Executive Summary: Key Legal and Evidentiary Issues

• A customer appealed a $17,182.23 Small Claims Court judgment entered against him after he drove a dealership’s Corvette into a concrete barrier during a test drive.
   
• Appeals from Small Claims Court are reviewed on a “clearly wrong” standard, which is used interchangeably with palpable and overriding error on questions of fact.
   
• Although the trial judge did not catalogue the particulars of negligence, it was a reasonable inference from her reasons that she found a duty of care, a breach and causation.
   
• Photographs entered as evidence showed the barrier and its protruding rebar, and the trial judge found there was plenty of room to drive around it.
   
• Claims of procedural unfairness failed, as nothing in the trial process or record showed unfairness in how the judge conducted the trial or treated the self-represented parties.
   
• Section 86 of the Motor Vehicle Act, which deems a driver who has the owner’s consent to be the owner’s agent or servant, was held not to protect a negligent driver from their own negligence.
   

Facts of the case

Gardner Chevrolet Buick GMC Ltd. is a car dealership in Hope, BC, and Kirby Sewell was a long-standing customer. Sewell ordered a high-performance Corvette through the dealership, with an anticipated sale price of $121,000, but the car arrived without certain expected performance enhancements. On June 12, 2024, he took it for a test drive, during which he decided he would not buy it. No insurance questions came up, and no insurance documents were requested or provided.

During the drive, Sewell pulled into the parking lot of the Flying J truck stop to inspect and photograph the car. A stationary concrete barrier with rebar protruding from it stood in the lot and appears in the pictures he took. When an impatient semi-truck driver appeared to object to where he was parked, Sewell hurried back into the car to move it and drove into the barrier, causing significant damage to the passenger side. Repairs cost approximately $10,000 and were disclosed to later buyers, and the car was eventually sold for $115,000.

Gardner sued in Small Claims Court. Both parties represented themselves at a two-day trial held in May and October 2025. The trial judge found Sewell negligent, held that he caused the damage requiring repairs and the car’s loss in value, and awarded Gardner $17,182.23 inclusive of interest and costs. Sewell appealed to the Supreme Court of British Columbia, with counsel acting for both sides on the appeal.

Policy and legislative provisions at issue

Appeals from Small Claims Court are governed by ss 12 and 13 of the Small Claims Act, RSBC 1996, c 430. Under s 12, an appeal may review questions of fact and law but is not heard as a new trial unless the Supreme Court orders it. Section 13 allows the Supreme Court to make any order the Provincial Court could have made, impose reasonable terms, make any additional order it considers just, and award costs under the Supreme Court Rules, with no further appeal from such an order.

Sewell’s statutory argument relied on s 86 of the Motor Vehicle Act, RSBC 1996, c 318. Subsection 86(1) applies to actions for loss or damage arising from the use or operation of a motor vehicle on a highway. It provides that a driver who, among other things, acquired possession of the vehicle with the owner’s express or implied consent is deemed to be the owner’s agent or servant, employed by the owner and driving in the course of that employment. Under s 86(2), nothing in the section relieves the deemed agent or servant of liability for the loss or damage.

Reasoning and analysis

Citing Absolute Bailiffs v Warbrick, 2001 BCSC 362, and McIntosh v Papoutsis, 2009 BCSC 174, the court applied a “clearly wrong” standard. That standard is used interchangeably with palpable and overriding error on questions of fact, while questions of law are reviewed for correctness. The court described Small Claims Court as a high-volume “People’s Court” where the rules of evidence, while not abandoned, are significantly relaxed and litigants often have little or no formal legal training. The trial judge heard approximately a day and a half of evidence and delivered her decision orally on the afternoon of the second day, and the court was satisfied that her findings and decision were entitled to considerable deference.

Sewell’s main argument on appeal was that the trial judge failed to strictly lay out the negligence test of duty, standard of care and causation. The court rejected this. Her reasons made clear she did not find Sewell negligent for entering or parking in the area usually used by trucks. Instead, liability rested on his driving into a visible, stationary abutment. She had noted that the lighting appeared sufficient and that the rebar was visible in his own photographs. She also found that the car’s low ride did not lessen his “obligation to drive the car safely and not drive into things,” and that there was plenty of room to get around the barrier. From this, the court found it a reasonable inference that she had found Sewell owed the owner a duty of care and breached it by striking the abutment, causing the damage. Those findings were supported by the evidence and were not clearly wrong on the facts or the law.

Procedural fairness fared no better, with the court finding that argument equally unfounded. The court agreed that judges owe a duty to assist self-represented parties, and that this duty requires a delicate balance with remaining neutral. However, it noted that such balancing is not a precise “one-for-one” exercise. Issues such as pleading inadequacies and document problems were handled with the flexibility the court commonly exercises. Nothing in the trial process or record showed unfairness in the judge’s conduct of the trial or her treatment of the parties.

On s 86, Sewell argued that because he had the dealership’s consent to drive the car, he was deemed its employee and therefore obtained insurance coverage for the damage. In the court’s view, this interpretation missed the mark and intent of the legislation. The trial judge, citing Harris Victoria Chrysler Dodge Jeep Ram Ltd. v Ward, 2023 BCCA 478, had explained that such provisions were enacted to protect innocent third parties where the actual driver may have no insurance or inadequate insurance or assets. She found that s 86 does not make Sewell an employee of the dealership and that treating him as one for all purposes would defy common sense. She also called the submission far-fetched and said it had no basis in law. Agreeing with that conclusion, the court held that the legislation is intended to protect innocent third parties, not to protect a negligent driver from their own negligence. Counsel for Sewell was unable to provide any case authority supporting his interpretation.

Ruling and overall outcome

The appeal was dismissed, leaving the $17,182.23 trial judgment in Gardner’s favour in place. Gardner was also entitled to its costs, which the court awarded at Scale A after characterizing the matter as one of little or less than ordinary difficulty. No dollar amount was fixed for those appeal costs.