Date Issued: August 8, 2023

File: SC-2022-001651

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Nakagawa v. Parent, 2023 BCCRT 659

Between:

MARI NAKAGAWA

Applicant

And:

GABRIEL PARENT

Respondent

REASONS FOR DECISION
Tribunal Member:	Micah Carmody

INTRODUCTION

1.      On March 14, 2020, a collision happened on Grouse Mountain involving the applicant skier, Mari Nakagawa, and the respondent snowboarder, Gabriel Parent.

2.      Ms. Nakagawa says Mr. Parent lost control and hit her from behind, injuring her and damaging her clothing and equipment. She claims $5,000, without providing a breakdown.

3.      Mr. Parent says before the collision he was in control and using caution but was unable to avoid a collision. He says I should dismiss the claim.

4.      Each party is 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 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.

Claim against one respondent withdrawn

8.      Ms. Nakagawa originally claimed against Mr. Parent and “Northland at Grouse Propery Holdings, Inc.” (reproduced as written). She said the run was not adequately maintained. Northland provided a Dispute Response indicating the correct spelling of its name (Northland at Grouse Property Holdings, Inc.) and denying liability. From Northland’s response, I find Northland was Grouse Mountain’s owner/operator.

9.      CRT staff advised me that during facilitation, the applicant made a settlement agreement by email with Northland and withdrew her claim against it. She applied for an amended Dispute Notice, which the CRT issued listing Mr. Parent as the only respondent. Mr. Parent did not make a third-party claim against Northland.

10.   Under the Negligence Act, if damage or loss was caused by the fault of two or more persons, I must determine the degree to which each person is at fault (see also MacDonald v. Cunniff, 2016 BCSC 559). So, even though I cannot make orders against Northland because it is no longer a party to this dispute, I may still assess Northland’s relative degree of fault because Ms. Nakagawa’s Dispute Notice raised the issue of Northland’s fault.

Request for oral hearing

11.   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.

12.   During facilitation, Ms. Nakagawa indicated that she wished to request an oral hearing. CRT staff advised her to make this request and provide reasons in her written submissions. Ms. Nakagawa did not restate her request or provide additional reasons, but I considered whether an oral hearing was necessary and appropriate. In doing so, I considered the reason communicated to me by CRT staff – that Ms. Nakagawa has concerns about communicating in English. I accept that language barriers may be a factor weighing in favour of an oral hearing. However, while Ms. Nakagawa’s submissions exhibit some minor grammatical issues and malapropisms (for example, she says the accident swallowed her eye rather than caused swelling around her eye), I had no trouble discerning the meaning behind her words.

13.   Another factor that may weigh in favour of an oral hearing is credibility being at issue. This dispute turns on credibility because the parties have different recollections of how the collision occurred. However, credibility of 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. In Yas v. Pope, 2018 BCSC 282, the court recognized that oral hearings are not necessarily required where credibility is in issue. In the circumstances of this dispute, I find that I am able to assess and weigh the evidence and submissions before me. I say this because the parties made detailed submissions about their recollections of the collision, demonstrating that they understood that the dispute turned on how the collision happened. Bearing in mind the CRT’s mandate that includes proportionality and prompt resolution of disputes, I decided to hear this dispute through written submissions.

ISSUES

14.   The issues in this dispute are:

a.    To what degree are Ms. Nakagawa, Mr. Parent, and Northland each at fault for the collision?

b.    If Mr. Parent was at least partly at fault, what are Ms. Nakagawa’s damages?

EVIDENCE AND ANALYSIS

15.   As the applicant in this civil proceeding, Ms. Nakagawa must prove her claims on a balance of probabilities, meaning more likely than not. While I have considered all the parties’ evidence and submissions, I only refer to what is necessary to explain my decision.

16.   Ms. Nakagawa has been skiing for over 30 years. She describes herself as an expert but careful skier, having instructor certification and having taught skiing in Canada, Japan, and New Zealand. She says she has skied the mountain where the collision occurred for years and had skied there 9 days in the 2019-2020 season before the collision. None of this is disputed.

17.   Mr. Parent says he has been skiing and snowboarding since he was 7 years old. Though he does not state his current age, I find from the evidence that he was a minor at the time of the collision and is now a young adult. He does not otherwise describe his snowboarding abilities except to say that he is familiar with safe snowboarding maneuvering.

18.   The collision happened on the Expo run, a groomed “blue” or intermediate run. Two ski patrollers quickly responded and completed an accident report. According to the report, the collision happened around 4:42 pm on March 14, 2020. The weather that day was clear, the light was “sharp”, the temperature was between -10 and 0 degrees Celsius, and the surface conditions were “variable.” Weather reports indicate there had been no new snow in 4 days. None of this information is disputed.

19.   The accident report said Ms. Nakagawa appeared to have suffered a right shoulder sprain. The ski patrollers applied ice and a sling and advised Ms. Nakagawa to seek medical care. A taxi transported her to Burnaby hospital, where she was treated.

20.   The accident report listed one potential witness, JB, with a phone number. Mr. Parent does not dispute that he was snowboarding with JB, a friend. Neither party provided evidence from JB or said that they attempted to contact JB, although both had JB’s contact information. I infer that JB did not observe the collision and their evidence would not have been helpful. This is supported by the accident report section about JB, which includes tick boxes for “witnessed by”, “accompanied by”, “collided with” and “other” – only “other” was ticked. I find it likely that if JB had seen the accident, the ski patrollers would have ticked the “witnessed by” box. In the circumstances, I decline to draw an adverse inference against either party for failing to obtain a statement from JB.

Analysis

21.   To succeed in negligence, Ms. Nakagawa must prove that Mr. Parent owed her a duty of care, that Mr. Parent breached the applicable standard of care, and that she sustained damage caused by the breach (see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27).

22.   It is settled law that recreational mountain users owe each other a duty of care. To establish the standard of care, Ms. Nakagawa relies on a “responsibility code” from the National Ski Areas Association, a trade association for ski area owners and operators. In brief, the applicable sections of the code are:

a.    One must always stay in control and be able to stop or avoid people or objects.

b.    People “ahead or downhill” have the right of way and must be avoided.

23.   I accept that the code represents generally accepted practices on a ski mountain and so I accept it as evidence of the standard of care. Mr. Parent does not argue otherwise, and the code is consistent with principles established in court decisions, which are binding on me. Specifically:

a.    A skier must ski “under control” at all times. A skier is not “under control” when they cannot stop or avoid collision within the range of their vision (see Abbott v. Silver Star Sports Ltd., 1986 CanLII 972 (BC SC) and Simms v. Whistler Mountain Ski Corp. Inc., 1990 CanLII 715 (BC CA)).

b.     An uphill skier must watch out for and avoid a downhill skier (see Taylor et al. v. The Queen in Right of British Columbia et al.; Ankenman et al., Third Parties, 1978 CanLII 2063 (BC SC)).

24.   I used the terms “ski” and “skier” above for simplicity, but the principles apply equally to snowboarders. There are other principles, but I find they are not relevant here. With that, I turn to the parties’ description of the moments leading up to the collision.

25.   Ms. Nakagawa says the following. She was in control and skiing with moderate speed, making consistent short turns down the run. Suddenly, she was hit from behind by Mr. Parent. She did not see him at all before the collision because he came from behind her. One of her skis released from its binding and her goggles and hat came off. She hit her face on the snow. She found herself lying in the snow, unable to move, with pain all over her body. She looked back and saw Mr. Parent uphill from her.

26.   In contrast, Mr. Parent says the following. He was snowboarding from side to side, maintaining a proper view of his surroundings and travelling at an appropriate speed. As he was turning right, with his chest and body facing downhill, Ms. Nakagawa was skiing downhill and collided into him. She was further uphill just before the collision. Despite shoulder checking, Mr. Parent had limited vision to uphill traffic because he was facing downhill. He did not see Ms. Nakagawa until it was too late to avoid a collision, although he did his best to do so. He was in control at all times.

27.   Because there is no evidence from a non-party who observed the collision and no expert evidence to tie the injuries to the collision mechanics, I must determine whose version of events is more credible on a balance of probabilities.

28.   The first question is whether Ms. Nakagawa was downhill from Mr. Parent immediately before the collision.

29.   The ski patrollers documented that “snowboarder hit pt [patient] from behind, pt fell onto right shoulder, felt pain immediately, also in both knees & both hips, pt stayed on ground until patrol came.” However, I find the ski patrollers did not see the collision and simply documented what Ms. Nakagawa told them. That said, Ms. Nakagawa’s description of the collision is consistent with how she explained it to the ski patrollers, which shows that she has not changed her story. I accept that she felt the brunt of the impact from behind, noting that Mr. Parent does not specially describe the point of contact with Ms. Nakagawa (such as her back, front, or side)

30.   However, I find that being hit from behind does not necessarily mean Ms. Nakagawa was downhill from Mr. Parent and there to be seen. It is equally plausible, as Mr. Parent describes, that Ms. Nakagawa only came into view as he completed a right turn, and the two were approximately level with each other, but she with her back to him. Ultimately, I find Ms. Nakagawa has not proved that Mr. Parent was uphill relative to her and failed to yield the right of way to her.

31.   The second question is whether Mr. Parent was skiing “under control”. As noted, Mr. Parent says he was snowboarding under control leading up to the collision. I note that in the Dispute Response Mr. Parent said he was unable to avoid the collision in part because of the snow conditions, but he does not elaborate on this in submissions or provide evidence about the snow conditions. In any event, the obligation to ski in control is not lessened by poor conditions. Skiers and snowboarders of any ability are expected to adjust their skiing when conditions require it (see Abbott at paragraph 32).

32.   That said, other than the fact that the parties collided, there is no evidence that Mr. Parent was snowboarding out of control. The failure to avoid the collision does not mean Mr. Parent was out of control because I accept that he had little time to avoid the collision. Not every ski mountain collision can be avoided, and not every collision is caused by someone’s negligence. This is not a case, like Gilsenan v. Gunning, 1982 CanLII 3139 (ON SC), where one party was racing a friend and an inference could be drawn of excessive speed and therefore a lack of control that breached the standard of care.

33.   As the applicant, Ms. Nakagawa bears the burden of proving that Mr. Parent breached the standard of care of a recreational mountain user. I find that she has not done so. She has not shown on a balance of probabilities that Mr. Parent was uphill and failed to yield to her, or that he was skiing out of control. I find this was an unfortunate collision that, on the evidence before me, was not the result of either party’s negligence. With that, I dismiss Ms. Nakagawa’s claim.

34.   As I have not found Mr. Parent negligent, the issue of several liability does not arise and I do not have to determine Northland’s degree of fault. However, as there was no evidence that Northland failed to properly groom or maintain the run where the collision happened, I would not attribute any fault to Northland for the collision.

35.   Neither party paid any CRT fees or claims any dispute-related expenses, so I make no order.

ORDER

36.   I dismiss Ms. Nakagawa’s claims and this dispute.