Mikkelsen-Hodges v. Kessler Date:, 2016 BCPC 131

Citation: Mikkelsen-Hodges v. Kessler Date: 20160516 2016 BCPC 0131 File No: 631 Registry: Clearwater IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims Court) BETWEEN: NATHEN R. MIKKELSEN-HODGES CLAIMANT AND: LYDIA KESSLER DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Appearing on their own behalf: Mr. Nathen Mikkelsen-Hodges Appearing on their own behalf: Ms. Lydia Kessler Place of Hearing: Clearwater , B.C. Date of Hearing: March 29, 2016 Date of Judgment: May 16, 2016 [ 1 ] This is a claim by Mr. Mikkelsen-Hodges against Ms. Kessler for taking possession of a vehicle they purchased in August

[ 1 ] This is a claim by Mr. Mikkelsen-Hodges against Ms. Kessler for taking possession of a vehicle they purchased in August 2014, being a 2014 Dodge Ram 1500. At the time they purchased the vehicle, there was an understanding between them that she would assume the payments of $290.64 every two weeks and set up insurance in her own name. [ 2 ] The claim was initially for return of the vehicle to Mr. Mikkelsen-Hodges because of a default on the loan payment. However, between the time of the closing of the pleadings and the time of trial, the vehicle had been repossessed by the bank from Ms. Kessler. [ 3 ] Mr.

Mikkelsen-Hodges and Ms. Kessler were in a relationship. It soured. Mr. Mikkelsen-Hodges and Ms. Kessler got into an argument in October 2014. Ms. Kessler alleges that Mr. Mikkelsen-Hodges assaulted her as a result of which she has a counter claim. That counter claim is for $350 representing her half of the damage deposit they paid together on their residence; lost wages for two months in the sum of $3,270.60; and some alternative proposals with respect to what should be done about the vehicle debt. The total amount of Ms.

Kessler’s claim, leaving aside the issues relating to the vehicle, was $3,776.60. [ 4 ] The claim for lost wages arises from her allegation that he assaulted her. They worked in the same place although in separate sections. It was a restaurant and gas station set up. Despite working in separate sections, Ms. Kessler felt harassed by Mr. Mikkelsen- Hodges’ presence. [ 5 ] There is a dispute about what the break up was about and who precipitated the argument. In Mr. Mikkelsen-Hodges’ version, he threw her out when he discovered that she was unfaithful with his friend.

They argued, he evicted her and then he assisted her in packing up to get out. Ms. Kessler says the argument was because they had argued the night before the break up. He had slept on the floor and woke up angry because she had not asked him to come back to bed. She agreed that he evicted her and that an argument ensued. He was pulling her clothes off the hangers and she was telling him to stop. The argument moved into the hallway where he picked her up and threw her into the wall. In Mr. Mikkelsen-Hodges’ version, he moved out of the room because she was angry about him touching her belongings.

He moved to a storage area to pack her stored belongings. She followed him down the hallway and struck him out of anger. He put his hands up to push past her. She fell over. [ 6 ] Ms. Kessler claimed that there were bruises to her arms. There were photographs apparently to support this. However, Ms. Kessler ignored the settlement conference order that required the parties to exchange documents in advance of the trial. Even though the issue of disclosure was raised at earlier points in the trial, she did not disclose these photographs until she was testifying.

I did not permit them to be admitted. [ 7 ] Even if I had admitted the photographs, the bruises may have been objective evidence of an injury, but I am not satisfied that they were incurred during this altercation. There was an altercation that was mutual in nature, Ms. Kessler was left weeping, and Mr. Mikkelsen-Hodges evicted her from her home. Their relationship was over. [ 8 ] Within a short time of the break up, Ms. Kessler’s stepfather came to collect the vehicle. Mr. Mikkelsen-Hodges let him take it but he kept the insurance because he was still paying for it. This was improper conduct. Ms.

Kessler’s stepfather had wanted Mr. Mikkelsen-Hodges to sell the vehicle to him or Ms. Kessler; it was unclear which. Mr. Mikkelsen-Hodges would only sell the vehicle if he was able to recover the winter tires she had taken, be repaid what he had paid, have the loan taken out of his name, and have the insurance cancelled. Some of these demands were reasonable. Some were not. The negotiations did not continue. Mr. Mikkelsen- Hodges believed the terms were settled even though he said the step-father only agreed to advise Ms. Kessler. [ 9 ] Ms. Kessler and Mr.

Mikkelsen-Hodges arranged to meet at the Insurance Corporation of British Columbia (ICBC) for the purpose of having the transfer papers and insurance exchanged upon proof of Mr. Mikkelsen-Hodge’s requirements being met. When they arrived at ICBC, Ms. Kessler only had the transfer document. There was no evidence that the loan had been transferred out of Mr. Mikkelsen-Hodges’ name. The tires were not produced and no money was going to be paid. [ 10 ] This meeting also ended in discord. The vehicle was not transferred to Ms. Kessler. Mr.

Mikkelsen-Hodges assumed that she was continuing to pay the payments owing on the vehicle. However, he received a default notice from the bank. Ms. Kessler said that at this point she was unable to afford the vehicle. She was allowing it to go into default so that it would be repossessed. She did not trouble herself to notify Mr. Mikkelsen-Hodges of this even though he was jointly liable on this loan. Mr. Mikkelsen-Hodges chose to protect his credit rating by making the payments. Ultimately, he also stopped making payments. Ms.

Kessler felt that by having the vehicle repossessed they were both relieved of the burden of the debt. She was simply unable to comprehend that this had caused damage to both of their credit ratings. She seemed indifferent to the impact this might have on her future or to Mr. Mikkelsen-Hodge’s future. Mr. Mikkelsen-Hodges was not indifferent. [ 11 ] Mr. Mikkelsen-Hodges paid the insurance from October to July in the sum of $2,179.80. This was insurance paid while the vehicle was entirely in Ms. Kessler’s possession or repossessed from her.

He also paid the overdue payments in the sum of $2,325.12 from October to February. These two figures amount to $4,504.92. [ 12 ] With respect to the damage deposit, Mr. Mikkelsen-Hodges said there were three people who had moved in and shared the damage deposit. Ms. Kessler’s share would have been $233.33. However, because she had left hair dye in the sink and because a door had been damaged by her during an argument, he did not receive the damage deposit back. I allow no amount for her counter-claim under this heading. [ 13 ] With respect to Ms. Kessler’s claim for lost wages, Mr.

Mikkelsen-Hodges said they had already been discussing her moving to Calgary to go to college before the altercation happened. He believed it was already her plan to do so. However, Ms. Kessler’s evidence is clear that she did not move to Calgary to go to college. She did move to Alberta but began to look for work in the very short period of time that she was there. She claimed that the reason she left her job was because Mr.

Mikkelsen-Hodges was harassing her in the workplace. [ 14 ] I am not entirely satisfied that there is jurisdiction in this court to consider a claim for lost wages as a result of workplace harassment. In any event, I am not satisfied that there was workplace harassment. Ms. Kessler did not want Mr. Mikkelsen-Hodges speaking to her. She particularly did not want him speaking to her while she was at work. This is reasonable. However, they had a

number of outstanding issues between them with respect to their personal items and it was not unreasonable for him to approach her about those issues. There is no evidence that he did anything to her while they were at work. He testified that he took specials pains to ensure that he was not going into her workspace. That is only after he was asked to do so by the management. Prior to that request, there had only been two or three occasions when he had approached Ms. Kessler about their outstanding issues. This is not harassment no matter how unpleasant it may have been for Ms. Kessler to encounter him. [ 15 ] Mr.

Mikkelsen-Hodges needs to understand that the workplace is not the place for dealing with personal issues. However, I am not satisfied that Ms. Kessler has proved anywhere near a balance of probabilities that he harassed her in the workplace. I recognize that she was unhappy having to work in the same place as Mr. Mikkelsen-Hodges. I recognize that it made her uncomfortable. However, the break-up of their relationship is their joint responsibility and their joint burden. Mr. Mikkelsen-Hodges said he doubted Ms. Kessler would have stayed for two and a half months if the environment was made difficult by him.

This fails to recognize that there may not have been many options for Ms. Kessler, given her financial constraints. I find that Ms. Kessler felt the circumstances were uncomfortable. She left her work for that reason, and not because Mr. Mikkelsen-Hodges was harassing her. [ 16 ] With respect to the loan, Ms. Kessler testified that she made every effort she could to get the loan into her name. When she was not successful, she was advised to keep the vehicle in the best possible condition in the event that it was repossessed.

That is what she did. [ 17 ] What the two of them ought to have done is, in a mature fashion, decided together how to best deal with their joint responsibilities. They failed to do so and, as a result, Mr. Mikkelsen-Hodges incurred expenses for maintaining the vehicle in good standing while it was in Ms. Kessler’s possession. They are jointly liable for that debt. It would not be appropriate, in the circumstances, to award Mr. Mikkelsen-Hodges the full amount of the payments that he paid during the period that Ms. Kessler defaulted. It is their debt jointly and I award him half of it in judgment against Ms.

Kessler. That is in the sum of $1,162.56. [ 18 ] It is appropriate that he be awarded the $2,179.80 in insurance that he was required to pay while the vehicle was in Ms. Kessler’s possession for her exclusive use. With respect to the tires, I am not satisfied that Mr. Mikkelsen-Hodges has properly proved the value of them. The evidence is that they were $1,200 tires but they were purchased prior to the purchase of this vehicle. It is impossible without proper evidence to establish their current value. I award nothing for this claim. The total judgment I award Mr. Mikkelsen-Hodges against Ms.

Kessler is the sum of $3,342.36, together with his filing fee in the sum of $156. [ 19 ] I dismiss Ms. Kessler’s claim in its entirety. Had the damage deposit been returned to Mr. Mikkelsen-Hodges, I would have awarded her one-third of the amount that had been returned. As it is, no part of her claim may succeed. [ 20 ] I have made an order for costs in favour of Mr. Mikkelsen-Hodges. If the parties have exchanged formal offers, they have leave to set this matter back before me to address how costs should be apportioned. If no formal offers were exchanged in writing, then the order for costs will be final.

The parties have until May 31, 2016 to advise the registry whether they wish to address the costs award. ____________________________________ S.D. Frame Provincial Court Judge