Date Issued: November 24, 2023

File: SC-2023-000695

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Kamloops Precision Machining Ltd. v. Dutchin, 2023 BCCRT 1022

Between:

KAMLOOPS PRECISION MACHINING LTD.

Applicant

And:

BRIAN DUTCHIN

Respondent

REASONS FOR DECISION
Tribunal Member:	Megan Stewart

INTRODUCTION

1.      This dispute is about alleged misuse of a company fuel card and failure to return company property.

2.      The applicant, Kamloops Precision Machining Ltd., says the respondent, Brian Dutchin, misused a company fuel card while the applicant employed him. It also says the respondent failed to return company property, an “HVC Lower Cone” (the cone), upon termination of his employment contract. The applicant claims a total of $4,532.77, made up of $1,131.18 for reimbursement of company fuel card charges and $3,401.59 for the cone.

3.      The respondent denies misusing the fuel card as alleged, and says he returned the cone before his employment was terminated.

4.      The applicant is represented by an employee. The respondent 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.

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, the parties in this dispute call into question each other’s credibility. 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. Bearing in mind the CRT’s mandate that includes proportionality and prompt resolution of disputes, I decided to hear this dispute through written submissions.

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.

9.      The applicant’s submissions refer to a witness statement, fuel card statements, and other evidence that show it clearly intended to rely on this evidence in support of its claims. For reasons that remain unclear despite seeking clarification from the applicant, that evidence was not uploaded to the CRT’s system. In any event, through CRT staff, I asked the applicant to provide the evidence (again), which it did. The respondent was offered the opportunity to respond to the applicant’s evidence, which he did. So, I find there was no procedural unfairness in admitting this late evidence. I find the evidence and the response relevant to the dispute, and I have considered them in coming to my decision below.

ISSUE

10.   The issue in this dispute is whether the applicant is entitled to compensation for the missing cone or for misuse of the fuel card, or both.

EVIDENCE AND ANALYSIS

11.   In a civil proceeding like this one, the applicant must prove its 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 that I find necessary to explain my decision.

12.   In June 2022, the applicant hired the respondent as a sales representative. In October 2022, the applicant terminated the respondent’s contract for reasons that included misuse of a company fuel card. None of this is disputed.

13.   The parties’ signed contract of employment said the applicant would provide the respondent with a fuel card for “business related gas”. I find it was an implied term of the contract that the respondent would return all company property to the applicant at the end of his employment.

14.   The applicant says the respondent misused the company fuel card to pay for gas for personal use of his vehicle. The applicant says that after the respondent was in a car accident on August 9, 2022, he no longer had a vehicle to use for work, but continued to use the fuel card to pay for gas. In contrast, the respondent says he used his girlfriend’s car for work. I infer the respondent means he used the company fuel card to pay for gas for his girlfriend’s car when he used it for work.

15.   However, the respondent also says he had discussions with the applicant’s financial controller about his gas purchases. He says he asked her if she would like him to pay back any charges, but she declined. The respondent says the financial controller told him “not to worry about any payments” if he returned the fuel card, paid for his own gas, and submitted expense claims as needed.

16.   While the applicant does not explicitly deny the respondent’s reported discussions with its financial controller, there is no documentary evidence of these discussions, such as a letter or email confirming the financial controller authorized forgiveness of personal charges the respondent made on the company fuel card. In addition, I find the respondent’s evidence about the fuel charges inconsistent, and so unreliable. I say this because in the Dispute Notice, the respondent says he used the fuel card for “business use only”, but in submissions, he suggests he came to an agreement with the applicant’s financial controller about the applicant forgiving personal gas charges he made to the fuel card.

17.   For its part, the applicant submitted fuel card statements on which it marked the respondent’s business fuel charges. The other fuel charges on the statement add up to $1,131.18, which the applicant claims is the amount of fuel the respondent charged to the company fuel card for personal use. The applicant says the respondent only went on one business trip soon after he was hired and had a meeting 2 days before his employment was terminated, but that the fuel card was being used frequently as reflected by the statements.

18.   Given the respondent’s inconsistent evidence about his use of the fuel card, and as he does not dispute the $1,131.18 the applicant says he charged to the card for personal use, I find the respondent used the company fuel card other than for “business related gas”, contrary to his employment contract. So, I order the respondent to reimburse the applicant $1,131.18 for fuel he charged to the card for personal use.

19.   I turn to the applicant’s claim for reimbursement for the cone. The applicant says it asked the respondent to return all company property including “any physical parts” in its October 18, 2022 employment termination letter. In an October 19 email to the respondent, the financial controller asked him to return a set of calipers “as discussed”, which the respondent undisputedly did, without mentioning the cone. Then, on January 3, 2023, the financial controller emailed and then posted a demand letter requesting that the respondent pay the applicant $3,401.59 for the cone and $1,131.18 for the fuel. The applicant says the letter went unanswered and the respondent is still in possession of the cone.

20.   The respondent disagrees, and says he returned the cone to the applicant’s employees, RB and TG, before his car accident in August 2022.

21.   In support of this part of its claim, the applicant provided a January 12, 2023 statement from RB. In their statement, RB said that one of their jobs was assembling cones. They said that in the second or third week of July 2022, the respondent asked for a cone to use as a sales sample. RB said because they assembled the product themselves, they were certain the respondent had taken it offsite. They also said they were certain the product was not returned to the shop, because if it had been, they would have known about it.

22.   I find RB’s statement vague, as it only gives a general timeframe about when the respondent took the cone out of the shop. In addition, RB does not say that they track company property that is removed from the shop by employees, for example by way of a product log or another form of asset tracking. Instead, RB’s statement suggests that they simply would have remembered if the respondent had returned the cone. I find this is an unreliable way to track expensive company property, particularly as RB’s statement about their memory of what happened was dated approximately 6 months after they say the respondent removed the cone from the shop. In these circumstances, I find RB’s statement does not prove the respondent failed to return the cone to the shop.

23.   In addition, the applicant submitted a December 29, 2022 internal quote for the cone from the shop that indicated “lost cone in crash (Brian Dutchin)”. I find this internal record does not match RB’s statement, made only 2 weeks later, that suggests the respondent simply did not return the cone when his employment was terminated. That is, I find losing a cone in a car accident is different to not returning company property on termination of an employment contract.

24.   On balance, I find the applicant has not proven the respondent failed to return the cone on termination of his employment, contrary to his employment contract.

25.   Separate from the contractual relationship between the parties, I also find the law of bailment applies in this situation. A bailment is the temporary transfer of property from the “bailor” (in this case, the applicant), to the “bailee” (in this case, the respondent). The bailor must prove that damage or loss to the property happened during the time of the bailment. If damage or loss is proven, the bailee must show it was not caused by their negligence. In caring for a bailor’s goods or possessions, the bailee must exercise reasonable care in all the circumstances (see: Harris v. Maltman and KBM Autoworks, 2017 BCPC 273 and Pearson v. North River Towing (2004) Ltd., 2018 BCPC 229). Here, given the conflicting evidence about what happened to the cone, including whether it was returned to the shop, I find it unproven that the cone was damaged or lost while in the respondent’s possession. So, I find there is no basis for finding the respondent failed to exercise reasonable care while the cone was in his possession. In short, I find the respondent is not liable in bailment for the cone.

26.   Overall, I find the applicant has not proven its claim for reimbursement of the cone, and I dismiss it.

27.   The Court Order Interest Act (COIA) applies to the CRT. The applicant is entitled to pre-judgment interest on the $1,131.18 damages award from January 3, 2023, the date the applicant requested repayment of the fuel charges for personal use, to the date of this decision. This equals $24.69.

28.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. Since the applicant was partially successful, I find it is entitled to reimbursement of half its paid CRT fees, which is $87.50.

29.   The applicant also claims $13.59 in dispute-related expenses for sending the respondent a hard copy of the January 3, 2023 demand letter by registered mail. I find this is not a reasonable dispute-related expense that is directly related to the conduct of the CRT proceeding (see CRTA section 49 and CRT Rule 9.5(2)) for 2 reasons. First, the applicant incurred the expense after it had already emailed the letter to the respondent at an email address the parties had previously used to correspond, so I find it was unnecessary. Second, the expense is for mailing a demand letter before the application for dispute resolution was filed, which I find is not directly related to this proceeding. In these circumstances, I dismiss the applicant’s claim for reimbursement of this expense.

ORDERS

30.   Within 30 days of the date of this order, I order the respondent to pay the applicant a total of $1,243.37, broken down as follows:

a.    $1,131.18 in damages, for reimbursement of fuel charges made contrary to a contract of employment,

b.    $24.69 in pre-judgment interest under the COIA, and

c.    $87.50 in CRT fees.

31.   The applicant is entitled to post-judgment interest, as applicable.

32.   I dismiss the balance of the applicant’s claims.

33.   Under section 58.1 of the CRTA, a validated copy of the CRT’s order can be enforced through the Provincial Court of British Columbia. Once filed, a CRT order has the same force and effect as an order of the Provincial Court of British Columbia.