Date Issued: July 31, 2024

File: SC-2023-007280

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Peck v. John, 2024 BCCRT 734

Between:

MATTHEW PECK

Applicant

And:

SALLY JOHN

Respondent

REASONS FOR DECISION
Tribunal Member:	Maria Montgomery

INTRODUCTION

1.      This is a dispute about damage to sporting equipment.

2.      The applicant, Matthew Peck, says the respondent, Sally John, damaged his kiteboard. Mr. Peck seeks $1,500 for repairs, loss of the kite’s value, and lost kiteboarding days.

3.      Ms. John paid $433.13 toward kite repairs shortly after the incident. She denies owing Mr. Peck anything further. She says that Mr. Peck was negligent in leaving his kite unattended.

4.      Both parties are self-represented.

JURISDICTION AND PROCEDURE

5.      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). Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness.

6.      Section 39 of the CRTA 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.

7.      Section 42 of the CRTA says the CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in court.

8.      Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

9.      In reviewing evidence and submissions, I discovered Ms. John had not provided any evidence, though she referred to evidence in her submission. I determined the missing evidence was likely the result of a technical error, so I gave Ms. John a new opportunity to upload evidence. After Ms. John uploaded evidence, CRT staff gave Mr. Peck an opportunity to review and respond.

ISSUE

10.   The issue in this dispute is whether Ms. John was negligent, and if so, to what extent Mr. Peck is entitled to his claimed damages.

EVIDENCE AND ANALYSIS

11.   In a civil proceeding like this one, Mr. Peck, as the applicant, must prove his claims on a balance of probabilities, meaning more likely than not. I have read all the parties’ submissions and evidence but refer only to the evidence and argument that I find relevant to provide context for my decision.

Background

12.   Mr. Peck says that both parties were practicing water sports at Squamish Spit, a popular location for this activity. Mr. Peck was kiteboarding. He landed his kite on the spit to take a break. Mr. Peck explains that inflating and preparing his kite for use is a 20-minute process, so he left the kite inflated. While taking his break, Mr. Peck says he heard an explosion and discovered that Ms. John’s windsurfing equipment struck his kite, damaging the kite material and causing it to deflate.

13.   Ms. John was windsurfing that day. She says that she was carrying her sail while walking by Mr. Peck’s inflated kite. She says that a gust of wind caught the sail and caused it to strike the kite. Ms. John says that Mr. Peck took a risk and acted contrary to the safety protocol in leaving his inflated kite unattended.

14.   The parties provided conflicting accounts of the date of the incident. Mr. Peck says the incident occurred on July 13, 2023, and his submissions and evidence are consistent on this point. Ms. John says the incident occurred on July 16, 2023, though I note she incorrectly cites the days of the week in her submission. Mr. Peck provided a statement from a witness who said the event occurred on July 13, 2023. On balance, I find it more likely than not that the incident occurred on July 13, 2023.

15.   It is undisputed by the parties that Ms. John paid $433.13 to Squamish Watersports Society to repair the kite, and this included $360.69 for half of the repair cost, plus $72.44 to have the repair expedited. Mr. Peck paid $360.69, the other half of the repair cost. It is also undisputed that Mr. Peck’s repaired kite was available for him to pick up on July 18, 2023, and he returned to kiteboarding.

16.   Mr. Peck claims the $360.69 he paid to have the kite repaired. Mr. Peck says that repaired kites are difficult to sell. He says his kite lost 50% of its value after the incident, for which he claims $937.50. Mr. Peck explains that he traveled to enjoy kiteboarding. He claims $200 for the 4 days when the kite was undergoing repairs for loss of kiteboarding time, travel and accommodation costs, and for his time spent coordinating repairs.

Was Ms. John negligent?

17.   To succeed in negligence, Mr. Peck must prove Ms. John owed him a duty of care, Ms. John breached the applicable standard of care, and Mr. Peck sustained reasonably foreseeable harm caused by the breach (see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27).

18.   I find Ms. John owed a duty of care to avoid damaging others or their property when carrying her sail. Further, I find by failing to maintain reasonable control of her sail when near others’ sporting equipment, Ms. John’s actions fell below the applicable standard of care.

19.   When determining whether harm is reasonably foreseeable, the person alleging the harm must show that the risk of the type of damage that occurred was reasonably foreseeable to the class of people who suffered the damage (see Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19). I accept that harm to nearby sporting equipment was a reasonably foreseeable consequence of a sail that was not under control. So, I find Ms. John was negligent and responsible for Mr. Peck’s kite damage.

20.   Ms. John says it was Mr. Peck who took a risk by leaving his inflated kite unattended. Ms. John says it is the protocol at Squamish Spit that inflated kites not be left unattended. In evidence, she provides screenshots from the Squamish Watersports Society webpages. As these pages are marked 2024, I cannot determine if this was the protocol available to all users at the time of the incident. However, Mr. Peck does not disagree that Ms. John explains the protocol at Squamish Spit accurately, and he does not say he was unaware of this protocol. He says this protocol did not apply to this incident as it is in place to ensure there is room for other kites to land on busy days and the day in question was not busy. For the reasons I set out below, I find I do not need to consider the relevance of the protocol to the incident.

21.   The parties agree that Mr. Peck left his inflated kite unattended. I accept that when Mr. Peck did so, he left his kite at some risk of interference by passersby. So, I find that he was contributorily negligent in leaving the kite unattended. Mr. Peck explains that many other kiteboarding users at the spit leave their inflated kites unattended. He provides an undated photo that shows the spit with several inflated kites. However, without more information on what a reasonably competent kiteboarder would do, I find this does not establish that it is reasonable to leave an inflated kite unattended.

22.   I find both the parties’ negligence contributed to the July 13, 2023, incident. On the evidence before me, I am unable to determine who is “more” at fault. Section 1(2) of the Negligence Act says that if it is not possible to establish different degrees of fault, liability must be apportioned equally. So, I find Ms. John and Mr. Peck equally responsible for the damage to the kite.

Damages

23.   I turn to the claimed damages. Mr. Peck has the burden of proving his damages. Mr. Peck seeks to recover the $360.69 he spent on the repair. As I have found both parties to be equally negligent and both parties paid half of the repair cost, there is no need for me to make any order regarding the repair cost. I note that Ms. John bore the full $72.44 cost to expedite repairs and I address this further below.

24.   Mr. Peck also claims for 50% of lost value of the kite. He explains that a damaged kite loses significant resale value. However, he did not provide evidence to support this assertion, such as advertisements of used and repaired kites or a statement from a kite retailer. Given the lack of evidence, I dismiss this part of Mr. Peck’s claim.

25.   Mr. Peck explains he was on vacation to exclusively enjoy kiteboarding. I recognize that the incident resulted in inconvenience for Mr. Peck, and loss of the ability to use the kite for 4 days. Mr. Peck did not provide evidence to support his claims for vacation costs, such as receipts for accommodation and travel. On a judgment basis, I value his lost kiteboarding time at $100 per day. However, as Mr. Peck bears 50% liability for the incident, I award him $200 for lost kiteboarding time. As noted above, Ms. John paid $72.44 to expedite repairs. As this expense decreased the lost kiteboarding time, I find it appropriate to subtract half from the $200. So, I find that Mr. Peck is entitled to $163.78.

26.   The Court Order Interest Act applies to the CRT. Mr. Peck is entitled to pre-judgment interest on the $163.78 from July 18, 2024, the date that he resumed kiteboarding, to the date of this decision. This equals $8.64.

27.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. As Mr. Peck was partially successful, I order reimbursement of half of the tribunal fees. So, I find Mr. Peck is entitled to reimbursement of $62.50 In CRT fees. Ms. John did not pay any tribunal fees. Neither party claimed any dispute-related expenses.

ORDERS

28.   Within 30 days of the date of this order, I order Ms. John to pay a total of $234.92, broken down as follows:

a.    $163.78 in damages,

b.    $8.64 in pre-judgment interest under the Court Order Interest Act, and

c.    $62.50 in CRT fees.

29.   Mr. Peck is entitled to post-judgment interest, as applicable.

30.   I dismiss Mr. Peck’s remaining claims.

31.   This is a validated decision and order. Under section 58.1 of the CRTA, a validated copy of the CRT’s order can be enforced through the Provincial Court of British Columbia. Once filed, a CRT order has the same force and effect as an order of the Provincial Court of British Columbia.