Date Issued: January 31, 2024

File: SC-2022-010160

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Layfield v. Crawford & Company (Canada) Inc., 2024 BCCRT 98

Between:

RAEANNA K LAYFIELD and PATRICK BOGDAN

ApplicantS

And:

CRAWFORD & COMPANY (CANADA) INC., SHELL CANADA LIMITED SHELL CANADA LIMITEE, and ARS ENTERPRISES INC.

Respondents

REASONS FOR DECISION
Tribunal Member:	Alison Wake

INTRODUCTION

1.      This dispute is about allegedly contaminated fuel. The applicants, Raeanna K Layfield and Patrick Bogdan, purchased diesel fuel from ARS Enterprises Inc. (ARS), a retailer for Shell Canada Limited Shell Canada Limitee (Shell). The applicants say this fuel was contaminated, and caused their truck to break down.

2.      The applicants claim $3,866.94 for the fuel cost, towing and repair expenses, their time spent communicating with the respondents, and a fuel contamination test. Mrs. Layfield represents both applicants.

3.      The respondents deny liability, and say they have monitoring and testing mechanisms in place to prevent contaminated fuel. All respondents are represented by an employee of Crawford & Company (Canada) Inc. (Crawford), which insures Shell and ARS.

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 says that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly.

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. 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 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.

ISSUES

7.      The issues in this dispute are:

a.    Have the applicants proved that the fuel supplied by the respondents was contaminated and caused their truck to break down?

b.    If so, must the respondents pay the applicants’ claimed damages?

EVIDENCE AND ANALYSIS

8.      In a civil proceeding like this one, the applicants must prove their claims on a balance of probabilities (meaning more likely than not). While I have read all the parties’ submitted evidence and arguments, I have only referred to those necessary to explain my decision.

Crawford’s status

9.      Crawford says it is Shell’s and ARS’s insurer, and is not a proper respondent to this dispute. I agree. The applicants have not explained why Crawford should itself be liable for damage caused by the allegedly contaminated fuel.

10.   While Crawford may provide insurance coverage to the other respondents in the event they are liable for the applicants’ claims, that is a matter between Crawford and the other respondents. I find Crawford is not a proper respondent to this dispute, and I dismiss the applicants’ claims against it. Where I refer to the respondents below, I am referring to Shell and ARS only.

Contaminated fuel

11.   The applicants undisputedly purchased 30.2 litres of diesel fuel from a Shell station operated by ARS on November 15, 2021. This is supported by a receipt in evidence.

12.   The applicants say that after fueling their truck, the truck broke down and had to be towed to a shop for inspection. They do not say exactly when the truck broke down. However, I infer that it was not immediate, because the applicants say that later the same day they drove past the same Shell station and saw that it was closed, with its signs set to zero. The applicants say this was during the height of local floods, which resulted in many fuel stations running out of fuel. So, they say that the most likely scenario is that they received fuel from the bottom of the tank, which contained water and sediment. I find this argument speculative, as the applicants provided no evidence to support it.

13.   The applicants bear the burden of proving the respondents’ fuel was contaminated and caused their truck to break down. I find these are technical matters which are outside ordinary knowledge, so they must be proved by expert evidence: see Bergen v. Guliker, 2015 BCCA 283.

14.   The applicants submitted an invoice from Kirkpatrick Auto & Fleet Repair. The invoice identifies the service advisor and technician who worked on the applicants’ truck, but does not list their experience or qualifications as required by CRT Rule 8.3(2). So, I decline to accept the invoice as expert evidence.

15.   Even if I had accepted the Kirkpatrick invoice as expert evidence, I find it does not particularly assist the applicants. The invoice notes that the fuel filter was “filled with dirty fluid” and a sample taken from the fuel tank was “full of contaminants and water” but does not explain how this affected the truck’s operation.

16.   The applicants say that the respondents’ fuel is the only possible source of contamination, but I find this is not supported by their evidence. The Kirkpatrick invoice does not identify the likely source of the water or contaminants in the fuel, and does not explain whether they could have been present before the applicants purchased fuel from the respondents. Further, the applicants do not explain whether their fuel tank was empty before purchasing the respondents’ fuel, or how recently they had purchased fuel elsewhere.

17.   While the Kirkpatrick invoice says the applicants reported that “the truck died just after filling”, it shows that the applicants’ appointment was on December 2, 2021, which is over two weeks after the fuel purchase. The applicants do not explain how soon the truck broke down after they purchased fuel from the respondents, but as noted above, they were still able to drive it later that day. So, I find the Kirkpatrick invoice does not prove that the fuel was contaminated when the applicants purchased it, or that this caused the applicants’ truck to break down.

18.   The applicants also submitted a February 18, 2022 report from Finning Canada Ltd.’s Fluid Analysis Laboratory. The report says that the sample provided has 30 percent water, and contains “trace of fine black precipitate.” It says that the sample “does not conform to standard diesel properties” and recommends that the fuel tank be drained and flushed.

19.   Again, this report does not include the author’s qualifications or experience, and so I decline to consider it as expert evidence. In any event, this report also does not identify a likely contamination source or say that the fuel could not have become contaminated after being in the truck’s tank.

20.   For their part, the respondents deny that the fuel the applicants purchased was contaminated. They say that the station in question sells an average of 25,000 litres of fuel per day, and that they have received no other complaints from customers before or after this incident. They say that they have various safety mechanisms in place to prevent contaminated fuel from being sold.

21.   The applicants expressed concerns with the reliability of some of the respondents’ evidence. I agree that some of the respondents’ evidence should be given no weight, such as its manual dip test results, which are undated. However, on balance I find that the applicants’ evidence does not establish that the respondents sold the applicants contaminated fuel, or that this caused the applicants’ truck to break down. I find the applicants have not met the burden of proving their claims, and so I do not need to describe the respondents’ evidence in detail here.

22.   Lastly, the applicants say the respondents assured them that if they took their truck to a shop and had it fixed, the respondents would compensate them. However, they provided no evidence, such as communications from any of the respondents, in support of this argument. I find there is no evidence that the parties had a binding agreement for the respondents to compensate the applicants for their truck repairs. So, I must dismiss the applicants’ claims.

CRT FEES AND EXPENSES

23.   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. The applicants were unsuccessful, so I dismiss their claim for CRT fees.

24.   The applicants claim an unspecified amount for their time spent dealing with this dispute. I dismiss this claim, as the applicants were unsuccessful. Further, CRT Rule 9.5(5) says that the CRT will not order one party to pay another party compensation for time spent except in extraordinary circumstances, which I find are not present here. So, I would have dismissed the applicants’ expense claim in any event.

25.   The respondents did not pay CRT fees or claim dispute-related expenses, so I make no order for them.

ORDERS

26.   I dismiss the applicants’ claims and this dispute.