Date Issued: February 17, 2023

File: SC-2022-005847

Type: Small Claims

Civil Resolution Tribunal

Indexed as: WC v. City of Richmond, 2023 BCCRT 148

Between:

WC

Applicant

And:

CITY OF RICHMOND

Respondent

REASONS FOR DECISION
Tribunal Member:	Megan Stewart

INTRODUCTION

1.      The applicant, WC, is the father of a minor child, EC, who attended day camp for 6 to 10 year-olds in 2022. WC alleges the City of Richmond (City) breached its contract with him by failing to enforce its codes of conduct against other children who attended the day camps with EC. WC says the other children bullied EC and engaged in behaviour that created an unsafe environment. He also says staff were negligent because they did not take steps to prevent EC from being bullied. WC requests reimbursement of day camp fees for 5 weeks, which total $1,008.

2.      The City says it did not have a contract with WC because the day camps at issue were operated by the Richmond City Centre Community Association (CCCA), not by the City. CCCA is not a party to this dispute. If there was a contract between WC and the City, the City denies any breach. The City also says WC does not have standing (the legal right) to bring a claim in negligence because the alleged bullying incidents relate to EC, and WC is not acting as EC’s litigation guardian in this dispute.

3.      WC is self-represented. The City is represented by its insurer’s lawyer, Brian Lee.

4.      I have anonymized WC’s name in the published version of this decision, to protect EC’s identity.

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.

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. 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 an oral hearing is not necessary in the interests of justice.

7.      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.

8.      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

9.      The issues in this dispute are:

a.    Did WC contract with the City and if so, did the City breach the contract?

b.    Does WC have standing to bring a negligence claim, and if so was the City negligent in failing to protect EC from bullying?

EVIDENCE AND ANALYSIS

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

11.   The City says WC’s claims are statute-barred because WC did not provide the City with written notice under sections 735 and 736 of the Local Government Act (LGA). I find this is a threshold issue I must decide first.

12.   LGA section 735 is about time limits within which certain actions against a municipality must be started. The City did not explain why it believes WC’s claims are out of time. In any event, WC applied for dispute resolution with the CRT on August 19, 2022. I find the cause of action, the alleged breach of contract and negligence, arose between July 4 and August 5, 2022, which was when EC attended day camp. So, WC’s claim is not out of time under LGA section 735. I also find WC gave the City proper written notice under LGA section 736 when he emailed the City’s customer service centre setting out his allegations on August 6, 2022. So, I find WC’s claims are not statute-barred.

Did WC contract with the City and if so, did the City breach the contract?

13.   The City denies it contracted with WC on the basis the day camps were operated by CCCA. In support of this argument, the City submitted a signed 2017 agreement between it and CCCA for the provision of recreational services to the community. The agreement said CCCA was an independent contractor with its own staff who delivered the recreational services. It also permitted CCCA to use the City’s program registration system and indicated the City could allow CCCA access to its computer, communications, and technology systems to deliver the services.

14.   WC does not challenge the validity of the agreement. Instead, he says the way in which CCCA and the City are associated is not his concern. In particular, he says the City is responsible for the day camps because he booked them on the City’s website, made payments to and received receipts from the City, and sent emails to staff with domain names ending in “richmond.ca”. WC says that given all of this, he assumed he was contracting with the City for EC’s day camps.

15.   For a valid and enforceable contract to exist, there must be a mutual intention to create legal obligations. That is, it must be clear to an objective, reasonable bystander that the parties intended to contract with each other (see Kuo v. Kuo, 2017 BCCA 245). The contract’s essential terms must be sufficiently clear, and the party seeking to rely on the contract must show there was matching offer and acceptance of those terms (see Ratanshi v. Brar Natural Flour Milling (B.C.) Inc., 2021 BCSC 2216). I find the evidence shows the following:

a.    WC’s day camp receipts and registration confirmation were from the City and contained no reference to CCCA.

b.    The registration confirmation confirmed day camp fees, location and hours of operation. Though neither party provided a screenshot of the City’s website-advertised day camp offer and booking system, the City does not dispute WC booked the day camps on the City’s website, and I accept he did. Neither party suggests the City’s website advertised the day camps as being offered by anyone other than the City, or with different fees, location and hours of operation to those confirmed in the registration confirmation. So, I find those were the contract’s essential terms.

c.    Emails to WC confirming EC’s day camp attendance were titled “City of Richmond Reservation Details” and referenced the City’s address and website.

d.    The “COVID-19 Informed Consent & Permission Form”, which had to be submitted before children could participate in day camps, was on City letterhead.

e.    Though the day camp welcome letter was on CCCA letterhead, it referenced the City and “Community Associations” being proud of the quality programming “we are able to offer”.

16.   While the City and CCCA had an agreement for CCCA to operate the day camps and use the City’s IT systems, based on the evidence summarized above, I find an objective, reasonable bystander would have concluded WC and the City intended to contract for the provision of day camp services as advertised on the City’s website. I find they entered into the contract when WC accepted the City’s offer of day camp services by paying for them. So, I find WC contracted with the City for the day camps.

17.   The City alleges if there was a contract between it and WC, its codes of conduct were not part of that contract because they were given to WC after he paid for the day camps. There were two codes of conduct embedded in the day camp documents. The first was part of the registration confirmation and the second was embedded in the welcome letter.

18.   It is undisputed the City provided the registration confirmation and welcome letter to WC after he paid for the day camps, so I find the codes of conduct were not part of the original contract between the parties. However, I find the codes of conduct were a contractual amendment to the original contract. This is because they introduced additional day camp participation requirements that WC implicitly accepted by not withdrawing EC from day camp or requesting a refund when he became aware of them. The courts have held that fresh consideration (something of value given by each party) is not required to enforce a contractual amendment (see Rosas v. Toca, 2018 BCCA 191). So, I find the codes of conduct became part of the parties’ contract.

19.   The first code of conduct set out the City’s general behavioural expectations and consequences, including potential suspension or expulsion from a program at the City’s discretion. The second was specific to day camps and said, “If a participants’ behaviour is resulting in an unsafe environment for others, the participant will be asked to take one rest day away from the programs” (reproduced as written).

20.   WC alleges the City breached their contract by not enforcing the second code of conduct against children who were bullying EC. WC identifies several incidents he says EC told him about in support of the City’s alleged breach:

a.    A child “punched towards” EC’s face during a game.

b.    A child took EC’s arts and crafts and did not give them back.

c.    A child hit EC’s arts and crafts box.

d.    A child called EC a name.

e.    A child screamed in EC’s face and threw punches towards them.

f.     A child’s feet hit EC’s head when they were climbing.

g.    A child purposely stepped in front of a swing while EC was swinging to get them into trouble.

h.    A child pushed EC, pulled their hand, and put unwanted items in their lap. They did not listen when EC told them to stop.

i.      A child made a gun motion with their hand and swung it close to EC’s head.

j.      A child hit EC with a mat.

21.   WC says EC tried to report these incidents to staff but they did not intervene and did not require the children against whom the allegations were raised to take a “rest day”.

22.   The City provided day camp leaders’ contemporaneous notes and statements describing their observations of and responses to the incidents they witnessed or were made aware of. One leader, NC, reported being told about an incident where a child was calling other children names. NC said a staff member spoke to the child about their behaviour. There is no evidence the name-calling continued. On another occasion, NC reported speaking to the same child following a report from EC’s mother that the child had pretended to hit EC. In respect of the punching incident, NC reported the same child had become frustrated during a game and had punched towards EC. A staff member intervened and explained to the child why what they had done was unacceptable. The child apologized to EC. EC said they were fine and rejoined the game. NC observed that EC generally seemed happy at day camp.

23.   Another leader, KB, described how staff members took steps to organize EC and the other child against whom most of the allegations were raised in a way that minimized negative interaction. For instance, staff members put them on the same team for gym games or at separate tables for arts and crafts. KB also explained that a different child appeared confused when KB told them EC had reported they had hit EC with a mat. KB wrote that given the previous friendly interaction between EC and this child, they believed any contact was accidental.

24.   I find WC and to some extent the City rely on hearsay evidence in describing these incidents. This is because WC relies on what he says EC and EC’s mother told him happened, and the day camp leaders’ notes and statements include information from other staff members. Hearsay evidence is a statement made outside the CRT proceeding that a party seeks to use to prove the statement’s truth. The CRT may accept hearsay evidence where relevant but must weigh the evidence based on its reliability and other factors. Here, I find it relevant and generally reliable as the parties’ hearsay evidence does not, for the most part, contradict each other.

25.   I acknowledge it is upsetting for parents to hear from their child about negative interactions with other children. However, I cannot conclude the incidents described above objectively created an unsafe environment. There is no evidence of a sustained bullying campaign against EC and most of the incidents appear to have been unrelated, one-off occurrences. There is no evidence EC was physically injured or suffered mental distress such that they were unwilling or unable to participate in day camp activities following the incidents. Where staff members reported directly witnessing or being advised of incidents, I find they took proportionate action in response. WC reported that EC attended counselling sessions to deal with anxiety and trust issues following their day camp experience. However, he did not submit evidence, such as a counsellor’s statement or report, indicating EC was traumatized or otherwise negatively affected by the day camp’s unsafe environment.

26.   In these circumstances, I find WC has not proven the City breached its contract with him by failing to maintain a safe environment for EC under the codes of conduct. I dismiss this part of WC’s claim.

Does WC have standing to bring a negligence claim, and if so was the City negligent in failing to protect EC from bullying?

27.   WC claims the City was negligent towards EC. As EC is a minor, WC must show he has standing to pursue a negligence claim on EC’s behalf. Under CRT Rule 1.13, a minor must participate in the CRT’s process through a litigation guardian. There is no evidence WC submitted the CRT’s Litigation Guardian form for approval to act as EC’s litigation guardian in this dispute. WC only brought the dispute in his own name. I find WC has no claim in negligence in his personal capacity against the City with respect to the alleged bullying. So, I dismiss this aspect of his claim. However, even if I had found WC had standing to bring the negligence claim, I would not have found the City breached the standard of care, based on my finding that staff members took proportionate action in response to the incidents. In addition, I would not have found EC sustained any damage, as there is no evidence they did. So, I dismiss WC’s negligence claim.

28.   Under section 49 of the CRTA and CRT rules, a successful party is generally entitled to reimbursement of their CRT fees and reasonable dispute-related expenses. As WC was unsuccessful, I dismiss his claim for reimbursement of CRT fees. The City did not pay fees and neither party claimed dispute-related expenses.

ORDER

29.   I dismiss WC’s claims and this dispute.