “homework” in the 11 days between the move and the February 11, 2022 text message. Mr. Guay did not mention specific necessary repairs or their likely cost in his text messages on February 11, February 24, or March 15, 2022. The only submitted repair estimate, from Ramco Floor & Tile, is dated March 22, 2022.

19.   Having weighed the evidence and submissions, I find Mr. Guay’s 11 day delay in reporting the damage is inconsistent with the damage occurring during the move and being noticed within 24 hours.

20.   Mr. Guay admits that his new home was being renovated by contractors near the time of the move. He also admits that upstairs painting work remained unfinished at that time, and required contractors to use the stairs. However, Mr. Guay does not say whether others used the stairs before he reported the nosing damage on February 11, 2022. On the evidence and submissions before me, I find it likely that Mr. Guay, his household members, and painters used the stairs in the 11 days before Mr. Guay first reported the nosing damage. I find this raises a significant possibility that those persons, and not Pack Rat, damaged the nosings.

21.   For the above reasons, I find it is unproven that Pack Rat caused or contributed to the stair nosing damage. So, I dismiss Mr. Guay’s claim for $853.65 in damages. Given that no damages are owed, I find it is not necessary to consider whether damage or insurance claims were subject to a $2,500 deductible payable by Mr. Guay under the parties’ contract, and I make no findings about that.

CRT Fees and Expenses

22.   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. Here, I see no reason not to follow that general rule. Mr. Guay was unsuccessful, but Pack Rat paid no CRT fees and neither party claimed CRT dispute-related expenses. So, I order no reimbursements.

ORDER

23.   I dismiss Mr. Guay’s claims, and this dispute.