Zaworski v. ICBC Date:, 2017 BCPC 294

Citation: Zaworski v. ICBC Date: 20171002 2017 BCPC 294 File No: 1646 Registry: Mackenzie IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: LINSIE ZAWORSKI CLAIMANT AND: INSURANCE CORPORATION OF BRITISH COLUMBIA DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. K. KEYES Appearing on her own behalf: L. Zaworski Counsel for the Defendant: R. Stewart Place of Hearing: Prince George , B.C. Date of Hearing: October 21, December 12 & 13, 2016; January 9, 2017 Date of Judgment: October 2, 2017 INTRODUCTION [ 1 ] On February 21, 2015, Mr. Miller, the spouse of the Claimant, Linsie Zaworski, was driving her 2005 Dodge Caravan

minivan. He was in an accident. Ms. Zaworski called ICBC immediately thereafter, followed their instructions to remove her personal valuables, remove the license plates and leave the van where it was. She was told they would dispatch a tow truck right away. At some point thereafter, her van was towed from the accident scene by Giver A Yank Towing (a towing company dispatched by ICBC) and on February 24, 2015, it was delivered to PJ Collision Ltd., the inspection facility designated by ICBC. The van was inspected for damage by Mr.

Martens, the owner of PJ Collision Ltd., who was the designated ICBC damage estimator. He took some photos of its condition while he inspected it on February 25, 2015. After he inspected it, it was towed by Giver A Yank Towing to their yard where it was locked up inside their compound. Based on the inspection made by Mr. Martens, and the value attributed to the van by ICBC, the van was written off. [ 2 ] Ms. Zaworski entered into negotiations with ICBC about the value of her vehicle.

She was unsatisfied with the amount offered by ICBC, but eventually they signed an Owner Retention Agreement which provided that ICBC would pay cash to Ms. Zaworski less certain deductions and Ms. Zaworski would keep her van. Ms. Zaworski was not informed of the location of her vehicle, nor permitted to inspect it prior to signing the Owner Retention Agreement on March 23, 2015. On that day, she was told to attend to pick up the vehicle from Giver A Yank Towing in Vanderhoof. [ 3 ] When Ms.

Zaworski went to the Giver A Yank compound, she discovered that her van was not in the same condition it had been in when the accident occurred. Indeed, photographs taken by Ms. Stringer of Giver A Yank Towing at their yard independently proved it was not in the same condition as it had been when inspected by Mr. Martens. Various parts on the van had been dismantled and damaged and other parts had been removed altogether. Ms.

Zaworski’s claim is for the value of the parts she says were removed from the vehicle while it was in the custody of ICBC or its agents. [ 4 ] The ICBC position in response is multifold; firstly, that if anything went missing from the van, that is not the responsibility of ICBC because the van was not in the care or control of ICBC; in the alternative, that nothing went missing; secondly, that the tires the Claimant had were not Hankook tires (as she claimed) and those found on the van when the Claimant picked it up were the same tires and rims on the van at the time of the accident; thirdly, that ICBC denies the amounts claimed; and fourthly, if ICBC is responsible for parts going missing while the van was in the care of ICBC, then the Claimant suffered no loss because she was already compensated by the Owner Retention Agreement under which she received $7,648.57, after deductions for deductible and salvage fees.

In submissions, counsel for ICBC also argued that, if ICBC is required to pay for the missing parts, then Ms. Zaworski should not be put in a better position now than she would have been had the vehicle been given back to her in the same condition as immediately after the accident; therefore, value for the parts should not be for new parts, as she seeks. History of the Proceeding [ 5 ] When Ms. Zaworski filed this Claim, she served ICBC as required. ICBC did not file a Reply, so Ms. Zaworski applied for a default order. There was a hearing and Judge Gray granted the Default Order. When Ms.

Zaworski sought to collect on the Default Order, ICBC applied to set aside the Default Order on the basis that its failure to file a Reply was due to inadvertence and that there was a triable case. ICBC went further than that - it alleged that Ms. Zaworski had made a fraudulent claim. At the hearing of the application to set aside the Default Order, it became clear that the evidence filed by ICBC in support of the allegation of fraud pertained to some other person’s claim and the allegation of fraud was entirely baseless.

However, the Court was ultimately satisfied that the Default Order should be set aside and the matter was set for hearing. The hearing occurred before me over several days: October 21, 2016, December 12 and 13, 2016, and January 9, 2017. [ 6 ] In order to decide whether Ms. Zaworski is entitled to compensation for parts she says were stolen from or damaged on her van, and if so, how much is she entitled to, I must first decide whether I am satisfied on a balance of probabilities that her parts were stolen or damaged.

After making findings of fact in that regard, I will address the question of whether ICBC had care or control of the van at the pertinent time. 1. Were the jack and accessories, rear wiper assembly and motor removed and the steering column disassembled after the accident occurred? [ 7 ] I find that the photographs taken of the vehicle by Mr. Martens at PJ Collision clearly establish that the steering column was assembled and the rear wiper assembly and motor were in place and undamaged on Ms. Zaworski’s van when it was inspected by Mr. Martens on February 25, 2015.

It is equally clear that the steering column had been disassembled and the rear wiper assembly and motor had been removed when Ms. Zaworski attended to pick up the vehicle on March 23, 2015. Ms. Zaworski testified that the jack and accessories were in the van when the accident occurred and were missing when she picked it up. [ 8 ] I find that it is patently obvious from the photos taken by Mr. Martens several days later in the PG Collision yard that the rear window wiper and motor assembly were present in place on the vehicle. Both Mr. Martens of PJ Collision and Ms.

Stringer of Giver A Yank testified that no parts were removed by them or any of their employees during the time the van was in their custody. However, it is obvious that the parts must have been removed while the van was in the custody of PJ Collision or Giver A Yank, because Mr. Martens’ photos show the rear wiper and motor in place at the PJ Collision yard on February 24, 2015, and Ms. Stringer’s photographs show the rear wiper and motor missing. [ 9 ] I note that Ms. Stringer swore an Affidavit and testified that she took photos of the van in her yard on March 25, 2015, in response to a call from Mr.

Kole of ICBC who was responding to Ms. Zaworski’s complaints of parts missing. Those photos show that the rear wiper and motor mechanism were missing from the van. Since the van was towed away from her yard on March 23, 2015, Ms. Stringer could not have taken the photos on March 25, 2015; she is clearly in error with respect to the date she took the photos. Obviously Ms. Stringer must have taken the photos prior to the van being towed away by Ms. Zaworski on March 23 - which means she could not have taken them in response to a request from Mr. Kole who was investigating Ms.

Zaworski’s complaint to him made after she picked up the van on the evening of March 23, 2015. While Ms. Stringer’s real reasons for taking the photos must remain a mystery, her photos do corroborate Ms. Zaworski’s complaint that the rear wiper arm and motor were missing prior to Ms. Zaworski picking up the van.

[ 10 ] I accept Mr. Miller’s evidence that the rubber boot enclosing the steering column had been slashed, the actuator arm was damaged and parts from the steering column had been removed, rendering the steering column unusable. I accept his evidence that none of that damage occurred as a result of the accident when he had been driving the vehicle. Mr. Martens’ evidence, including the photos he took, corroborates the evidence of Mr. Miller. I accept Ms. Zaworski’s evidence that the jack and accessories were in the van when she left it at the roadside and that they were missing when she went to pick up the van. 2.

Did Ms. Zaworski have good rims and Hankook tires on the van at the time of the accident and, if so, were they exchanged for the rims and tires found on the vehicle by persons unknown after the accident? [ 11 ] The photos taken by Mr. Martens satisfy me that the tires on the van when the photos were taken are Champiro tires. The rims shown are obviously used rims, and the wheel balancing weights are visible in place on the exterior of the rims. [ 12 ] Ms.

Zaworski testified that the tires and rims she found on her van when she went to pick it up at the Giver A Yank Towing yard were not the tires on her vehicle at the time of the accident. She testified that the rims she found on the van when she picked it up were the same type of rims as her own, which are all the same for that model of van. However, both she and Mr. Miller testified that the rims in place when they picked up the van were chipped, rusted, worn and warped (so much so, Ms. Zaworski said that on one of them the tire will not remain inflated).

In addition, she said the brakes and rotors on her van were immaculate, having been redone recently, but the ones on the van when she picked it up were corroded and rusted. [ 13 ] She said although her rims were used and as old as the van, they were in very good condition and were undamaged. She said she always had the wheel balancing weights placed on the interior of the rims for esthetic reasons and because that position reduced rust damage to the rims. [ 14 ] She said her tires were Hankook studded tires purchased the previous fall from Tire Capital.

She produced a document from Tire Capital which she said was the invoice for the tires, studded and installed, in the amount of $700.00. Mr. Miller testified that he went to the Tire Capital shop and was present when the tires were installed. He testified that he was given the invoice and paid for the tires that day. The tires were on the van until the accident in February, a period of approximately five months. However, although the tires on the van when Ms.

Zaworski picked it up were also studded snow tires, she testified that they were old and the studs were worn down to nothing and they were not Hankook tires. [ 15 ] It was repeatedly suggested to Ms. Zaworski and submitted to the Court by Mr. Stewart, counsel for ICBC, that Ms. Zaworski was falsely claiming that she had Hankook tires on her van when in fact she had Champiro tires (which look similar but are considerably less expensive than Hankook) and, moreover, that the invoice she submitted for the Hankook tires was not an invoice but merely a quote or estimate from Tire Capital. Oddly, despite Mr.

Miller’s evidence that he was the person who dealt with Tire Capital, and testified that he received and paid the invoice and was present for the installation of the Hankook tires on the van in September 2014, it was never suggested to him that his evidence in that regard was false, nor that the invoice he said he received and paid for was in fact a “quote”. The Defendant did not produce any witness from Tire Capital or anywhere else, to support that contention. [ 16 ] Mr. Stewart directed the Court’s attention to two different copies of the invoice from Tire Capital.

One copy is found at Tab 10 of Exhibit 5, the Defendant’s Book of Documents. Mr. Grysdale, an ICBC adjuster, testified that Ms. Zaworski emailed him a copy of that document after he was assigned the file in March 2015. He noticed that the invoice appeared to be dated September 6, 2015, but he treated it as if it were dated September 6, 2014, on the assumption that was a typographical error, since September 6, 2015 had not yet occurred.

On the copy submitted to Court on behalf of the Claimant, both before Judge Gray at the default hearing and before me, the copy of the invoice appears to have some additional marks on the date making it appear to be September 6, 2014. It does appear as if the handwritten date has been altered. [ 17 ] Ms. Zaworski agrees that an additional mark is present on the copy submitted to the Court in Exhibit 1, but states that she did not alter it and has no explanation for its appearance. Mr. Stewart submits that because there appears to be an alteration in the date on the invoice I should conclude that Ms.

Zaworski did not, in fact, purchase Hankook tires. It follows from that position that I should conclude the alteration of the invoice was for a fraudulent purpose and that the claim for Hankook tires is also fraudulent. [ 18 ] I draw no such inference from the apparent alteration of this invoice. Mr. Grysdale concluded when he received the invoice in March 2015, that the “2015” notation was in error, since that date had not yet occurred. I find that conclusion was entirely reasonable.

Although I have no explanation as to how or when the “2015” was changed to “2014” on the invoice, all that change did was to have the invoice reflect the reality of the situation. Whoever did it, it was a correction, not a fraud. I find that the invoice was, in fact, given to Mr. Miller in September 2014, and that the “2015” notation was an error. [ 19 ] I find that Ms. Zaworski had purchased new Hankook studded tires in the fall of 2014, and that those tires were on her van when the accident occurred. I find the Hankook tires were not on Ms. Zaworski’s van when Mr.

Martens took the photos of the van on February 25, 2015, four days after the accident and one day after it had been towed into PJ Collisions’ yard. Rather, as I have found earlier, the tires on the van at that point were Champiro tires. I heard the evidence of both Mr. Martens and Ms. Stringer that no one at their establishments took any items off the van and that there was no sign of forced entry to their compounds. Nevertheless, it is clear that parts were removed and disassembled by mysterious persons unknown while the van was in the care of PJ Collision, or Giver A Yank, or both.

Given that situation, there is no reason for me to not to accept that Ms. Zaworski’s tires and rims were exchanged for cheaper worn out substitutes while the van was in the care of PJ Collision or Giver A Yank. [ 20 ] I accept Ms. Zaworski’s evidence that the rims, brakes, rotors, and tires on the van when Mr. Martens took the photos were not the rims brakes and rotors that she had on the van when the accident occurred, because the wheel weights are clearly on the exterior of the rims and not on the inside as she and Mr. Miller chose to place them to maintain that vehicle.

I accept that the rims, brakes, and rotors found on the van when she picked it up were in poor condition and that her own were in good, although used condition. 3. Was the van in the care of ICBC or its agents when the parts were stolen or disassembled? [ 21 ] Ms. Zaworski testified that immediately after the accident, she telephoned ICBC to report it and open her claim. She testified

that she received instructions to remove her personal items and the licence plates from the van and leave it where it was. She followed those instructions. I have found that the parts were removed from her van after she complied with the instructions from ICBC. [ 22 ] Nevertheless, ICBC denies that the van was in the care or control of ICBC and argues that ICBC is not, therefore, liable for any loss. Counsel for ICBC did not direct me to any legislation or any case authority for that position. [ 23 ] Ms. Zaworski directed my attention to Rogozinsky v.

ICBC, 2004 BCSC 423 , which dealt with a claim for damages resulting from the loss of a stereo and damage to speakers in a vehicle which was kept in an ICBC yard after an accident. Mr. Rogonzinsky had failed to comply with S. 67 of the Motor Vehicle Act by failing to advice the police investigators as to the identity of the driver. That failure by Mr. Rogozinsky’s prejudiced ICBC and as a result the court found that ICBC was not liable to him for the damage to his vehicle caused by the accident.

However, while the vehicle was at the ICBC tow yard, the stereo in it “went missing” and the stereo speakers were damaged by water beyond repair. Because Mr. Rogozinski had violated his contract of insurance with ICBC, he could not recover under his insurance for the loss, but the court held that ICBC was still obliged to compensate him for the loss of those items because it failed to take proper care of the vehicle when it was in the care of ICBC. Mr.

Justice Burnyeat said: [50] I cannot find that ICBC is a Bailee for reward but I am satisfied that it is a gratuitous Bailee of what was left in the Honda and what was not removed by Mr. Rogozinzky or others immediately after the accident. I find there was an obligation on ICBC to take the appropriate degree of care which a reasonably prudent person would exercise with respect to the goods in a vehicle and that they failed to do so. [60] All of the windows in the vehicle were knocked out of the Honda as a result of the accident.

Accordingly, it was foreseeable that the contents of the vehicle would be damaged if the Honda was left unprotected from the elements. As well, I find that the Honda had the stereo in it when it was delivered to ICBC premises. In those circumstances, ICBC was under an obligation to take appropriate measures to protect the vehicle and its contents from theft. Because I find it failed to do so, ICBC must be liable for the losses to Mr.

Rogozinsky. [ 24 ] This decision is of assistance to me in that it demonstrates that ICBC has an obligation to safeguard the vehicles and their contents once it takes control over them, even where there is no contractual obligation under an insurance policy between ICBC and the owner of the vehicle. [ 25 ] The obligations of ICBC in the case before me go well beyond those pertaining to a gratuitous bailee. Ms. Zaworski did have a valid contract of insurance with ICBC. The contract of insurance between ICBC and Ms. Zaworski created obligations on both sides. Ms. Zaworski paid ICBC for insurance.

She was obliged to report the accident promptly and comply with the instructions of ICBC, which she did. ICBC was obliged to take possession of the van and to treat it with proper care. [ 26 ] Ms. Zaworski was told by ICBC to leave her van at the roadside and that her van would be towed to an ICBC facility immediately. Apparently, ICBC failed to fulfil that promise. I have no evidence before me as to whether ICBC dispatched a tow truck immediately or not, but what is clear is that Giver A Yank Towing only delivered the van to PJ Collision on February 24, 2015, three days after the accident.

I don’t know whether the van was left at the roadside or taken to Giver A Yank’s tow yard in the meantime. I don’t know whether the jack and accessories and the Hankook tires and Ms. Zaworski’s rims, brakes and rotors were stolen from the van and replaced with older rims, brakes, rotors and Champiro tires at roadside, or while in the possession of Giver A Yank before delivery to PJ Collision, or at PJ Collisions’ yard prior to the photos being taken on February 25, 2015, but to my mind it makes no difference.

The theft of those parts stands on the same footing as the theft of the rear window wiper and motor and disassembly of the steering column, all of which clearly occurred after the photos of the van were taken by Mr. Martens at PJ Collision. All of these events occurred after ICBC gave instructions to Ms. Zaworski to leave the van where it was after the accident. At that point ICBC took control of the van. Ms Zaworski was obliged to follow their instructions. ICBC was obliged to safeguard her vehicle as if it were their own: Harris v.

Maltman and KBM Autoworks, 2017 BCPC 273 . [ 27 ] The Defendant led evidence from Mr. Martens that the PJ Collision yard was fenced and had security cameras and that Mr. Martens was not aware of anyone trying to get into their yard or get into vehicles. Ms. Stringer testified that the Giver A Yank yard has a six foot high fence with three strands of barbed wire at the top and that the gate was locked. She admitted that although there are signs saying that there are security cameras, there are none.

She said the lock on the compound did not appear to have been tampered with. [ 28 ] I infer from this evidence that no one from outside of either establishment broke in and stole parts from Ms. Zaworski’s van. I also note Ms. Zaworski’s evidence that whoever took the wiper, motor, jack and accessories had to have possession of a key since those things were accessible only from inside the van and the van showed no signs of having been broken into. Since Mr. Martens took photos of the interior of the van, I infer that persons at PJ Collision had access to the interior of the van without having to break into it. Mr.

Stewart suggested that it would be highly unlikely that a thief at the roadside would switch the rims and tires, as opposed to simply stealing them. I agree. However, a thief with access to a yard containing other damaged vehicles might find it quite convenient to do so, particularly if the theft might go unnoticed thereby. [ 29 ] In the absence of any evidence suggesting an intruder committed the thefts, I conclude that whoever removed, exchanged, or dismantled the parts, it was someone at either establishment who was authorized by that establishment to be there.

I find that the obligation of ICBC to safeguard the van as if it were its own does not authorize its agents to help themselves to its parts or strip it of its valuables. ICBC failed in its obligation to safeguard Ms. Zaworski’s vehicle. [ 30 ] I find that these thefts occurred while ICBC was responsible for the van and ICBC must answer to Ms. Zaworski for the loss of those items.

To hold otherwise would render every ICBC contract of insurance, for all the British Columbians who have no choice but to obtain their insurance through ICBC, absolutely meaningless. [ 31 ] As an aside, it seems to me that even if there had been no motor vehicle accident and these items had all been stolen by persons unknown, such thefts would normally be covered by her insurance contract with ICBC. Although I have no direct evidence on this point, ICBC did not suggest in its pleadings that Ms.

Zaworski did not have insurance coverage for theft, so it should make no difference in whose custody the vehicle was when the thefts occurred - the thefts should nevertheless be covered by the insurance contract.

4. Since the van had been written off and Ms. Zaworski signed an Owner Retention Agreement, does that mean she suffered no loss? [ 32 ] ICBC pleaded and argued that Ms. Zaworski is entitled to no compensation for the items that were stolen or damaged while the van was in ICBC custody because she had been fully compensated for the loss of her vehicle in the settlement, and by the Owner Retention Agreement, she had agreed to buy back the van for $350 as salvage.

Since salvage was what she got, the argument goes she cannot complain that it is not the particular salvage she agreed to purchase. [ 33 ] The Owner Retention Agreement, found at Tab 6 of Exhibit 5, provides that “the vehicle is retained on an as is, where is basis, with no warranties, expressed or implied”. However, the written agreement does not specify to which point in space and time the “as is, where is” condition applies. Ms. Zaworski testified that her understanding was that the applicable time period was the condition of her vehicle immediately after the accident occurred.

Her understanding of the Owner Retention Agreement was supported by both Mr. Grysdale and Mr. Kole, the ICBC adjusters who dealt with Ms. Zaworski and who had arranged Owner Retention Agreements on behalf of ICBC many times. They each testified that the Owner Retention Agreement entitled Ms. Zaworski to her vehicle, in exactly the condition it was in immediately after the crash. This evidence from the Defendant’s witnesses directly contradicts the submission of the Defendant that the Owner Retention Agreement entitles Ms.

Zaworski only to whatever was left of the van when she picked it up from the ICBC agent’s yard. I find, therefore, that the Owner Retention Agreement entitled Ms. Zaworski to receive her vehicle in the exact condition it was in immediately following the accident, NOT the condition it was in when she picked it up on March 23, 2015. [ 34 ] The Defendant further argued that, having been paid out for the vehicle, Ms.

Zaworski had been fully compensated for everything on her van, so she has suffered no loss despite the fact that it was not in the same condition when it was released to her as it was immediately after the accident occurred. I have no evidence that Ms. Zaworski was fully compensated by the cash settlement. I have evidence from Mr. Grysdale that he put numbers into a computer program and it produced a number which was what ICBC was willing to give - a number far less than its market value according to Ms. Zaworski. I find some support for her contention in the remarks of Mr.

Grysdale that he submitted the $605 value for the Hankook tires into the computer and it compensated her only $200 - 300. Thus, the ICBC program placed the value of almost new tires at only one third to one half their cost. [ 35 ] Ms. Zaworski argues that her van was worth far more to her than the value ascribed to it by ICBC because it had been very well maintained and cared for, and had special features in it that made it particularly suitable to transport her disabled child.

She believed the payout amount would be sufficient to fix the body damage and then she would have her vehicle back as good as it was before the accident. I find that belief to be reasonable; no doubt the reason Owner Retention Agreements exist is that the owners in question place a higher value on the vehicle than ICBC does. In Ms. Zaworski’s case, the fact that her husband, Mr. Miller, was in the auto body refinishing business, must have made that arrangement even more sensible. [ 36 ] I understood from the evidence of Mr.

Kole that ICBC sells vehicles that have been written off at a salvage auction; I infer that the prescribed price of $350 simply represents the minimum price ICBC would be willing to accept, not the actual value of the vehicle at the auction. If the $350 amount represented its actual value there would be no point in engaging in an auction; all vehicles would simply be sold for $350.

Thus I find that the $350 amount does not represent the value of the vehicle or its parts to ICBC or the owner who retains it; I construe it to simply represent a fixed cost to ICBC of the salvage transaction. [ 37 ] At the end of the day, regardless of the motives for which Ms. Zaworski or ICBC entered into the Owner Retention Agreement, I find that the Owner Retention Agreement plainly obligated ICBC to provide Ms.

Zaworski with both the cash amount settled on AND her vehicle in the condition it was in immediately after the accident , not after it had been stripped valuable parts by persons unknown while it was in the care of ICBC. The Agreement did not provide that an owner can be provided with their vehicle in any condition. If the Defendant’s argument is valid, ICBC or its agents could completely strip a vehicle leaving nothing behind but a seat on the ground, and still claim to have fulfilled its obligations under the contract. To construe the Owner Retention Agreement in that way would be absurd. [ 38 ] I find that Ms.

Zaworski is entitled to compensation for the parts that were removed or damaged while it was in the care of ICBC after the accident. 5. Although the steering column had suffered no visible damage at the time of inspection, would the steering column have required replacement anyway as a result of the accident and deployment of the airbag? [ 39 ] Mr. Martens testified that he did not observe any damage to the steering column when he inspected the van and that it was not dismantled when he inspected the van nor did he dismantle it.

He has no experience dismantling the steering columns of Dodge Caravans and he did not testify as an expert in the field of automobile damage. However, he testified in examination in chief that his estimating program instructs him that the steering column must be replaced whenever the airbag has deployed on 2005 Dodge Caravans. Under cross-examination, he clarified that the program instructs him to “inspect and replace” the steering column in that circumstance.

With respect, it seems to me that there would be no point in inspecting a steering column if the requirement was to replace it regardless of the results of such an inspection. In any event, Mr. Martens confirmed that he did not inspect it. [ 40 ] Mr. Martens’ report does not specify what the damage was to the van at all, merely that it was an “obvious total loss.” There were only two notations about the state of the van - that the windshield had a pre-existing crack and the digital odometer could not be read because the computer was smashed. However, Mr.

Martens testified that he had been unable to read the odometer because the battery was dead (contrary to his report stated that he could not do so because the computer was smashed). In the photos he took it appears that the computer was actually intact, and I accept Ms. Zaworski’s evidence that as soon as she hooked the van up to a battery she was able to read the odometer. I conclude that the computer was not smashed and Mr Martens’ report to that effect was not correct. [ 41 ] I am concerned that Mr.

Martens does not appear to have followed the instructions he says were part of his inspection protocol (to inspect the steering column) and that his report that the computer was smashed was incorrect. His evidence was inconsistent with respect to the estimating protocol and his evidence that the protocol requires replacement regardless of the outcome of the required inspection makes no sense. There is no evidence before me that the steering column was damaged in the accident and I do not accept

Mr. Martens’ evidence that regardless of the outcome of an inspection he did not do, the steering column must be replaced. I find, therefore, that the steering column did not require replacement as the inevitable result of the accident. Since the damage to the steering column and activator arm occurred after ICBC had control of the van, ICBC must compensate Ms. Zaworski for the parts required to repair the steering column and activator arm. 6. What value should be ascribed to the parts removed from Ms. Zaworski’s van? [ 42 ] Ms.

Zaworski is seeking replacement cost for new parts from the Dodge dealership for the parts that were removed or damaged on her van. She argues that if she buys used parts, she will not know how well they have been maintained, or whether they will be as reliable as the parts she had on her van. ICBC argues that Ms. Zaworski should not be placed in a better position, by receiving the value of new parts, than she would have been had there been no accident. Although it was well maintained, her van was 10 years old.

Although some of the parts had been recently replaced, like the tires and the brakes and rotors, the other parts were original. [ 43 ] I find that Ms. Zaworski is not entitled to have the value of new parts to replace her old ones. She is entitled to a reasonable cost for used parts in good condition, which is what I accept she had in place on her van when those parts were stolen or damaged. However, with the exception of the rims, I was not given any evidence as to the value for good quality used parts. I will therefore take the value of the new parts as noted in the Dodge quotation and reduce that by 30%.

I will address the parts individually. Tires: The tires were new when they were installed in September 2014, so they had had approximately five months wear on them at the time of the accident. They cost $605 installed, plus tax, for a total of $700. I find their value at the time of the accident to have been approximately $480. Mr. Grysdale gave evidence that he compensated her approximately $200 to $300. Choosing the lower of those two numbers, I find that Ms. Zaworski is entitled to the difference of $280 compensation for the theft of her tires. I note that Ms.

Zaworski is in possession of the Champiro tires now on the van, but they were described as worn, with the studs worn to nothing. I ascribe no value to them. Rims: Ms. Zaworski testified that the rims on her vehicle were in good condition without chips, rust etc. However, they were 2005 rims, and were therefore 10 years old when they were stolen. Mr. Miller stated that on another occasion, he had purchased some used rims for a 2005 Dodge Caravan that were in excellent condition for $1,500. I therefore assess the value of her rims at $1,500.

When she got her van back, it had used rims that are not in good condition. I assess them as worth $25 each, for a total of $100 to be deducted from the $1,500, for a net of $1,400. Rotors, Brakes: The rotors and brake pads on the front wheels had been replaced in the spring of 2014, so by the time of the accident they had almost a year’s wear on them. Ms. Zaworski provided a receipt for the work to replace them dated May 26, 2014, which showed the cost of the front brake pads and rotors to be approximately $200.

There was no evidence before me that the rear brake pads and rotors were relatively new or in markedly better condition than the brake pads and rotors on the van when it was picked up at the tow yard. I find that it is proper to compensate Ms. Zaworski $100 for the difference between her front brake pads and rotors and those found on the van. I do not compensate her for the rear brake pads and rotors. Rear wiper and motor: The new cost for these items, according to the Northland Dodge quote, is $214.61.

There is no reason to believe that such items are not available used, from auto wreckers, nor that such parts are any less reliable than the same part on Ms. Zaworski’s van. I suspect that is why those parts were stolen from Ms. Zaworski’s van. I assign a value of $151 to those parts. Jack and accessories: The jack and accessories, new, cost $267.88. Again, there is no reason to believe that these items are not available used and in good and useable condition. I assign a value of $188 to them. Steering column: The cost of the steering column components, new, is $2,027.20.

My remarks with respect to the other parts apply here as well. I assign a value of $1,419 to the steering column components. Multifunction switch: I heard no evidence at the trial about the multi-function switch claimed in the Notice of Claim. I have no evidence upon which to find that it was stolen or damaged. I therefore ascribe no value to it. [ 44 ] The total value of the compensation for the parts I have found to be due and owing to Ms. Zaworski is $3,538. I add an allowance for taxes that will have to be paid on the purchase of replacement parts at 11%, of $389.18, for a total of $3,927.18.

Conduct of ICBC [ 45 ] I find the conduct of ICBC in this litigation very troubling, both by the manner in which the litigation was conducted by the Defendant’s counsel, and by the position taken by ICBC in this litigation. [ 46 ] I mentioned earlier that although Mr. Stewart repeatedly suggested to Ms. Zaworski that the Tire Capital invoice was not an invoice but a quote, and that Hankook tires were not installed on her van, in support of the defence theory that the claim was fraudulent, he did not make those suggestions to Mr. Miller, even though it was Mr.

Miller who testified that he had the dealings with Capital Tire, paid the invoice, and saw those tires installed on the van. If Mr. Stewart was advancing this position in good faith, it was incumbent upon him to confront Mr. Miller with the defence theory, since he was the only witness who claimed personal knowledge of the matters, but he did not. [ 47 ] In a similar vein, Mr. Stewart suggested to Ms. Zaworski that the missing items could have been stolen by a “skilful thief” while the van sat at the roadside prior to being towed by Giver A Yank. Ms. Zaworski disagreed, referring to the photos taken by Mr.

Martens which clearly show the rear window wiper assembly in place and the fact that there were no signs of forced entry into the vehicle consistent with it being broken into so that the jack and accessories could be stolen. [ 48 ] Mr. Stewart was aware that the photos obtained by Mr. Martens, ICBC’s agent throughout this event, proved that the rear wiper and motor disappeared after the van was at PJ Collision, not at roadside. When I confronted Mr. Stewart about the impropriety of his questions, Mr.

Stewart suggested to me that he had been referring to the tires while asking those questions, but it was abundantly clear to

me that he was not. When Ms. Zaworski answered his questions by reference to the rear wiper and jack, he did not correct her or refocus his questions. I find it was abundantly clear that Mr. Stewart had no good faith basis for the suggestion that a “skilful thief” had stolen the items. [ 49 ] This line of questioning was improper, and I find, sarcastic and clearly intended to be offensive. I find Mr. Stewart’s intention was to be insulting to Ms. Zaworski because the obvious inference to be drawn from his questions and manner was the insinuation that Ms. Zaworski was the “skilful thief” referred to.

I observed that Mr. Stewart’s manner toward Ms. Zaworski throughout the trial. Much of his disrespectful behaviour was not the sort that will be apparent in a transcript, but I observed it. By his facial expressions, tone of voice and body language, in addition to the spoken word, both while evidence was being taken and otherwise throughout the proceeding before me, he was condescending and demeaning to Ms. Zaworski. There was certainly nothing about her behaviour in my courtroom that could justify Mr Stewart’s treatment of her. Whether his disrespectful and insulting treatment of Ms.

Zaworski was a stratagem intended to wear down the unrepresented, unsophisticated young mother until she gave up or was simply misogynist, I do not know. Certainly it added unnecessary insult to injury. [ 50 ] As mentioned earlier, I have grave concerns about the position taken by ICBC in this litigation.

Even though ICBC was in possession of clear photographic evidence, taken by their own agent, which conclusively proved that some of the thefts (in particular, the theft of the rear wiper and motor) had occurred while the van was in the possession of the agents of ICBC, ICBC both denied any responsibility for the vehicle, and denied that any thefts occurred at all.

I would have thought that any litigant, but even more so a Crown Corporation such as ICBC, from whom British Columbians have no choice but to obtain basic automobile insurance, has a duty of good faith with respect to their pleadings and the position they take at trial; the position taken by ICBC in this case was not, I find, taken in good faith. [ 51 ] The denial of liability on the basis that ICBC was “not in the care or control of ICBC as bailee or otherwise” had no reasonable prospect of success; in fact, in the circumstances of this case that defence was absurd.

The Defendant provided no evidence or law in support of that defence. Similarly, the denial of liability on the basis that no items had been stripped, removed, or taken from the Claimant’s vehicle also had no reasonable prospect of success - in fact, the evidence called by the Defendant proved the contrary, at least with respect to the rear wiper and motor. [ 52 ] Further, the defence by ICBC included the assertion that Ms.

Zaworski never had the Hankook tires she claimed were stolen from her van, and that the invoice she presented was actually a “quote” - a defence which necessarily entails an allegation that Ms. Zaworski’s claim was fraudulent. ICBC had made another allegation of fraud earlier in the litigation in support of its application to set aside the Default Order, an allegation later admitted to be utterly baseless.

I find that ICBC chose to carry on with a variation on the same theme at the trial before me, without ever providing any evidence to support it. [ 53 ] I found against ICBC on every defence pleaded, except as to the valuation of the damages claimed by the Claimant. Even with respect to that defence, the Defendant produced no evidence to support any different valuation of the parts claimed, preferring to deny any liability.

Had the trial been limited to the issue of valuation alone, I expect it would have concluded in less than one day, instead of four days. [ 54 ] In these circumstances, I find that it is proper to impose a penalty on the Defendant under Rule 20(5) of the Small Claims Rules , in the amount of 10% of the amount awarded, or $393. [ 55 ] For the foregoing reasons, the Claimant will have judgment against the Defendant in the amount of $3,927.18, plus interest as permitted under the Court Order Interest Act from March 23, 2015, as well as a penalty under Rule 20(5) of the Small Claims Rules in the amount of $393.00.

As the Claimant is the successful litigant, she is entitled to her court costs and reasonable expenses under Rule 20(6) of the Small Claims Rules , to be assessed by the Registrar. ________________________ S. K. Keyes Provincial Court Judge Province of British Columbia