Harris v. Maltman and KBM Autoworks Date:, 2017 BCPC 273

Citation: Harris v. Maltman and KBM Autoworks Date: 20170921 2017 BCPC 273 File No: 51574 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: LANDON HARRIS CLAIMANT AND: WILLIAM MALTMAN, AND 448665 B.C. LTD. dba KBM AUTOWORKS DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. D. MORGAN Appearing on their own behalf: Landon Harris Appearing for the Defendants: Dustin Griffin Place of Hearing: Vernon , B.C. Date of Hearing: July 17, 2017 Date of Judgment: August 3, 2017 Issue

[1] The issue in this case is whether the defendants, or either of them, are liable to the claimant for the loss of the claimant'simpounded motorcycle that was stored in the corporate defendant’s fenced and locked compound. Overview [2] Within hours of receiving possession of his new Husqvarna motorcycle, Mr. Harris was pulled over by the police for aninfraction and the motorbike was impounded at the impound yard owned by 448665 BC LTD, doing business as KBM Autoworks andTowing [KBM]. [3] KBM had the contract with the Lumby, B.C., RCMP to store their impounded vehicles. [4] The day before Mr.

Harris was to pick up his uninsured motorbike from KBM, it was stolen out of the KBM compound. [5] As a result of good police work and the video surveillance at the KBM impound yard, the thief, Kenneth Morris, wasapprehended. Mr. Morris was sentenced on October 11, 2016 to an effective sentence of 266 days and placed on probation for 12months. [6] Mr. Morris was also ordered, pursuant to s. 738 of the Criminal Code, to pay restitution to Mr.

Harris in the amount of$13,065, which was the full value of the motorcycle. [7] Although the stand-alone restitution order may be enforced in the Provincial Court of British Columbia's Small Claims Court,Mr. Harris has little confidence in being able to collect from the thief, so has brought this lawsuit against the defendant KBM and itsprincipal, William Maltman, on the basis of an alleged breach of duty of care required by the defendants to take appropriate care of themotorbike while it was in their possession. The Law [8] This case is governed by the law of bailment. In the decision of Wienert v.

Kelowna Auto Towing

(1989) Ltd. 1999 CarswellBC 1644, 44 M.V.R. (3d) 315, the court stated: 15. The duty of care of a bailee is determined by the classification of the bailment. A bailee must use due care and diligence in keeping and preserving the

article entrusted but, although he or she is not an insurer, a higherdegree of care is imposed on a bailee for reward than upon a gratuitous bailee. Where a bailee for reward subsequently becomes agratuitous bailee, the standard of care is reduced. Canadian Encyclopedia Digest (Western) 3rd Edition, 1998, Volume 2, page 36,paragraph 28. [9] In Withers v. Sterling Circuits Inc. (1988), (BC SC), 47 D.L.R. (4th) 614 (BCSC), at paragraph 66 the courtstates: 66. Traditionally, the standard of care imposed upon a bailee has been governed by the existence and location of any benefit or awardarising out of the bailment.

Where the bailment is a gratuitous one solely for the bailor’s benefit, then the bailee has generally only beenheld liable for “gross negligence”: Brewer v. Calori (1921), 29 B.C.R. 457 (C.A.). Where the bailment is for reward, the standard issomewhat higher, the bailee being held liable for “negligence”, or a failure to exercise due care and diligence: Zweeres, supra; Davis v.Henry Birks & Sons Ltd., (BC SC), [1981] 5 W.W.R. 559 (BCSC) … 67. The term “gross negligence” has been criticized by some judges (see the discussion in Giblin v.

McMullen (1868), 2 L.R.P.C. 317at 336-337), however it is useful in so far as it indicates that a gratuitous bailee will be held to a less stringent standard of care than abailee for reward. The trend seems also to be moving away from a strict classification of bailments as gratuitous or for reward, preferringinstead to determine liability based on whether or not the bailee has exercised reasonable care, in light of all the circumstances. In thisrespect see Theivin, [1990] B.C.J. No.1606, where Hutchison J. quotes from the 1979 edition of N. H. Palmer, Bailment (Sydney: TheLaw Book Company Limited) at 288.

Hutchison J. went on to hold the gratuitous bailee to the degree of care which he or she wouldexercise with respect to his or her own property in similar circumstances … [10] In the case of Anthony v. Abba Towing and Storage, 2007 BCPC 229 , 2007 BCPC 0229, the Hon. Judge Wallace, incircumstances similar to the case at bar, determined the bailment was one for reward and that the responsibility of the defendant storagecompany was that they would take the same care of the property that they would have taken with their own possessions: (see paragraph7).

In determining whether the appropriate care was taken, Judge Wallace considered all of the circumstances including circumstancesrelating to the type of vehicle that was taken, in that case being an all-terrain vehicle that was found to be at a higher risk for theft. [11] In the case at bar, I find the bailment to be one for reward. The responsibility of the defendant as a bailee for reward is toexercise the care and diligence in regards to the motorcycle that a careful and diligent owner would exercise in similar circumstances.

Facts and Positions of the Parties [12] The compound is surrounded by a high chain link fence with three strands of barbed wire on the top of the fence. There are twoaccess gates both of which were locked by a chain and lock.

The motorcycle was stored inside of an open sided wooden shed that had alocked wooden gate at its access point and a drop cloth barrier to prevent the motorcycle from being viewed if someone, once inside thelocked compound, were to peer over the locked wooden shed access gate. [13] The front entrance of the compound was illuminated and the interior of the compound had motion lights and surveillancecameras. [14] It was the surveillance footage from these cameras that resulted in the ultimate apprehension of the person who stole the

motorcycle. That footage showed that the thief entered the compound by managing to squeeze under the front locked gate.

After discovering the Husqvarna motorcycle, the thief exited the compound and came back with bolt cutters cutting the chain off the rear locked gate and, after forcing open the wooden access gate which apparently was done by using force to put enough tension on the chain to tear out the screws that fastened it to the wooden post, the thief then pushed the motorcycle out of the compound and loaded it onto a pickup truck. [ 15 ] The claimant argues that the motorcycle should have been chained up, with the steering lock engaged and that larger chains around the gates surrounding the compound should have been used.

The claimant also expresses concern that the thief initially gained access and consequently discovered the motorcycle by simply squeezing under the front gate. [ 16 ] The defendant KBM says they did not use a chain around the motorcycle itself because they were concerned about causing damage to the motorbike and that it was believed enough security was in place.

The defendant also submits that after a potential thief exhibited enough determination to get that far within the compound, locking the steering lock on the easily transportable motorbike would not have been a disincentive, given the small size of the Husqvarna motorcycle, and that locking the steering mechanism would have been problematic for the defendant's employees if they had to move the bike. [ 17 ] The defendant says it has since taken steps to block up the space under the front gates that the thief initially crawled through before using bolt cutters on the rear gate. Decision [ 18 ] Mr.

Harris is to be commended on his preparation and research for this trial. He presented as a very hard-working and likable man and I was very sympathetic for his misfortune. [ 19 ] Unfortunately for Mr. Harris, I cannot find that the corporate defendant failed to exercise the care and diligence that a careful and vigilant owner would be expected to exercise in the storage of the motorcycle. [ 20 ] I agree with Mr. Harris that additional security steps could have been taken, but that is not the test. I cannot find that in the circumstances the defendants should be liable for the theft of the motorcycle.

I encourage Mr. Harris to not give up on attempting to enforce the restitution order against the thief. [ 21 ] The claim against the personal defendant, Mr. Maltman, must also fail on the basis that the storage compound is operated and controlled by the corporate defendant. There is no basis upon which the corporate veil should be lifted. [ 22 ] The claim is dismissed. The Honourable Judge R. D. Morgan Provincial Court of British Columbia