Pearson v. North River Towing, 2018 BCPC 229

Citation: Pearson v. North River Towing

(2004) Ltd. 2018 BCPC 229 Date: 20180917 File No: 41316 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: PAUL RAYMOND PEARSON CLAIMANT AND: NORTH RIVER TOWING

(2004) LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.R. ARMSTRONG Appearing in person: Mr. Paul Raymond Pearson Counsel for the Defendant: Mr. Jeffrey A. Jakel Place of Hearing: Kamloops , B.C.

Dates of Hearing: August 21 and August 22, 2018Date of Judgment: September 17, 2018 I. Introduction [1] The Claimant, Paul Raymond Pearson, owns a 2009 Chrysler Aspen motor vehicle (the “Aspen”). On December 26, 2016, theAspen was impounded as a result of the imposition of an Immediate Roadside Prohibition (“IRP”) by the Royal Canadian MountedPolice (“RCMP”). The RCMP instructed the Defendant to tow and store the Aspen pursuant to the Defendant’s contract withRoadsafetyBC. The Defendant towed the Aspen to the Defendant’s lot in Barriere, British Columbia.

When the Claimant attended theDefendant’s lot to retrieve the Aspen on January 3, 2017, the Aspen would not start. It has not started since. The Claimant seeksrecovery of the value of the Aspen from the Defendant and offers to provide the Aspen to the Defendant for whatever residual value itmay possess. The Defendant denies that it is responsible for the Aspen’s inability to start and argues that the claim should be dismissed. II. Analysis [2] The Defendant was in a bailee or bailee-like relationship towards the Claimant with respect to the Aspen for which theDefendant was remunerated.

As a result of that relationship, the Defendant was required to care for the Aspen as if the Defendant was aprudent owner of the Aspen. I must determine whether or not the Defendant failed to appropriately care for the Aspen by leaving theAspen outdoors during very cold weather and without additional heat or mechanical support. I must also decide if the Defendant didanything else which deviated from the care of a reasonably prudent owner such as leaving a door ajar.

I must also determine what causedthe damage to the Aspen and if the Defendant caused the damage, what amount, if any, the Defendant should pay to the Claimant. The Defendant’s Duty of Care [3] The Defendant was entrusted with the care of the Aspen by RoadsafefyBC. Whether the Defendant was a bailee or a quasi-bailee of the Aspen, the Defendant was required to care for the Aspen as would a prudent owner: see Island Auto Supply v. Peterson, (P.E.I. S.C.A.D.) at p. 3. [4] There is some dispute as to what the Defendant`s level of care should be.

A bailee for reward is required to care for bailedobjects as would a “prudent owner”: see Punch v. Savoy Jewellers Ltd., (O.N.C.A). The Defendant urges me to applya lower standard of care than that required of a bailee for reward. The Defendant argues that the lower fees paid by RoadsafetyBC forimpounded vehicles warrant a lower standard of care. A bailee who does not receive compensation is a “gratuitous bailee” and isrequired only to avoid gross negligence.

The Defendant suggests that the appropriate standard falls between the gross negligencestandard of a gratuitous bailee and the “reasonably prudent owner” standard of a bailee for reward. I reject that proposition. TheDefendant was paid to store the Aspen. The standard of care is not on a sliding scale depending on the fees charged. The Defendantwas a bailee for reward of the Aspen. [5] As a bailee for reward, the Defendant was required to care for the Aspen “as a prudent” owner would care for his own vehicle:Elite Body Shop Ltd. v. Fitzgerald, 2007 BCPC 147 , 2007 B.C.P.C. 147 at para. 18.

That standard was also applied to a vehicleimpounded by the police and stored in a tow yard in Harris v. Maltman and KBM Autoworks, 2017 BCPC 273 , 2017 B.C.P.C.273 at paras. 7-11. [6] As a bailee, the Defendant bears the onus of proving that it cared for the Aspen as would a prudent owner: see Bowker v.Coquihalla Towing Co. Ltd., (B.C.S.C.) at para 28-29 and Wilkinson v. Watson Lake Motors Ltd., 2010 YKSC 48, 2010 Y.K.S.C. 48 at para 35(5).

How then would a “careful and diligent owner” care for his or her own vehicle? [7] The Defendant provided a copy of the “Procedures for Impound Lot Operators” which RoadsafetyBC imposes upon tow lotoperators at Tab 5 of Exhibit 1. The Defendant asserts that those Procedures are a complete code with respect to its obligations towardsthe Aspen. I do not accept that the “Procedures for Impound Lot Operators” are a complete code which defines the care required of theDefendant toward the Aspen. The “prudent owner” standard of care cannot be unilaterally changed by the bailee.

However, the“Procedures for Impound Lot Operators” may be evidence of the industry standard which can assist me in determining whether or not theDefendant was negligent: see MacKinnon v. Cudmore, 2017 PESC 20 , 2017 P.E.S.C. 20 at paras. 29-36. Nothing in the“Procedures for Impound Lot Operators” touches on the particular needs of hybrid vehicles or the impact of cold weather.

However, thesilence of the “Procedures for Impound Lot Operators” does not absolve the Defendant of responsibility if the Defendant knew or oughtreasonably to have known that particular steps were required to safeguard the Aspen from damage and did not take those steps. The Evidence of the Defendant [8] The Defendant called the three surviving witnesses who dealt with the Aspen while it was in the Defendant’s care: 1.

Dave Olesko testified that he attended to the location of the Aspen, loaded it onto his truck with a winch, tied it down, drove itto the impound lot in Barriere, unloaded it outside, started it up and drove it into the lot. He then locked the doors, closed the gate andput the keys in the shop. He testified that he definitely locked the doors. He subsequently conveyed the Aspen to Insight (phon)Automotive in Barriere. He never met the Claimant.

He noted that the first time he started the Aspen at the Claimant’s location, itstarted without hesitation but the second time he started it at the Defendant’s lot, the Aspen hesitated a little bit. He did not attempt tostart the Aspen on the date he took it to Insight Automotive because he had been told it would not start. He did not recall the date of thetow to Insight; 2. Chris Snow testified that he was working as a tow truck driver for the Defendant on December 27, 2017. He checked the

Defendant’s lot to ensure it was secure so that no-one could get in. He says he tried to start the Aspen to move it to the area designated for 30-day impound vehicles on the perimeter of the lot. The Aspen was all locked up and the doors were shut. When he tried to start the Aspen, it turned over briefly for about two seconds but then shut down. He tried to start it two more times and then used a boost pack to try to get the vehicle to start. He was then informed by the text message shown at Tab 7 of Exhibit 1 that the Claimant was coming to collect items from the Aspen which was in the middle of the yard. Mr.

Snow retrieved the keys from the office, unlocked the gate, and opened the Aspen. The Claimant grabbed what he needed. Mr. Snow pointed out other items and asked if the Claimant needed them. Mr. Snow testified that he told the Claimant that the Aspen would not start and asked what was wrong. He invited the Claimant to try to start the Aspen and the Claimant was only able to get the Aspen to start for two seconds before it shut down. Mr. Snow again tried the booster pack and again the Aspen shut down after about two seconds. Mr Snow testified that he left the Aspen there and ensured the doors were shut. 3.

Nelsen Hindle is the owner of the Defendant. He testified that the Defendant complied with all of the lot requirements imposed by RoadsafetyBC as outlined in paragraph 9.2.3 of Tab 5 of Exhibit 1. He was called by Mr. Snow to advise that he could not get the Aspen running on December 27, 2016. Mr. Hindle testified that he telephoned the Claimant and asked if there was something he knew that “we didn’t that would make it run”. Mr.

Hindle in cross examination said he did not remember the following suggestions put to him that Claimant: a. asked if the Aspen was plugged in; b. told him that the Aspen was a southern vehicle from Arizona requiring special care; or c. asked if there was a shop to store the Aspen in. Mr. Hindle did allow that it was possible that the Claimant “may have asked me some questions”. Mr. Hindle agreed that it is good practice to treat impound vehicles like their own. Mr. Hindle answered that he did treat the Aspen like his own when it was 25 degrees below freezing.

He testified that plugging a vehicle in would do nothing to assist the battery. Plugging the vehicle in only keeps the engine warm. He would not plug his own vehicle in until the day before he planned to start it. [ 9 ] The fourth person who dealt with the Aspen, Wade Wright (phon.) died in August of 2017. Mr. Wright was the employee who met with the Complainant to return the Aspen to him on January 3, 2017. It would appear that Mr. Wright also collected a $145 charge from the Claimant for the extra towing time accrued when Mr. Olesko got stuck during the original tow.

That money was subsequently turned over to Mr. Hindle. The $145 was charged because RoadsafetyBC refused to pay for the additional time spent extricating Mr. Olesko’s tow vehicle from the Claimant’s property. [ 10 ] The Defendant proffered the expert report of Timothy S. Leggett, P.Eng. P.E. at Tab 9 of Exhibit 1. Mr. Leggett is a professional engineer who has special training and experience in accident reconstruction, including winter road maintenance issues and failure analysis of products, structures and processes. He has extensive experience as an expert witness.

In his report, he indicated that the 2009 Chrysler Aspen is “an extremely rare vehicle” and that less than one thousand were made worldwide and production was stopped very early on in its development. Mr. Leggett included anecdotes from unhappy Aspen owners. Mr. Leggett’s opinion was that the cause of the Aspen’s two batteries discharging was likely a non-functioning traction power inverter module which: acted as the “gate-keeper” of the battery condition.

That is, it permits the battery to be charged when the engine s running but also it will extract battery power from the high voltage battery bank when it is required.” Mr. Leggett points to the impact of the cold weather at the time, concluding that either battery when depleted “would rather quickly freeze and would no longer be useable. [ 11 ] Mr. Leggett did not examine the Aspen nor does his particular expertise seem to touch on the mechanical and electrical systems of Chrysler Aspen vehicles in particular or hybrid vehicles generally. Although the only evidence that I have as to causation comes from Mr.

Leggett, I find that his report does little to assist me in determining what actually caused the failure of the Aspen. The Evidence of the Claimant [ 12 ] The Claimant testified that he purchased the Aspen for $12,995 on November 28, 2016. The Bill of Sale is at Tab 8 of Exhibit 1. He had no troubles with the Aspen prior to the impoundment on December 26, 2016. He checked it thoroughly when he purchased it. It had approximately 117,000 km on it when purchased.

The Claimant says that the original price for a new Aspen in 2009 was $70,000. [ 13 ] The Claimant testified that on December 27, 2016, when he collected his belongings, the fob opened the doors without any difficulty and there was sufficient power to open the doors and relock them. There was no discussion about starting the Aspen. He did not notice the door to be ajar. Although not raised in his direct evidence, on cross-examination the Claimant agreed that someone from the Defendant called him to warn him that the temperature had dropped down extremely and they were not able to plug in the block heater.

He testified that he asked the caller to put the Aspen indoors and they told him that they were going to put the Aspen in the shop. Initially, the Claimant agreed that this call occurred before he attended the tow lot on December 27, 2017. When challenged on cross- examination, the Claimant responded “and your point is?” and then testified that the telephone call occurred on the following day, December 28, 2016 but he did not recall what time of day. He stated that someone from the Defendant telephoned him to tell him that they were unable to start the Aspen and unable to put it in the shop.

He claimed that this was the “big concern” he had with it being left outside for what he anticipated would be thirty days. [ 14 ] Nine days after it was impounded, the Claimant says he went to the Defendant’s lot and had to pay $145 for extra fees for the initial tow because the tow truck got stuck. His wife drew his attention to the driver’s front door which was ajar. The fob did not click to open the door. There were no lights on in the Aspen. The Defendant’s employee tried to boost the Aspen and the lights came on but it would not start.

After “messing” with it for about half an hour, the Claimant asked the driver to tow the Aspen to the Napa auto service station. At Napa, the Aspen received a new twelve volt battery to replace the existing battery which had frozen. Even with the new twelve volt battery, the Aspen would not start. The Claimant had the Aspen towed to the Chrysler dealership in Kamloops for an additional cost. The Claimant elected not to replace the costlier hybrid battery and the Aspen now sits at his property inoperable. He

testified that he believed the cost to replace the hybrid battery would be $19,000 plus $4,000 for labour. [ 15 ] The second witness for the Claimant was his wife who confirmed the purchase of the Aspen and its satisfactory performance prior to the impoundment. She also testified that she noticed a line in the snow covering the Aspen when they went to collect it from the Defendant’s lot in January. She observed this line to be evidence that the front passenger door to be ajar by approximately a quarter of an inch. She also noted that the Aspen would not start.

She confirmed the Aspen is now in their yard with shrubs growing around it. Did the Defendant Breach its Duty of Care? [ 16 ] The Defendant denies being told of any special needs for the Aspen. The Claimant says he told the Defendant about the Aspen’s need to be kept inside in the cold weather during the telephone call on December 28, 2016. I accept the evidence of Chris Snow that he discovered that the Aspen would not start on December 27, 2016. That is corroborated by Nelsen Hindle who received a call from Mr. Snow advising that the Aspen would not start. I accept that Mr.

Hindle telephoned the Claimant on December 27, 2016. Mr. Snow testified that he even invited the Claimant to try to start the Aspen later on December 27 when the Claimant arrived to collect his belongings. I do not believe the Claimant when he says there was no indication on December 27 of any difficulty. His claim that he heard the fob click and that he had no knowledge of a problem with the battery at that time is not believable. His response when challenged on cross examination “and your point is?” erodes any confidence I had in his evidence.

His evidence was markedly different from his Notice of Claim with respect to the sequence of his discovering the cancellation of his prohibition. It may simply be that the Claimant’s memory is flawed these many months later, but I cannot rely upon the Complainant’s evidence. [ 17 ] Conversely, Mr. Snow’s recollection of trying unsuccessfully to start the Aspen was believable and corroborated to some extent by Mr. Hindle. I find that the Aspen was not functioning on December 27, 2016 and that Chris Snow and Mr.

Hindle took appropriate steps to try to remedy the situation by boosting the vehicle and reaching out to the Claimant to discover a possible solution. I also find that the unique needs of the Aspen were not communicated to the Defendant prior to the failure of the Aspen on December 27. Given the uniqueness of the Aspen, it was incumbent on the Claimant to tell the Defendant of the Aspen’s special needs. The Defendant cannot be held to the standard of the reasonably prudent owner of a vehicle with invisible frailties unless those frailties are made known to the Defendant.

The Defendant has established that it did everything a careful and diligent owner of a regular vehicle would do to safeguard the Aspen. I find that the damage had occurred before the Defendant tried to start the Aspen on December 27, 2016. Accordingly, whether or not the door was ajar on January 3, 2017 is irrelevant. Without telling the Defendant of the special vulnerabilities of the Aspen, the Defendant cannot be held responsible for failing to safeguard those vulnerabilities. Causation and Damages [ 18 ] The only evidence led about causation came from the report of Mr. Leggett.

His opinion was that the cause of the battery failures was the non-functioning traction power inverter module. Although I am not entirely satisfied with the report of Mr. Leggett, or the anecdotal sources upon which he based some of his opinion, there is no other evidence about causation. The Claimant has not established what led to the failure of the batteries. This is not a situation where I can simply infer causation from the failure of the batteries.

Even if I am wrong and the Defendant was negligent in leaving the Aspen exposed to the elements in the impound lot, I am not satisfied that the leaving of the Aspen exposed to the elements caused the failure of the Aspen’s batteries. . [ 19 ] Accordingly, I dismiss the Claim. ______________________________ M.R. Armstrong Provincial Court Judge