Date Issued: January 31, 2023

File: SC-2022-003514

Type: Small Claims

Civil Resolution Tribunal

Indexed as: FortisBC Energy Inc. v. Hulbert, 2023 BCCRT 84

Between:

FORTISBC ENERGY INC.

 

Applicant

And:

DWIGHT HULBERT

 

Respondent

REASONS FOR DECISION
Tribunal Member:	Shelley Lopez, Vice Chair

INTRODUCTION

1.      In September 2021, a gas service line owned by the applicant utility company, FortisBC Energy Inc. (Fortis), was potentially damaged and Fortis attended in response to a call for its attendance. Fortis claims against the named individual respondent, Dwight Hulbert, for $1,243.23 in damages for its emergency attendance costs.

2.      As discussed below, Mr. Hulbert’s corporation, Dwight Hulbert Construction Ltd. (DHC), was the entity responsible for the digging. Mr. Hulbert was the contact person. Fortis issued its invoice to DHC. DHC is not a party to this dispute. For the reasons set out below, I dismiss Fortis’ claim against Mr. Hulbert personally because I find he is not the proper respondent.

3.      Fortis is represented by an employee. Mr. Hulbert represents himself.

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). CRTA section 2 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.      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. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. 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.      CRTA section 42 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.    Who is Fortis’ claim properly against, Mr. Hulbert or DHC?

b.    If Fortis’ claim is properly against Mr. Hulbert, is he responsible for Fortis’ claimed $1,243.23 costs?

EVIDENCE AND ANALYSIS

9.      In a civil proceeding like this one, as the applicant Fortis must prove its claim on a balance of probabilities (meaning “more likely than not”). I have read the parties’ submitted documentary evidence and arguments but refer only to what I find relevant to provide context for my decision.

10.   On August 11, 2021, Fortis issued a BC 1 Call Ticket to DHC as the “company”, and Mr. Hulbert as the “contact name”. DHC was excavating for a homeowner to address plumbing issues. On September 8, 2021, DHC’s crew were working with machinery around a boulder in a trench and they discovered Fortis’ gas line’s casing appeared to be bent. Fortis attended and determined there was no actual leak. None of this is disputed.

11.   Fortis’ claim is for its costs in attending the site following Mr. Hulbert’s call. Fortis says that while the crew had hand dug, it had not done so in a sufficient number of locations as required by the Gas Safety Regulation, which falls under the Safety Standards Act.

12.   I find I do not need to address whether Mr. Hulbert or DHC were negligent in their approach to digging around Fortis’ gas line. I say this because I find DHC, and not Mr. Hulbert personally, is the proper respondent. My reasons follow.

13.   As noted, Fortis’ BC 1 Call Ticket was issued to DHC (a corporation since 2010), not Mr. Hulbert personally. Fortis’ invoice was also issued to DHC, not Mr. Hulbert personally. It is undisputed it was DHC that was contracted to do the digging, not Mr. Hulbert personally. Mr. Hulbert was undisputedly only the “contact name” for DHC.

14.   Mr. Hulbert cited my earlier May 2022 decision in FortisBC Energy Inc. v. Cotton (dba Cotton Brothers), 2022 BCCRT 583. In Cotton, I found that Fortis had named the wrong party, because it was Mr. Cotton’s corporation that was responsible for the digging. I say the same here.

15.   In its submissions, Fortis appears to assert that its sending its invoice addressed to DHC is consistent with naming Mr. Hulbert personally as a respondent. Fortis does not explain why it did not name DHC. As I set out in Cotton, corporations are separate legal entities, distinct from their officers, shareholders, directors, and employees. Fortis did not address this separation, apart from submitting that it did not understand Mr. Hulbert’s submission about the naming issue, and that if there was an issue Mr. Hulbert should have raised it earlier.

16.   I find it does not matter if Mr. Hulbert did not raise the proper respondent issue earlier, though I have no evidence before me of any communications between the parties prior to this CRT dispute. The obligation is on Fortis as the applicant to name the correct respondent. I also note Fortis is a sophisticated litigant. Particularly given the Cotton decision, I find Fortis ought to have known who to name as the respondent in this dispute and for reasons that are not explained it did not do so.

17.   Given my conclusions above, I dismiss Fortis’ claim against Mr. Hulbert.

18.   As DHC is not a named respondent in this dispute, I have not considered any allegations against it.

19.   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 Fortis was unsuccessful, I dismiss its claim for reimbursement of CRT fees. Mr. Hulbert did not pay fees and neither party claims dispute-related expenses.

ORDER

20.   I dismiss Fortis’ claim and this dispute.