Date Issued: February 16, 2023

File: SC-2021-008924
SC-2022-004015

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Ross v. Darbyshire, 2023 BCCRT 145

Between:

TRACY ROSS

Applicant

And:

BRIAN DARBYSHIRE

Respondent

And:

TRACY ROSS

Respondent BY COUNTERCLAIM

REASONS FOR DECISION
Tribunal Member:	Leah Volkers

INTRODUCTION

1.      This decision relates to 2 linked disputes that I find collectively consist of 1 claim (SC-2021-008924) and 1 counterclaim (SC-2022-004015). So, I have issued 1 decision for both disputes.

2.      Tracy Ross is the applicant in SC-2021-008924 and the respondent by counterclaim in SC-2022-004015. Mrs. Ross says that her former manager, the respondent and applicant by counterclaim, Brian Darbyshire, vandalized and damaged two of her vehicles by pouring unknown substances into the fuel tanks. She claims a total of $2,798.61 in damages.

3.      Mr. Darbyshire says Mrs. Ross falsely accused him of vandalizing her vehicles. He says he suffered various losses as a result, including legal fees to defend himself on a mischief charge, and missing a flight and related costs. He counterclaims for a total of $5,000 in damages.

4.      The parties are each self-represented.

JURISDICTION AND PROCEDURE

5.      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.

6.      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. In some respects, both parties in this dispute call into question the credibility, or truthfulness, of the other. The credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. 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. I also note that in Yas v. Pope, 2018 BCSC 282, at paragraphs 32 to 38, the British Columbia Supreme Court recognized the CRT’s process and found that oral hearings are not necessarily required where credibility is an issue.

7.      Under section 10 of the CRTA, the CRT must refuse to resolve a claim that it considers to be outside the CRT’s jurisdiction. A dispute that involves some issues that are outside the CRT’s jurisdiction may be amended to remove those issues.

8.      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.

9.      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.

Late Evidence

10.   Mrs. Ross provided late evidence with her final reply submissions. Mr. Darbyshire was provided with an opportunity to review and provide submissions on the late evidence, so I find there is no actual prejudice in allowing this late evidence. Consistent with the CRT’s flexible mandate, I have allowed and considered this late evidence.

 

ISSUES

11.   The issues in this dispute are:

a.    Did Mr. Darbyshire vandalize Mrs. Ross’s vehicles, and if so, is Mrs. Ross entitled to the claimed $2,798.61 in damages?

b.    Is Mr. Darbyshire entitled to reimbursement of $5,000 in damages?

EVIDENCE AND ANALYSIS

12.   In a civil proceeding like this one, as the applicant Mrs. Ross must prove her claims on a balance of probabilities (meaning more likely than not). Mr. Darbyshire bears the same burden for his counterclaim. I have reviewed all the parties’ submissions and evidence but refer only to what I find relevant to provide context for my decision.

Mrs. Ross’s claim

13.   As noted, Mrs. Ross alleges that Mr. Darbyshire poured an unknown substance into the fuel tanks of her 2010 Dodge pick-up and “potentially” her 2006 Toyota Tacoma on May 26, 2021. Mrs. Ross says she and her husband, who is not a party to this dispute, watched as Mr. Darbyshire vandalized the vehicles. She says both vehicles had to be towed to a mechanic shop for diagnosis and repair.

14.   Mr. Darbyshire is Mrs. Ross’s former manager. Mrs. Ross suggests that he vandalized her vehicles because she sent a letter to her former employer earlier on May 26 detailing the abuse she allegedly endured from Mr. Darbyshire when she worked there. Mrs. Ross also says Mr. Darbyshire was charged with mischief for vandalizing her vehicles.

15.   Mr. Darbyshire says Mrs. Ross falsely accused him of vandalizing her vehicles, and says he was out of town when the alleged vandalism occurred. Mr. Darbyshire says the mischief charge was stayed by BC Crown Counsel, which is supported by an April 25, 2022 letter from the BC Prosecution Service. This means Crown Counsel dropped the mischief charge against Mr. Darbyshire. A criminal charge, without a conviction, is not proof that Mr. Darbyshire vandalized Mrs. Ross’s vehicles as she alleges.

16.   Mrs. Ross did not provide other evidence to support her submissions that she saw Mr. Darbyshire vandalize her vehicles. Mrs. Ross’s correspondence with the RCMP suggests that Mrs. Ross’s neighbour may have witnessed the alleged vandalism. The RCMP file itself is not in evidence, and there are no statements from Mrs. Ross’s husband, neighbour, or anyone else, to support her claim. There are also no photographs, videos or other documentary evidence to support her claim. The evidence indicates that Mrs. Ross requested the RCMP file through the federal Access to Information Act, but it was delayed. However, Mrs. Ross did not explain why she did not obtain a statement directly from her neighbour.

17.   As noted, as the applicant Mrs. Ross bears the burden of proving her claims. Based on the evidence, I find I am left with an evidentiary tie. This means I find Mrs. Ross and Mr. Darbyshire’s version of events equally likely. Therefore, I find Mrs. Ross has not met her burden of proving that Mr. Darbyshire vandalized her vehicles. With that, I find it unnecessary to address Mrs. Ross’s claimed damages and I dismiss her claim.

Mr. Darbyshire’s counterclaim

18.   As noted, Mr. Darbyshire says Mrs. Ross falsely accused him of vandalizing her vehicles. Mr. Darbyshire counterclaims for his legal fees to defend the mischief charge, and other damages he says he suffered when he was “detained”, including missing a flight, and related hotel, fuel, and food costs.

19.   Although Mr. Darbyshire does not use these words, I find he alleges that Mrs. Ross committed the tort of malicious prosecution, and claims damages. However, claims for malicious prosecution are explicitly excluded from the CRT’s small claims jurisdiction under CRTA section 119(a). Therefore, I refuse to resolve Mr. Darbyshire’s counterclaim under CRTA section 10.

CRT fees and expenses

20.   Under CRTA section 49 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. As Mrs. Ross was unsuccessful, I dismiss her fee claim and her claim for reimbursement of dispute-related expenses. Mr. Darbyshire did not claim any dispute-related expenses, so I award none. I have refused to resolve Mr. Darbyshire’s counterclaims for jurisdictional reasons. I therefore direct CRT staff to refund Mr. Darbyshire $125 in CRT fees.

ORDERS

21.   I dismiss Mrs. Ross’s claims.

22.   I refuse to resolve Mr. Darbyshire’s counterclaim under CRTA section 10.

23.   In the circumstances, I direct the CRT to refund Mr. Darbyshire’s paid CRT fees.