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 楼主| 发表于 10/18/2019 23:07:35 | 显示全部楼层
Kusnierczyk v. ICBC et al
Collection
Small Claims Decisions
Date
2019-08-23
Neutral citation
2019 BCCRT 1002
File numbers
SC-2019-002783
Decision type
Final Decision
Noteworthy Decisions?
Yes
[url=https://decisions.civilresolutionbc.ca/crt/crtd/en/420462/1/document.do][/url]


Summary:
Small claims MVA claim dismissed because ICBC reasonably investigated and because evidence shows driver of applicant’s vehicle breached section 203 of the Motor Vehicle Act in failing to ensure it was reasonably safe to open her parked car’s door.





Date Issued: August 23, 2019
File: SC-2019-002783
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Kusnierczyk v. ICBC et al, 2019 BCCRT 1002
BETWEEN:
DAVID KUSNIERCZYK
APPLICANT
AND:
INSURANCE CORPORATION OF BRITISH COLUMBIA, Toyota Credit Canada Inc., William Ross, and Marian Ross

RESPONDENTS
REASONS FOR DECISION
Tribunal Member:
Eric Regehr
INTRODUCTION

1.      This is a small claims dispute about a car accident that occurred on March 8, 2019 in a mall parking lot. The applicant, David Kusnierczyk, is the owner of a car, the make and model of which are not in evidence. The respondent, William Ross, struck the applicant’s car’s open driver-side door as he parked beside the applicant’s car, which was driven by his wife, Ingrid Kusnierczyk. The applicant was not present at the time of the collision.

2.      The respondent, the Insurance Corporation of British Columbia (ICBC), is the applicant’s insurer. ICBC internally concluded that Ms. Kusnierczyk was 100% at fault for the collision. The applicant disagrees. He claims $1,000 as reimbursement of his insurance deductible. He also asks for orders that ICBC reverse their finding of fault and that there be no future impact on his insurance premiums.

3.      The evidence does not explain the role of the other respondents, Toyota Credit Canada Inc. and Marian Ross, in this dispute. Presumably they are the owner and lessee or co-lessee of the car Mr. Ross was driving, but given my findings in this dispute, I decided that it was unnecessary for me to confirm their roles.

4.      The applicant is self-represented. The respondents are represented by Colleen Souveryn, an ICBC adjuster.

JURISDICTION AND PROCEDURE

5.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

6.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In some respects, this dispute brings into question the credibility of the parties. However, in the circumstances of this dispute, I find that it is not necessary for me to resolve the credibility issues that the parties raised. I therefore decided to hear this dispute through written submissions.

7.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

8.      Under tribunal rule 9.3(2), in resolving this dispute the tribunal may make one or more of the following orders, where permitted under section 118 of the CRTA:

a.    order a party to do or stop doing something;

b.    order a party to pay money;

c.    order any other terms or conditions the tribunal considers appropriate.

ISSUES

9.      The issues in this dispute are:

a.    Did ICBC breach is statutory obligations in investigating the accident and assessing fault?

b.    Who is liable for the accident?

EVIDENCE AND ANALYSIS

10.   In a civil claim such as this, the applicant must prove his case on a balance of probabilities. I have read all of the parties’ evidence and submissions but I will only refer to what is necessary to explain and give context to my decision.

11.   Ms. Kusnierczyk and Mr. Ross both provided brief telephone statements to ICBC, which are in evidence. There is no other first-hand evidence before me about what happened, such as more detailed statements from Ms. Kusnierczyk or Mr. Ross, witness statements, or photographs.

12.   In his submissions, the applicant appears to rely on conversations he has had with Ms. Kusnierczyk. While the tribunal may consider hearsay evidence, I place no weight on the applicant’s description of what Ms. Kusnierczyk did or said because it is evidence that goes to the core of the dispute. The applicant does not explain why Ms. Kusnierczyk did not provide her own evidence, even though it should have been clear that her evidence was important. Furthermore, as Ms. Kusnierczyk is the applicant’s spouse, without an explanation to the contrary I would expect that her evidence would be readily available to him.

13.   As mentioned above, the accident occurred in a parking lot on March 8, 2019. According to Ms. Kusnierczyk’s statement to ICBC, there was no car in the parking spot to her left when she parked. She stopped, turned off the car, and checked that there was no car next to her. She opened her door and reached for her purse on the front passenger seat. At that time, Mr. Ross’s vehicle struck her open door and it slammed shut.

14.   According to Mr. Ross, when he entered the parking stall, the door of Ms. Kusnierczyk’s car was closed. He says he moved slowly straight into the parking stall. He says that without warning, Ms. Kusnierczyk opened her door into the path of his car and he struck it with his front right bumper.

15.   ICBC assessed Ms. Kusnierczyk 100% at fault. ICBC relied on section 203 of the Motor Vehicle Act (MVA). Section 203(1) of the MVA says that a person must not open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so. Section 203(2) of the MVA says that a person must not leave a door open on the side of a vehicle available to moving traffic for longer than is necessary to load or unload passengers.

Did ICBC breach its statutory obligations in investigating the accident and assessing fault?

16.   As noted above, the applicant wants an order that overturns ICBC’s internal liability assessment. The applicant says that Mr. Ross was 100% liable. To succeed against ICBC, the applicant must prove that ICBC breached its statutory obligations or its insurance contract with the applicant, or both. The issue against ICBC is whether ICBC acted “properly or reasonably” in assigning 100% fault to the applicant (see Singh v. McHatten, 2012 BCCA 286).

17.   As part of its obligation to act properly and reasonably in assigning fault, ICBC must reasonably investigate the claim. In doing so, ICBC is not expected to investigate with the “skill and forensic proficiency of a detective”. Rather, ICBC must bring “reasonable diligence, fairness, an appropriate level of skill, thoroughness and objectivity”. See McDonald v. Insurance Corporation of British Columbia, 2012 BCSC 283.

18.   In reviewing the claims notes, one aspect of ICBC’s handling of the claim stands out. Ms. Kusnierczyk told an ICBC adjuster that there were “lots of witnesses” to the accident, some of whom she knew. The ICBC adjuster told her not to bother because a witness “cannot be anyone she knows”. While ICBC may reasonably consider bias in how it uses statements from non-party witnesses, I find that it was not reasonable or appropriate for the adjuster to refuse to consider such statements at all.

19.   That said, despite that flaw in ICBC’s investigation, I find that ICBC did not breach its duty to reasonably investigate the accident. I make this finding because, as discussed below, Ms. Kusnierczyk’s and Mr. Ross’s statements both supported ICBC’s fault assessment. In other words, Ms. Kusnierczyk’s own statement supported the finding of fault against her, making it unlikely that further statements would be helpful. Furthermore, I find that the extent of ICBC’s obligation to reasonably investigate an accident varies with the severity of the accident. In this accident, there were no injuries and relatively little vehicle damage.

20.   Furthermore, even if there was a breach of ICBC’s obligations, I find that the breach had no consequence because, as discussed below, I agree that Ms. Kusnierczyk was 100% at fault for the accident.

21.   Therefore, I dismiss the applicant’s claim against ICBC.

Who is liable for the accident?

22.   As mentioned above, section 203 of the MVA sets out a person’s duties when they open a car door into moving traffic. I find that section 203 of the MVA applies to this dispute.

23.   According to the notes from an ICBC adjuster who spoke to Ms. Kusnierczyk on the telephone, Ms. Kusnierczyk admitted that she did not shoulder check before opening the door. The applicant says that Ms. Kusnierczyk did shoulder check. However, Ms. Kusnierczyk’s statement to ICBC is silent about this issue.

24.   I find that both drivers’ descriptions of the collision support the conclusion that Ms. Kusnierczyk did not shoulder check or look in her side view mirror before opening her door. Because all Ms. Kusnierczyk had time to do after opening her door was reach for her purse, I find that the collision occurred very soon after Ms. Kusnierczyk opened her door. Therefore, I find that if Ms. Kusnierczyk had shoulder checked or looked in the sideview mirror, she would have seen Mr. Ross’s car entering the parking stall. The fact that she did not see it means that she did not ensure that it was safe to open her door as required by section 203(1) of the MVA.

25.   The applicant also argued that Ms. Kusnierczyk did not breach section 203(2) of the MVA because her door was not open for an unnecessary length of time. I agree that Ms. Kusnierczyk’s door was open for a very short time and that she did not breach section 203(2) of the MVA. However, I find that her breach of section 203(1) is enough to establish that Ms. Kusnierczyk was at fault for the collision, subject to the applicant’s other arguments, which I will address in turn.

26.   The applicant says that Mr. Ross struck the car door by crossing into Ms. Kusnierczyk’s parking space. Ms. Kusnierczyk does not say anything in her statement about where Mr. Ross’s car was when it struck the door. Rather, the applicant relies on a mathematical calculation based on the size of the door and Ms. Kusnierczyk’s estimate of how open it was. However, even if I accepted the applicant’s mathematical arguments, there is no evidence about where Ms. Kusnierczyk’s car was relative to the line between the parking stalls. I find that the applicant has not proven that Mr. Ross crossed the line into Ms. Kusnierczyk’s parking stall.

27.   The applicant points out that if Ms. Kusnierczyk had exited the vehicle, her leg could have been seriously injured. He argues that it makes “absolutely no sense” that the injured person would be blamed for the injury. I find that whether a person might potentially be injured does not affect each party’s legal obligations. I reject this argument.

28.   The applicant also argues that a stationary vehicle cannot be responsible for an accident caused by a moving vehicle. However, both parts of section 203 of the MVA place duties on drivers of stationary vehicles to avoid collisions with moving vehicles. I reject this argument.

29.   Finally, while Mr. Ross had an obligation to be aware of his surroundings and to react reasonably to hazards, I find that he had no time to avoid hitting Ms. Kusnierczyk’s door. Therefore, I find that the evidence does not support a finding of contributory negligence against Mr. Ross.

30.   I find that Ms. Kusnierczyk was 100% at fault for the collision.

31.   Because the applicant has not been successful, I dismiss hisclaim for reimbursement of tribunal fees and dispute-related expenses. The respondents did not claim any dispute-related expenses.


ORDER

32.   I dismiss the applicant’s claims, and this dispute.

Eric Regehr, Tribunal Member





 楼主| 发表于 10/18/2019 23:09:09 | 显示全部楼层
Sze v. ICBC et al
Collection
Small Claims Decisions
Date
2019-09-19
Neutral citation
2019 BCCRT 1104
File numbers
SC-2019-004357
Decision type
Final Decision
[url=https://decisions.civilresolutionbc.ca/crt/crtd/en/421815/1/document.do][/url]





Date Issued: September 19, 2019
File: SC-2019-004357
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Sze v. ICBC et al, 2019 BCCRT 1104
BETWEEN:
HOK LING SZE
APPLICANT
AND:
INSURANCE CORPORATION OF BRITISH COLUMBIA, Jin Song Liu, and Xiao Xue Sun
RESPONDENTS
REASONS FOR DECISION
Tribunal Member:
Eric Regehr
INTRODUCTION

1.      This is a dispute about whether the applicant, Hok Ling Sze, opened his car door and damaged a car that I infer was owned by the respondents, Jin Song Liu and Xiao Xue Sun (owners). The applicant’s insurer, the respondent Insurance Corporation of British Columbia (ICBC), internally determined that the applicant was at fault. The applicant says that he did not cause any damage. The applicant claims $2,000, which he says was the cost of the paint job to repair the owners’ car.

2.      The applicant is self-represented. The owners are represented by an ICBC employee, Colleen Souveryn.

JURISDICTION AND PROCEDURE

3.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

4.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.

5.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

6.      Under tribunal rule 9.3(2), in resolving this dispute the tribunal may make one or more of the following orders, where permitted under section 118 of the CRTA:

a.    order a party to do or stop doing something;

b.    order a party to pay money;

c.    order any other terms or conditions the tribunal considers appropriate.

ISSUES

7.      The issues in this dispute are:

a.    Did the applicant damage the owners’ car?

b.    Did ICBC breach is statutory obligations in investigating the accident?

EVIDENCE AND ANALYSIS

8.      In a civil claim such as this, the applicant must prove his case on a balance of probabilities. I have read all of the parties’ evidence and submissions but I will only refer to what is necessary to explain and give context to my decision.

9.      The applicant was parked in a shopping mall parking lot on April 1, 2019. The owners’ vehicle was parked in the stall beside the applicant’s driver’s side.

10.   As mentioned above, this dispute is about whether the applicant damaged the owners’ car, specifically a scratch and dent on the side of the owners’ car (dent). The owners say that the applicant caused the dent when he opened his driver’s side car door and hit their car.

11.   The applicant does not explicitly admit that he hit the owners’ car. He also does not deny it. Rather, the applicant’s submissions focus on whether he caused the dent. I find that the applicant’s submissions, discussed in more detail below, implicitly acknowledge that he hit the owners’ car when he opened his door.

12.   The question is whether the applicant caused the dent. The applicant provided numerous photographs to support his arguments.

13.   The applicant’s first argument is about the paint residue in the dent. The applicant says that the paint residue is a different shade of grey than his car’s paint. He also says that the owners’ car has a second dent with the same paint residue. He therefore says that another car must have caused the dent at issue in this dispute.

14.   I find that the photographs in evidence are inconclusive on this point. While the dent appears to be a lighter colour than the applicant’s car, I find that it is not possible to conclude that this is paint residue from another car. I find that it is equally plausible that it is simply the colour of the metal underneath the car’s paint that was exposed by the scratch.

15.   The respondent’s second argument is about a paint chip on his door. ICBC relied, in part, on this paint chip as proof that his door damaged the owners’ car. The applicant says that the paint chip is on the outside of the door, not the edge of the door. The applicant also says that based on his measurements, the paint chip on his door is 4 to 5 centimeters higher than the dent. He says that it is impossible that he chipped the paint on his door when he hit the owners’ car.

16.   Again, I find that the photographs are inconclusive. While the applicant provided photographs of how high off the ground the paint chip on his door is, there is no objective evidence about how high off the ground the dent was on the owners’ car. The applicant simply asserts that the dent was 4 to 5 centimeters lower.

17.   I find that the key piece of evidence is a photograph that the applicant took at the scene showing his open car door contacting the owners’ car. The point of contact appears to be directly on the dent. The applicant says that his car door did not, in fact, contact the owners’ car directly on the dent, even though it looks that way in the photograph. He says that the points of contact “appear to line up” because of the “parallax effect”.

18.   I infer from the applicant’s submission that the parallax effect is an optical illusion that operates to make it look like the doors touched where the owners’ car was damaged, when in fact they did not. In effect, the applicant asks me to ignore the photographic evidence on the grounds that it is not reliable. However, the applicant did not provide any explanation about what the parallax effect is or how it affects the photograph.

19.   In the absence of a convincing explanation about the parallax effect, I prefer the simpler explanation that the photograph accurately shows the point of contact between the cars, which was directly on the dent.

20.   Given the evidence before me, the applicant has not shown that he did not damage the owners’ car when he struck it with his car door. Based on the weight of the evidence, I find that the applicant caused the dent.

21.   Even if I had found that the applicant had not damaged the owners’ car, I would not have ordered the owners to reimburse him the $2,000 he claimed because he provided no evidence to support the amount of the claim, such as an invoice.

22.   I dismiss the applicant’s claim against the owners.

Did ICBC breach its statutory obligations in investigating the accident and assessing fault?

23.   As noted above, the applicant wants an order that overturns ICBC’s internal liability assessment. To succeed against ICBC, the applicant must prove that ICBC breached its statutory obligations or its insurance contract with the applicant, or both. The issue against ICBC is whether ICBC acted “properly or reasonably” in assigning 100% fault to the applicant (see Singh v. McHatten, 2012 BCCA 286).

24.   As part of its obligation to act properly and reasonably in assigning fault, ICBC must reasonably investigate the claim. In doing so, ICBC is not expected to investigate with the “skill and forensic proficiency of a detective”. Rather, ICBC must bring “reasonable diligence, fairness, an appropriate level of skill, thoroughness and objectivity”. See McDonald v. Insurance Corporation of British Columbia, 2012 BCSC 283. I find that the extent of ICBC’s obligation to reasonably investigate an accident varies with the severity of the accident. In this accident, there were no injuries and relatively little vehicle damage.

25.   ICBC provided copies of the emails between its adjuster and the applicant. In his emails to ICBC, the applicant set out essentially the same arguments as in this dispute. The ICBC adjuster’s response suggests that they considered each of the applicants’ arguments but was not persuaded. I find that the ICBC employee’s consideration of the applicant’s emails and photographs was reasonable.

26.   Furthermore, ICBC provided an email from the mall’s security contractor. Apparently, there was security video of the incident. The mall’s security contractor had a policy that it only provides access to security video to the police, not to ICBC. The employee said that because of the camera’s angle, it was not possible to see contact between the applicant’s door and the owners’ car. While ICBC did not ultimately get any helpful security footage, I find that its attempt is an indication that it made reasonable attempts to investigate the incident.

27.   I find that the applicant has not proven that ICBC failed to reasonably investigate the incident. I dismiss the applicant’s claim against ICBC.

28.   Under section 49 of the CRTA, and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. The applicant has not been successful so I dismiss hisclaim for reimbursement of tribunal fees and dispute-related expenses. The respondents did not claim any dispute-related expenses.

ORDER

29.   I dismiss the applicant’s claims, and this dispute.

Eric Regehr, Tribunal Member




 楼主| 发表于 10/18/2019 23:10:04 | 显示全部楼层
Lalich v. Zunti
Collection
Small Claims Decisions
Date
2018-12-19
Neutral citation
2018 BCCRT 874
File numbers
SC-2018-003691
Decision type
Final Decision
[url=https://decisions.civilresolutionbc.ca/crt/crtd/en/356498/1/document.do][/url]


Summary:
Private car sale dispute. Car broke down while respondent was delivering it to the applicant. Applicant sought cost of repairs; dispute dismissed, given sections 22 and 25 of the Sale of Goods Act, because property in the car had already been transferred to the buyer and were no longer at the seller’s risk. No success under section 18(c) of the SGA, because here the issue was a defective hose that the seller respondent could not have known about and no evidence car not roadworthy or safe to drive. Given car’s age, sale price, and mileage, no breach of implied warranty of durability.






Date Issued: December 19, 2018
File: SC-2018-003691
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Lalich v. Zunti, 2018 BCCRT 874
BETWEEN:
Ronald Lalich
APPLICANT
AND:
Teri Zunti
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Michael J. Kleisinger
INTRODUCTION

1.      This dispute is about a used 1999 Chevrolet Blazer (vehicle) that the applicant, Ronald Lalich, purchased from the respondent, Teri Zunti. The vehicle broke down while the respondent was delivering it to the applicant. The applicant asks for the respondent to pay for repairs he says are required to bring the vehicle to the condition it was in when he first saw it.

2.      For the reasons that follow, I find that the respondent is not responsible for the proposed repairs.

3.      The parties represent themselves.

JURISDICTION AND PROCEDURE

4.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 3.1 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

5.      The tribunal has discretion to decide the format of the hearing. In Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, the court recognized the tribunal’s process, and found that oral hearings are not necessarily required when credibility is in issue. Some of the evidence in this dispute amounts to a “he said, she said” scenario. Credibility of interested witness, particularly where there is a conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence.

6.      In this dispute, I was properly able to assess and weigh the documentary evidence and submissions provided. Bearing in mind that the tribunal’s mandate includes proportionality and the speedy resolution of disputes, I found that an oral hearing was not necessary.

7.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

8.      Under tribunal rule 126, in resolving this dispute, the tribunal may order a party to do or stop doing something, order a party to pay money, and order any other terms or conditions the tribunal considers appropriate.

ISSUES

9.      The issue in this dispute is whether the respondent is responsible to pay for the repair of the vehicle’s engine.

EVIDENCE AND ANALYSIS

10.   On May 5, 2018, the applicant, who lives in Victoria, responded to the respondent’s advertisement for the sale of the vehicle for $1,800. The respondent, who lives in Ladysmith, owned the vehicle for 10 years. At the time, the vehicle had 263,000 km.

11.   The applicant met with the respondent’s husband at the respondent’s home to view the vehicle. The applicant says that he inspected the vehicle by turning the ignition on and off, allowing the motor to run for some time, and looked under the hood for leaks. He did not take the vehicle for a test drive or have the vehicle professionally inspected. Satisfied with the vehicle, the applicant offered to buy it for $1,400. The parties agreed on a price of $1,500.

12.   The applicant asked whether the respondent could drive it to him in Victoria or if the vehicle could remain in Ladysmith until he moved to Nanaimo in the following months. Once the respondent returned home, she said that she did not want to store the vehicle, but that the family intended to be in Victoria in the near future and could drive it to the applicant at that time. The applicant then paid a $200 deposit on the vehicle and went on his way.

13.   On May 8, 2018, the parties met in Victoria to finalize the sale of the vehicle. After the applicant paid the respondent $1,300, the parties signed the documents to transfer the vehicle to the applicant. The applicant insured the vehicle and gave the new licence plates to the respondent.

14.   On May 13, 2018, the respondent’s husband endeavoured to drive the vehicle to Victoria. He says that the vehicle’s temperature gauge began to rise as he proceeded to Victoria, but later stabilized. He says the gauge did not come near the “red line.” As he neared Victoria, the engine light came on. He pulled over to safely stop the vehicle and, once parked, it stalled and would not start. The respondent’s husband denies that he drove the vehicle until it overheated.

15.   The applicant met the respondent’s husband at the side of the road. Both parties denied responsibility for the vehicle. The applicant refused to take the keys. The respondent, who had met her husband at the side of the road, returned to Ladysmith with the keys.

16.   The next day, the applicant towed the vehicle to a nearby garage at a cost of $131.08. The applicant asked the respondent to courier the keys to the garage, which she did.

17.   On May 29, 2018, the applicant paid the mechanic $161.28 for “review block heater and check over.” Beyond the cursory notes on the invoice, there is no evidence from the mechanic about the condition of the vehicle, the cause of the problems, or any view on the driveability of the vehicle. The respondent says the mechanic who informed her that a hose leak caused the stall and that the vehicle ran, although “a bit rough.”

18.   The applicant agrees that the vehicle was in running condition, “but not roadworthy or trustworthy by any means.” He says it overheated on his return to Victoria from the garage. The applicant says that the main leakage came from a defective hose connected to the block heater. He described the problem as “a simple fix, one that could have been spotted by any mechanic who took the time to check it, a fix that would have prevented this situation we are having right now.”

19.   The respondent says that the vehicle’s block heater was never used because it was parked in the garage in winter months. She suggests that this problem could have been avoided if the applicant had the vehicle professionally inspected.

20.   The applicant provided a quote from a mechanic for various engine work totalling $2,029.03. The quote provides details of the prospective work to be done, but does not provide any assessment of the vehicle’s condition, roadworthiness, or the cause of the problems.

Is the respondent responsible to pay for the repair of the vehicle’s engine?

21.   Section 22 of Sale of Goods Act (SGA) says that the property in specific goods, like the vehicle, “is transferred to the buyer at the time the parties to the contract intend it to be transferred.” In order to determine the intention, section 22(2) says regard must be had to the terms of the contract, the conduct of the parties and the circumstances of the case.

22.   Section 25 (1) and (3) of the SGA says:

(1) Unless otherwise agreed, the goods remain at the seller’s risk until the property in them is transferred to the buyer, but when the property in them is transferred to the buyer the goods are at the buyer’s risk, whether delivery has been made or not. [Emphasis added]

...

(3) Nothing in this section affects the duties or liabilities of either the seller or buyer as a bailee or custodian of the goods of the other property.

23.   The applicant bears the burden of proving that the parties intended to contract out of the presumption found in section 25 of the SGA (Redfern Resources Ltd. (Re), 2011 BCSC 771 at paragraphs 60, 61, and 65, aff’d 2012 BCCA 189).

24.   I find that the parties intended that the property in the vehicle would transfer to the applicant on May 8, 2018. On that date, the applicant paid the total price of the vehicle and the vehicle was transferred into his name. At law, it became his vehicle. There is no indication that the parties specifically agreed that the respondent would be responsible for the vehicle after transferring ownership to the applicant. Further to section 25, the risk of damage to the vehicle rested with the applicant as of that date, despite the fact the vehicle had not been delivered to his home.

25.   As mentioned in section 25(3) of the SGA, the section does not affect the duties or liabilities of a seller acting as a “bailee.” A bailment arises when a person has possession of another person’s property. The person in possession of the property (the bailee) may be held liable for damage that occurs to the property under the bailee’s care, unless the bailee can establish that he did not act negligently to cause the damage.

26.   In my view, there is no evidence that the respondent or her husband did something (negligently or otherwise) that caused the damage that the applicant now complains. The evidence shows that the vehicle broke down because a defective hose connected to the block heater. The respondent did not use the block heater and was not aware that the hose was defective. Quite simply, such things happen to 20 year old vehicles that have driven 263,000 kilometers. In my view, the block heater hose would have broken and caused the engine to stall regardless of whomever was unfortunate enough to be behind the wheel at the time.

27.   Section 18(c) of the SGA provides that there is an implied condition that goods will be durable for a reasonable period of time having regard to the use to which the goods would normally be put and to all the surrounding circumstances of the sale. The applicant bears the burden of establishing both the existence of the implied warranty and that a breach occurred (Clayton v. North Shore Driving School et al., 2017 BCPC 198 at paragraph 79). When determining whether a vehicle is durable for a reasonable period of time, the court or tribunal must evaluate the totality of the facts before it, including the age, mileage, price, the use of the vehicle, and the reason for the breakdown. Used goods are not treated the same way as new goods when it comes to determining what is reasonable in a particular case. With respect to used vehicles, the courts have found that undetected problems that arise from the regular wear, tear and age of a used vehicle will not result in a breach the implied warranty of durability (Sugiyama v. Pilsen, 2006 BCPC 265 at paragraph 81).

28.   As mentioned, the evidence shows that a defective hose attached to the block heater caused the engine to stall. That problem was repaired. Other than the applicant’s opinion, there is no independent evidence that the vehicle is not roadworthy or safe to drive. On the evidence provided, I am unable to find that the engine is in any worse condition than it was on the date the applicant first viewed it. Considering all of the factors, including the vehicle’s age, sale price, and mileage, and finding insufficient evidence about the vehicle’s current roadworthiness, I do not find that the respondent breached the implied warranty of durability.

29.   Absent the respondent’s negligence or breach of warranty, the applicant assumed the risk for anything that happened to the vehicle after it transferred into his name. Having found no evidence of negligence or breach of warranty, I find the applicant is responsible for the vehicle’s repair.

ORDER

30.   I dismiss this dispute.

Michael J. Kleisinger, Tribunal Member




 楼主| 发表于 10/18/2019 23:12:26 | 显示全部楼层
Cerullo v. Michaud
Collection
Small Claims Decisions
Date
2019-03-21
Neutral citation
2019 BCCRT 355
File numbers
SC-2018-007419
Decision type
Final Decision
[url=https://decisions.civilresolutionbc.ca/crt/crtd/en/365805/1/document.do][/url]





Date Issued: March 21, 2019
File: SC-2018-007419
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Cerullo v. Michaud, 2019 BCCRT 355
BETWEEN:
Gemma Cerullo
APPLICANT
AND:
Marc Michaud
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Lynn Scrivener
INTRODUCTION
1.      This dispute is about a used vehicle that the applicant, Gemma Cerullo, purchased from the respondent, Marc Michaud. The applicant says the respondent misrepresented the status of the vehicle and seeks a refund of the $2,200 she paid for it. The respondent disagrees with the applicant’s position.
2.      The parties are self-represented.
JURISDICTION AND PROCEDURE
3.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.
4.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.
5.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.
6.      Under tribunal rule 126, in resolving this dispute the tribunal may make one or more of the following orders:
a.    order a party to do or stop doing something;
b.    order a party to pay money;
c.    order any other terms or conditions the tribunal considers appropriate.
ISSUE
7.      The issue in this dispute is whether the applicant is entitled to a refund of $2,200 from the respondent.
EVIDENCE AND ANALYSIS
8.      In a civil dispute such as this, an applicant bears the burden of proof on a balance of probabilities. The parties provided submissions and evidence in support of their respective positions. While I have considered all of this information, I will refer to only that which is necessary to provide context to my decision.
9.      The respondent advertised a 2005 Subaru Outback for sale on a social media platform. The advertised sale price was $2,800. The applicant responded to the advertisement and met with the respondent to view the vehicle. She says that she was only able to test the vehicle in a parking lot because it was uninsured.
10.   The parties exchanged text messages and came to an agreement that the applicant would purchase the vehicle for $2,200. The applicant made an e-transfer of the funds to the respondent, and later met with him to receive the keys and vehicle.
11.   According to the applicant, when she attempted to insure the vehicle, she discovered that she did not have the proper paperwork to get a temporary operating permit. Later, she did manage to get a 4-day temporary operating permit without the completed transfer of ownership documentation.
12.   The next day, the applicant had the vehicle inspected and learned that there were problems that needed to be addressed. She says that the mechanic advised her that all repairs need to be performed before an out-of-province vehicle can be insured in British Columbia. The applicant’s friend also drove the vehicle, and identified problems with the engine, suspension, and other items. As she had not signed the ownership transfer papers, the applicant decided that she wanted to return the vehicle to the respondent and get her money back. The parties were unable to come to an agreement in this regard.
13.   The applicant submits that the respondent misrepresented the state of the vehicle and did not provide her with accurate information about the process for inspecting and insuring an out-of-province vehicle. The applicant’s position is, as she has not signed an official transfer of ownership, the respondent remains responsible for the vehicle. The applicant seeks an order that the respondent retrieve his vehicle, refund her money, and pay an unspecified amount she has spent on storage.
14.   The respondent says he did not misrepresent the state of the vehicle, and that the applicant did not do her due diligence. He says that he disclosed the mechanical issues that he was aware of, as well as the fact that an out-of-province inspection was required. The respondent says the vehicle was available to be inspected, but the applicant did not do so. According to the respondent, he did not coerce or attempt to trick the applicant. He says that when he became aware that he had not completed the paperwork required to transfer ownership he did so and mailed the document to the applicant.
15.   I am satisfied that the basic elements of a contract (offer, acceptance, and consideration) are present here. The circumstances are consistent with a “agreement to sell” as set out in section 6 of the Sale of Goods Act (SGA). The fact that the applicant has chosen not to sign the ownership transfer documentation does not alter my conclusion.
16.   Contracts of purchase and sale between private individuals are subject to section 18(c) of the SGA. This section says that goods sold must be “durable for a reasonable period of time having regard to the use to which they would normally be put and to all the surrounding circumstances of the sale”.
17.   The applicant has not asserted that the vehicle is not functional, but rather that it requires more repairs that she anticipated. I note that the bill of sale specifically stated that the car was sold “as is”, but that this document is not signed by the applicant and it does not appear that she agreed to this term.
18.   The evidence before me does not establish that the vehicle was not durable as contemplated by the SGA. Although only driven in a parking lot, the applicant was able to test drive the vehicle. She did not identify any issues with the vehicle at that time. I find that there is insufficient evidence that the car was not roadworthy at that time. I find that the applicant has not proven a breach of the implied warranty in section 18(c) of the SGA.
19.   Vehicle sales are made on a “buyer beware” basis, meaning that the buyer must assess the condition of a vehicle before buying it. However, the concept of buyer beware is set aside where a buyer is induced to buy a vehicle based on a seller’s fraud (see, for example, Nixon v. MacIver, 2016 BCCA 8).
20.   In Anderson v. British Columbia (Securities Commission), 2004 BCCA 7, the court stated that, because fraud is a very serious allegation, it is necessary to have clear and convincing evidence to prove the elements of fraud.  I do not find that the available evidence establishes the respondent knowingly made a false representation that caused the applicant to act and suffer a loss.
21.   The respondent’s advertisement clearly states that the vehicle was from Alberta and would require an out of province inspection. The advertisement also identified some work that had been done on the vehicle, and other work that remained outstanding. I find that the applicant has not proven that the respondent knew about the other problems identified in the inspection, and that she has failed to establish that the respondent misrepresented the condition of the vehicle.
22.   The applicant has not proven that there was a breach of the implied warranty in the SGA or that the respondent engaged in misrepresentation. As the applicant learned of the problems with the vehicle in a post-purchase inspection, I am satisfied that she could have discovered these problems through a mechanical inspection prior to the sale. Similarly, the applicant could have made inquiries to determine the process required to register and insure an out-of-province vehicle in British Columbia. By choosing not to inspect the vehicle or make these inquiries prior to the purchase, the applicant assumed the risk for any defects in the vehicle or difficulties with registering and insuring it. The respondent does not bear responsibility in this regard. Accordingly, I dismiss the applicant’s claims.
23.   Under section 49 of the Act, and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. As the applicant was not successful, I dismiss her claim for reimbursement of tribunal fees.
ORDER
24.  I dismiss the applicant’s claims and this dispute.
Lynn Scrivener, Tribunal Member




 楼主| 发表于 10/18/2019 23:14:00 | 显示全部楼层
Singh v. Insurance Corporation of British Columbia
Collection
Small Claims Decisions
Date
2019-06-10
Neutral citation
2019 BCCRT 701
File numbers
SC-2018-008005
Decision type
Final Decision
[url=https://decisions.civilresolutionbc.ca/crt/crtd/en/407599/1/document.do][/url]





Date Issued: June 10, 2019
File: SC-2018-008005
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Singh v. Insurance Corporation of British Columbia, 2019 BCCRT 701
BETWEEN:
JAGTAR SINGH
APPLICANT
AND:
Insurance Corporation of British Columbia
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Andrea Ritchie, Vice Chair
INTRODUCTION

1.      This is a small claims dispute about a motor vehicle accident that occurred on December 13, 2017 (accident). The applicant, Jagtar Singh, and a third party driver not named in this dispute, SHC, were each traveling westbound on Bridgeport Road, west of Knight Street in Richmond, British Columbia. The vehicle driven by SHC was apparently owned by a family member, AL. The applicant was traveling in the left-hand lane, and SHC had recently merged into the right-hand lane. The two vehicles collided. The applicant alleges that SHC and AL are wholly responsible for the accident because SHC was attempting to change lanes into the applicant’s lane when the accident occurred.

2.      The respondent insurer, Insurance Corporation of British Columbia (ICBC), internally concluded that the applicant was 50% at fault for the accident, and that SHC and AL, together, were 50% at fault.

3.      The applicant says ICBC should have found SHC and AL 100% responsible for the accident, and that ICBC breached its statutory obligations in investigating the accident and assigning fault. He seeks a declaration that SHC and AL were 100% at fault, and payment of $2,400.

4.      ICBC says it is not a proper party to the claim, and that SHC and AL should be substituted as respondents. The applicant declined to make a claim against SHC. ICBC says it assigned fault 50/50 under section 151 of the Motor Vehicle Act (MVA) because there is an onus for each driver to stay in their own lane.

5.      The applicant is self-represented, with ICBC represented by an employee.

JURISDICTION AND PROCEDURE

6.      These are the formal written reasons of the Civil Resolution Tribunal (“tribunal”). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act. The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

7.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Some of the evidence in this dispute amounts to a “he said, she said” scenario. The credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note that in Yas v. Pope, 2018 BCSC 282, at paragraphs 32 to 38, the British Columbia Supreme Court recognized the tribunal’s process and found that oral hearings are not necessarily required where credibility is an issue.

8.      In this dispute, the applicant identified that he has difficulty speaking English. While section 20 of the Act creates a general rule that parties must represent themselves, a party is entitled to use a “helper” throughout the tribunal process. The applicant also could have made a request for representation, but did not do so. In any event, although it does not appear the applicant used a helper in this case, I am satisfied the applicant understood the proceedings and that all the relevant evidence and submissions are before me.

9.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

10.   Under tribunal rule 9.3(2), in resolving this dispute the tribunal may make one or more of the following orders:

a.    Order a party to do or stop doing something;

b.    Order a party to pay money;

c.    Order any other terms or conditions the tribunal considers appropriate.

ISSUES

11.   The issues in this dispute are:

a.    Did ICBC breach its statutory obligations in investigating the accident and assessing fault?

b.    Who is liable for the accident? If not the applicant, what is the appropriate remedy?

EVIDENCE AND ANALYSIS

12.   In a civil claim such as this, the applicant bears the burden of proof, on a balance of probabilities. While I have read all of the parties’ evidence and submissions, I have only addressed the evidence and arguments to the extent necessary to explain my decision.

Did ICBC breach its statutory obligations in investigating the accident and assessing fault?

13.   As noted above, the applicant seeks an order overturning ICBC’s internal liability assessment and payment of $2,400. To succeed against ICBC, the applicant must prove on a balance of probabilities that ICBC breached its statutory obligations or its contract of insurance, or both. The issue against ICBC is whether ICBC acted “properly or reasonably” in administratively assigning 50% responsibility to the applicant (see: Singh v. McHatten, 2012 BCCA 286).

14.   The applicant says that ICBC failed in its duty to assess his liability under the insurance contract. The applicant has not made a claim for injury, and ICBC said the applicant did not report any damage to his vehicle. The applicant seeks $2,400 from ICBC, but did not provide any evidence as to what this $2,400 claim is for. I infer it is a claim for increased premiums as a result of being apportioned 50% fault for the accident.

15.   The root of the applicant’s claim is that he says SHC changed lanes into his lane when it was unsafe to do so and collided with the applicant’s vehicle. It is undisputed that there were no independent witnesses to the accident. SHC and the applicant both deny changing lanes in the statements they provided to ICBC, which are in evidence.

16.   ICBC owes the applicant a duty of good faith, which requires ICBC to act fairly, both in how it investigates and assesses the claim and in its decision about whether to pay the claim (see: Bhasin v. Hrynew, 2014 SCC 71 at paras. 33, 55 and 93). As noted in the Continuing Legal Education Society of BC’s ‘BC Motor Vehicle Accident Claims Practice Manual’, an insurer is not expected to investigate a claim with the skill and forensic proficiency or a detective. An insurer must bring “reasonable diligence, fairness, an appropriate level of skill, thoroughness, and objectivity to the investigation and the assessment of the collected information” (see: McDonald v. Insurance Corporation of British Columbia, 2012 BCSC 283).

17.   The applicant says that ICBC “investigated nothing” when assigning fault to both drivers. In their statements to ICBC, both drivers denied changing lanes and they each disagree on which lane the accident happened in. As noted, no independent witnesses were identified and ICBC says no dash cam footage was taken at the time of the actual collision.

18.   Given the overall evidence, I find that ICBC did not breach its statutory obligations or its contract of insurance. I find ICBC acted reasonably in administratively assigning the applicant 50% responsibility for the accident.

19.   Having determined that ICBC acted reasonably in its examination of the accident, I turn now to my assessment of liability.


Who is liable for the accident?

20.   As noted above, the applicant has brought this claim against ICBC only, and not the driver and/or owner of the other vehicle involved in the accident. In Kristen v. ICBC, 2018 BCPC 106, the court held that:

The court cannot assess liability unless the other driver is given an opportunity to present his or her case on that issue. If the other driver is not served and given an opportunity to be heard the court would only have the version of events provided by the claimant to consider. The other driver has a right to notice that the court is being asked to consider the issue of liability and an opportunity to participate in the proceedings to present his or her version of the events.

The proper way for the claimant to do that is to sue the other driver. The proper defendant in an action to determine liability in a motor vehicle accident is the other driver, not ICBC...

21.   In Kristen, rather than dismissing the claim for not having named the other driver, the court allowed the claimant an opportunity to amend his Notice of Claim and add the other driver as a defendant.

22.   In the case of Morin v. ICBC, Clark & Berry, 2011 BCPC 290, the claimant brought an action against both ICBC and the driver of the other vehicle involved in a collision. The court held that ICBC had incorrectly charged the claimant a deductible pursuant to a “hit and run”, when it found the defendant driver’s negligence had caused the accident. Therefore, the court determined the claimant was entitled to reimbursement for the deductible he paid, and although both ICBC and the other driver were named defendants, ordered the claimant was “entitled to recover from ICBC the entire amount of his damages”.

23.   I find that the Kristen and Morin cases are not inconsistent. Kristen states that in order to properly assess liability, the other driver should be named to give them an opportunity to present their version of the accident events. I agree, as not doing so would likely be procedurally unfair. However, there was no decision in Kristen on who would be responsible for paying damages, should they be awarded. In Morin, both ICBC and the other driver were named defendants, so the court assessed liability accordingly, and decided as the claimant had paid money to ICBC, ICBC was the proper party for the claimant to recover that money from. The evidence of the defendant driver in Morin was used to help determine liability in that case.

24.   Given my conclusion below that the applicant has not proved his claim, in this dispute nothing ultimately turns on the fact that the applicant did not name the other driver.

25.   For the reasons that follow, I dismiss the applicant’s claim for a re-apportionment of liability and for damages as the applicant has not proven on a balance of probabilities that the other driver was 100% at fault for the accident. Had I been inclined to find in favour of the applicant, I may have allowed the applicant to take steps to add the other driver as a respondent in this dispute. In the circumstances of this dispute, where I find the applicant has not proven the other driver was 100% at fault for the accident, I do not need to determine who would have been the proper party for the applicant to recover damages from, whether ICBC or the other driver.

26.   The applicant says SHC attempted to change lanes into the left-hand lane and collided with the back end of the applicant’s vehicle. The applicant’s initial statement to ICBC on December 15, 2017 was provided in evidence. In his statement, the applicant stated SHC was merging into his lane and her vehicle’s front left quarter panel struck the middle of the passenger side of the applicant’s vehicle.

27.   Although SHC is not named as a respondent in this dispute, the statement she provided to ICBC after the accident is in evidence. In her statement, SHC stated she merged from Knight Street Bridge onto Bridgeport Road heading west. She said while in the merge lane she was stopped and yielded to other vehicles. She said she was able to merge safely into the right-hand lane of traffic and had been traveling in that lane for 3 to 4 car lengths when the applicant’s vehicle hit her vehicle’s left side mirror and driver’s side door. She stated she did not leave her lane of travel.

28.   Given the above evidence, I am satisfied the accident was not a rear-end collision, but a sideswipe-type collision between the 2 vehicles.

29.   As noted above, ICBC assessed both the applicant and SHC 50% at fault for the accident. ICBC concluded that as both drivers stated they remained in their own lane of travel, neither driver was able to show the other driver was negligent. I agree, for the reasons that follow.

30.   The applicant submits that photographs taken at the scene show that SHC is responsible for the accident because they show her erasing dash cam footage. However, I have reviewed the photographs and do not agree. The photographs were taken after the accident and show 2 individuals passing each other an item, which cannot clearly be made out. The photo appears to show two dash cameras, or some other technology, on the windshield. ICBC submits no dash cam footage was taken at the time of the actual collision. I am not satisfied the photographs show what the applicant states they do. The applicant’s allegation that SHC erased the dash cam footage to cover up her fault is speculative and I give it no weight.

31.   The applicant submits that a video he took at the scene shows SHC admitting the accident was her fault. I disagree. In the video the applicant can be heard telling SHC the accident was her fault, but SHC does not admit she was at fault. I find the video is of no assistance in determining liability for the accident.

32.   Faced with conflicting evidence from the applicant and SHC, in the circumstances here it is impossible to know with certainty how the accident happened. As noted above, the burden is on the applicant to prove on a balance of probabilities that SHC and AL were solely responsible for the accident. I find regardless of not having named SHC or AL in this dispute, the applicant has not met his burden.

33.   As a result, I find the applicant is not entitled to a different liability assessment for the accident and therefore not entitled to damages.

34.   Even if I had found the applicant was 0% at fault for the accident, I would not have allowed the applicant’s damages as claimed. He claims $2,400, but did not provide any evidence as to what the $2,400 was for. He merely requested a $2,400 payment “because ICBC charged both us of 50/50”. This is not sufficient evidence to award damages.

35.   Given my conclusions above, I find the applicant’s claims must be dismissed. In accordance with section 49 of the Act, and tribunal rules, as the applicant was unsuccessful in this dispute, I find he not entitled to reimbursement of his tribunal fees. No dispute-related expenses were claimed.

ORDER

36.   I order the applicant’s claims, and this dispute, dismissed.

Andrea Ritchie, Vice Chair




 楼主| 发表于 10/18/2019 23:19:48 | 显示全部楼层
Desmet v. Insurance Corporation of British Columbia et al
Collection
Small Claims Decisions
Date
2018-10-24
Neutral citation
2018 BCCRT 649
File numbers
SC-2017-007497
Decision type
Final Decision
[url=https://decisions.civilresolutionbc.ca/crt/crtd/en/346741/1/document.do][/url]





Date Issued: October 24, 2018
File: SC-2017-007497
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Desmet v. Insurance Corporation of British Columbia et al,
2018 BCCRT 649
BETWEEN:
Sean Desmet
APPLICANT
AND:
Insurance Corporation of British Columbia and Iulian Andone
RESPONDENTS
REASONS FOR DECISION
Tribunal Member:
Shelley Lopez, Vice Chair
INTRODUCTION

1)        The respondent insurer, Insurance Corporation of British Columbia (ICBC), internally concluded the applicant Sean Desmet was 100% at fault in a March 4, 2017 motor vehicle collision with the respondent Iulian Andone. Mr. Desmet, who was the rear driver in the collision, says ICBC should have found Mr. Andone entirely at fault.

2)        The applicant seeks an order that ICBC’s liability decision be reversed, and that Mr. Andone be held 100% responsible for the collision. The applicant is self-represented, and the respondents are represented by Brian Hanson, an ICBC employee.

JURISDICTION AND PROCEDURE

3)        These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over strata property claims brought under section 3.1 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

4)        The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In the circumstances here, I find that I am properly able to assess and weigh the documentary evidence based on the written submissions before me. Further, bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note that in Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, the BC Supreme Court recognized the tribunal’s process and found that oral hearings are not necessarily required where credibility is in issue.

5)        The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

6)        Under tribunal rule 126, in resolving this dispute the tribunal may: order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate.

ISSUE

7)        The issue in this dispute is whether the applicant is entitled to ICBC’s re-assessment of liability in a motor vehicle collision, such that he is held 0% responsible.

EVIDENCE AND ANALYSIS

8)        In a civil claim such as this, the applicant bears the burden of proof, on a balance of probabilities. I have only addressed the evidence and arguments to the extent necessary to explain my decision.

9)        This is not a tort claim alleging personal injury or damage. Rather, it is a claim under the applicant Mr. Desmet’s policy of insurance with ICBC. In essence, Mr. Desmet says ICBC failed in its duty to assess his liability under the insurance contract. It is undisputed that Mr. Desmet and Mr. Andone have not made any claim for damage or injury, and thus there is presently no financial impact from this decision. For the reasons that follow, I find that Mr. Desmet has not proved his claim.

10)     The root of Mr. Desmet’s claim is that he says Mr. Andone “slammed on the brakes without reasonable explanation” and that this was not something a reasonable and prudent driver would expect.

11)     At this point, I note the courts have consistently held that the onus is on the rear-ending driver to prove the collision was not their fault. As the applicant in this dispute, Mr. Desmet bears this onus in any event. However, in Wright v. Mistry, 2017 BCSC 239 and Skinner v. Fu, 2010 BCCA 321, the courts further concluded that as a general rule the rear driver will be liable for a rear-end collision, because “normally a sudden stop does not create an unreasonable risk of harm” (my bold emphasis added). The courts have held that it is open to the rear driver to offer an explanation as to how the collision could have occurred without his negligence, but Mr. Desmet bears the onus of proving this.

12)     It is undisputed the collision occurred at a low speed, with Mr. Andone as the front driver and Mr. Desmet as the rear driver. It is also undisputed that the minor collision occurred while both vehicles were exiting an intersection on a newly green light. There is no evidence that it was wet or slippery or that the weather or anything else made it hard to see. It was daylight. It is also undisputed that there were no other cars or hazards in front of Mr. Andone.

13)     Mr. Desmet alleges that the parties had 2 separate instances of a “near collision”, before the collision occurred. I find the fact that Mr. Desmet had to apply his brakes “heavily” at an earlier point to avoid a collision with Mr. Andone is some evidence that Mr. Desmet ought to have been particularly cautious in following behind him. I say the same about Mr. Desmet’s own evidence about Mr. Andone allegedly driving erratically before the collision.

14)     Mr. Desmet submits that the damage would have been far greater had he not left “more than reasonable amount of room”. This statement does not prove that Mr. Desmet could not have avoided the collision. The applicant cites the 1995 decision in Ayers v. Singh, 1995 CanLII 2314 (BCSC) as a precedent for finding the front driver responsible. Ayers was appealed by the defendant front driver, and the BC Court of Appeal dismissed the appeal (1997 CanLII 3410). In that case, the plaintiff was a third driver behind the defendant, with a car in between. The court concluded the front driver was liable for stopping suddenly because it accepted the plaintiff could not have avoided the accident.

15)     I find Ayers is distinguishable, in that Mr. Desmet knew Mr. Andone had been driving slowly and allegedly erratically, and because Mr. Desmet honked at him shortly before Mr. Andone stopped. I find Mr. Desmet has offered no reasonable explanation of why he could not have avoided the collision. While Mr. Desmet says that Mr. Andone accelerated after the honking and then stopped, I find this disputed allegation is not proved. I also find it does not address the issue before me, which is whether Mr. Desmet could have avoided the collision. In any event, based on Mr. Desmet’s diagrams, I infer Mr. Andone may have accelerated briefly to get through the intersection and then braked because Mr. Desmet had honked at him. I am not prepared to conclude that Mr. Andone stopped suddenly to intentionally cause the accident as alleged.

16)     Mr. Desmet says that Mr. Andone’s “story” has changed twice since the collision. I find Mr. Desmet has not proved Mr. Andone’s account has been substantially inconsistent. In his March 6, 2017 telephone statement to ICBC, Mr. Andone said that Mr. Desmet had honked at him, the light turned green and he proceeded, but that he has a stick shift and “was going slowly and braked”. Other telephone notes by ICBC indicate they had trouble hearing Mr. Andone as the phone sounded muffled.

17)     ICBC submits that Mr. Andone says prior to the collision he was having a mechanical issue with his transmission. This submission is not inconsistent with his going slowly and braking. Again, it is undisputed that at the intersection, Mr. Desmet began honking his horn at Mr. Andone, because Mr. And one was driving slowly. ICBC says Mr. Andone stopped his car because he was unsure about what the issue was or if there was some hazard he was not aware of. I find Mr. Desmet has not proved this was an unreasonable response in the circumstances.

18)     In his reply submission, Mr. Desmet says Mr. Andone’s car was not likely to have a transmission issue, though there is no evidence he inspected the vehicle. While Mr. Desmet may have a mechanical background, I find this submission to be speculative. Again, Mr. Desmet acknowledges that he honked his horn because Mr. Andone was “rolling slowly through the intersection and traffic was beginning to move”. Mr. Andone’s unusually slow speed, prompting Mr. Desmet to honk at him, was another indicator that Mr. Desmet should have taken particular care to follow at a safe distance.

19)     Section 76(4) of the Insurance (Vehicle) Act says that the insurer may at any stage compromise or settle a claim. Section 77(4) of that statute says ICBC has the right to contest its insured’s liability. Section 74 of the Insurance (Vehicle) Regulation provides that ICBC will assist the insured by investigating and negotiating a settlement, where, in ICBC’s opinion, its assistance is necessary. Section 74.1 says that ICBC is entitled to exclusive conduct and control of the defence of an action, including an entitlement to admit liability, in whole or in part, on the insured’s behalf.

20)     ICBC owes the applicant a duty of good faith, which requires ICBC to act fairly, both in how it investigates and assesses the claim and in its decision about whether to pay the claim (see Bhasin v. Hrynew, 2014 SCC 71 at paras. 33, 55, and 93). As noted in the Continuing Legal Education Society of BC’s ‘BC Motor Vehicle Accident Claims Practice Manual’, an insurer is not expected to investigate a claim with the skill and forensic proficiency of a detective. An insurer must bring “reasonable diligence, fairness, an appropriate level of skill, thoroughness, and objectivity to the investigation and the assessment of the collected information (see McDonald v. insurance Corp. of British Columbia, 2012 BCSC 283). I find ICBC has done so, as discussed further below.

21)     Mr. Desmet says ICBC failed to conduct a thorough examination on the surrounding circumstances. Mr. Desmet says ICBC made the “easy decision” to put 100% liability on him, the rear driver. In support of this position, the applicant points to the fact that ICBC used “generic” accident mark-ups found in its case file, which the applicant says reflect the wrong side of the road. Mr. Desmet also says ICBC’s cited cases are irrelevant as, for instance, his collision did not involve excessive speeding. I disagree. I find it is clear ICBC was using examples in its letter to Mr. Desmet, but in its written description of the accident it referenced the facts accurately. The fact that ICBC listed various “leading” rear-end cases that may not have exactly the same facts does not mean ICBC did not properly investigate this collision.

22)     I acknowledge that in closing its letter, ICBC wrongly referred to a “middle vehicle” and an unsafe lane change. I find this was an unfortunate instance of using a former precedent letter, but it is not material. ICBC had the relevant information, as set out in its substantive written narrative. I find ICBC reasonably concluded that as the rear driver, Mr. Desmet had followed too closely, contrary to section 162 of the Motor Vehicle Act. Section 162(1) states that a rear driver must not follow more closely “than is reasonable and prudent”, having regard to the speed of the vehicles, the amount and nature of traffic, and the highway’s condition.

23)     In summary, in order to succeed in his claim, Mr. Desmet must prove on a balance of probabilities that ICBC breached its statutory obligations or its contract of insurance, or both. The issue here is whether ICBC acted “properly or reasonably” in administratively assigning Mr. Desmet 100% responsibility for the collision (see Singh v. McHatten, 2012 BCCA 286, and Innes v. Bui, 2010 BCCA 322 at para. 33). I find that Mr. Desmet has not proved that ICBC failed to do so.

24)     As the applicant was unsuccessful, in accordance with the Act and the tribunal’s rules I find he is not entitled to reimbursement of tribunal fees.

ORDER

25)     I order the applicant’s claims, and therefore this dispute, dismissed.

Shelley Lopez, Vice Chair




 楼主| 发表于 10/18/2019 23:20:14 | 显示全部楼层
Fulcher v. MILLENNIUM INSURANCE CORPORATION/LA CORPORATION D’ASSURANCE MILLENNIUM et al
Collection
Small Claims Decisions
Date
2019-05-31
Neutral citation
2019 BCCRT 665
File numbers
SC-2018-008680
Decision type
Final Decision
[url=https://decisions.civilresolutionbc.ca/crt/crtd/en/407074/1/document.do][/url]





Date Issued: May 31, 2019
File: SC-2018-008680
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Fulcher v. MILLENNIUM INSURANCE CORPORATION/LA CORPORATION D’ASSURANCE MILLENNIUM et al, 2019 BCCRT 665
BETWEEN:
Joely Fulcher
APPLICANT
AND:
MILLENNIUM INSURANCE CORPORATION/LA CORPORATION D’ASSURANCE MILLENNIUM and Foundation Squamish Chrysler Dodge Jeep Ram
RESPONDENTS
REASONS FOR DECISION
Tribunal Member:
Shelley Lopez, Vice Chair
INTRODUCTION

1.      This dispute is about car repairs and insurance/warranty coverage for them, specifically a transmission replacement.

2.      The applicant, Joely Fulcher, owns a 2015 Jeep Rubicon. The applicant says the respondent car dealership, Foundation Squamish Chrysler Dodge Jeep Ram (Foundation), did faulty repairs dating back to 2016 (although at that time the dealership was under different ownership). The applicant says that the respondent insurer, MILLENNIUM INSURANCE CORPORATION/LA CORPORATION D’ASSURANCE MILLENNIUM (Millennium),failed to provide insurance coverage under the warranty, but also says that Millennium inaccurately said there was no coverage available. The applicant claims $2,000 in damages, $240.73 for rental car charges, and an order that they may terminate their contract with “First Canadian Warranty” (Millennium) if the dispute is not settled with full reimbursement.

3.      Foundation says the applicant has not proved its predecessor did anything improper, either at the time of the May 2016 repairs or in June 2018 when the applicant brought the car back after the transmission failed again. Foundation says the applicant added a lift to the Jeep that voided the insurance, that the applicant has not shown they had a transmission service done as recommended, and that the applicant had done a lot of driving on possibly rough roads since the repairs. Foundation also says the warranty had expired due to mileage by the time the transmission needed repairs in 2018.

4.      Millennium says its insurance coverage covers parts that mechanically fail, but in this case the components in question were covered with rust, which was not covered. Plus, the applicant’s installed lift kit was a breach of the policy.

5.      The applicant is self-represented. Foundation and Millennium are each represented by an employee. For the reasons that follow, I dismiss the applicant’s claims.

JURISDICTION AND PROCEDURE

6.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

7.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In the circumstances here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note that in Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, the BC Supreme Court recognized the tribunal’s process and found that oral hearings are not necessarily required where credibility is in issue.

8.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

9.      Under tribunal rule 9.3(2), in resolving this dispute the tribunal may: order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate.

ISSUE

10.   The issue is whether the respondents are responsible to pay for the applicant’s car repairs, under warranty or otherwise.

EVIDENCE AND ANALYSIS

11.   In a civil claim such as this, the burden of proof is on the applicant to prove her claims on a balance of probabilities. I have only referenced the evidence and submissions as necessary to give context to my decision.

12.   For the purposes of this decision, it is not disputed that Foundation is responsible for its predecessor’s conduct, in that the business was sold as an ‘asset sale’. Therefore, for ease of reference below I will refer to the repairs being done by Foundation, even if they were done under the dealership’s prior ownership.

13.   The applicant bought the Jeep new on February 17, 2015. At the time of sale, she also bought insurance from “First Canadian Protection Plans”, with Millennium as the underwriter. The policy period ran for 5 years until 2021, or 160,000 kilometers, whichever occurred first. Under the Schedule of Coverage, the policy provides a powertrain warranty for 5 years or 100,000 kilometers, which includes the transmission.

14.   Exclusions from coverage included: parts or components that were due for regular scheduled maintenance or that had exceeded a maintenance interval. Rust is expressly excluded under section 3.2(h). Section 3.2(o) of the policy excludes breakdowns attributable to an alteration or custom add-on, such as a lift kit. The policy also states in section 6.3(k) and 6.4 that installation of a lift kit voids the warranty unless certain conditions were met, which the applicant did not meet. In particular, “lift kit” was not checked off on the face page of the policy, which was one of the conditions.

15.   Foundation did transmission repairs on the applicant’s Jeep, according to a May 26, 2016 invoice. At the time, the Jeep would not move in any gear. As the invoice to the applicant was $0.00, I infer it was done under warranty. At the time of repair, the odometer read 47,365 kilometers. The cause of the transmission failure was identified as “extension adapter stripped”.

16.   The applicant brought the Jeep back to Foundation on June 15, 2018, when the odometer read 105,322 kilometers. As noted above, the powertrain warranty expired at 100,000 kilometers. Foundation’s invoice here was also $0.00, but it was only a diagnosis of a suspected internal transmission or transfer case problem. Foundation recommended “rebuilt transmission” (quote reproduced as written).

17.   Foundation says the Jeep was due for a transmission fluid and filter change at 96,000 kilometers, and it had no record of that service being performed. The applicant has not addressed this or provided any evidence that the required service was done. As noted above, if a required service interval is missed, repairs related to that part are not covered under the warranty.

18.   It is undisputed the applicant had a lift kit installed on the Jeep. Foundation and Millennium both say that this can adversely impact the transmission as it changes the angle of the driveshaft. Due to the steeper angle, it can cause different types of wear inside the transmission. Both Foundation and Millennium say that a lift kit modification will void a powertrain warranty, and any repairs that are related to it. I find this interpretation is consistent with the insurance policy in evidence.

19.   Millennium says that the part that ultimately failed was the “axle stub shaft and transmission coupler the shaft fits into were stripped out”. As shown in the photos in evidence, the part was severely rusted, which caused the steel to deteriorate that in turn caused the splines to deteriorate and strip.

20.   Ultimately, the applicant questions why the transmission part rusted in 2016 and again in 2018, and says she did not do anything wrong. I acknowledge her submission that she spent $50,000 on a new Jeep and the same problem arose twice in 3 years.

21.   The difficulty is that the applicant’s speculation does not mean Foundation failed to properly repair the Jeep or that Millennium breached its insurance policy. The applicant has provided no expert evidence from a mechanic suggesting Foundation did anything improperly. The applicant drove the car for 3 years after purchase, with Foundation’s repairs in 2016 and 2 years later in 2018. Given that passage of time, I am not prepared to infer that Foundation must have done something wrong. I find the mechanical issues involved are beyond the knowledge of an ordinary person and require evidence from an appropriately qualified mechanic showing Foundation failed to meet the standard of care. While the applicant had the Jeep’s transmission repaired by Hunters Automotive, their October 4, 2018 invoice is not critical of Foundation.

22.   The applicant also says Foundation lied to her and said it had called about her extended warranty for the new transmission, but she has provided no proof of this. In any event, the applicant says if Foundation had called, Millennium would have said the issue was rust and that would have prompted the applicant to pursue coverage based on mechanical failure. The problem for the applicant is that Millennium says it would have denied coverage based on rust and the presence of the lift kit. I find the applicant knowing the reason was rust would not have changed the outcome, which was that her insurance coverage would not cover the repair.

23.   For all the above reasons, I dismiss the applicant’s claims against Foundation.

24.   As for the applicant’s claims against Millennium, the evidence shows that for the 2018 transmission repair, there were multiple reasons why the insurance coverage was not available: the mileage had exceeded 100,000 kilometers, she had failed to have a regular service done on the transmission at 96,000 kilometers, the lift kit had voided the warranty, and the cause of damage (rust) was excluded under the policy. For all these reasons, I find the applicant’s claim against Millennium must be dismissed.

25.   I acknowledge the applicant’s statement that “Tony” from either First Canadian or Millennium told her the insurance would cover the repair in 2018. However, I find the weight of the evidence does not support that conclusion, as there is no indication of Tony’s last name, the date she spoke to them or if on that date the mileage was under 100,000 kilometers, or whether Tony was aware of all the relevant facts. The applicant does not explain why Tony would make such a statement before Foundation made its diagnosis on June 15, 2018, when the odometer was over 100,000 kilometers. While the applicant alleges Tony told her that the lift kit had nothing to do with the transmission’s failure, she provided no evidence to support that assertion, such as from a mechanic. On balance, I prefer to rely on the written policy that I find governs the applicant’s insurance coverage by Millennium.

26.   Given my conclusions above, I find the applicant’s claims must be dismissed. I therefore do not need to address her damages claims in any detail. However, nothing in this decision prevents the parties from terminating the insurance policy under its terms.

27.   In accordance with the Act and the tribunal’s rules, as she was unsuccessful I find the applicant is not entitled to reimbursement of tribunal fees or dispute-related expenses.

ORDER

28.   I order the applicant’s claims and this dispute dismissed.

Shelley Lopez, Vice Chair




 楼主| 发表于 10/19/2019 13:44:40 | 显示全部楼层
Ivanciuc v. Wang et al
Collection
Small Claims Decisions
Date
2018-02-27
Neutral citation
2018 BCCRT 55
File numbers
SC-2017-003607
Decision type
Final Decision
[size=1.5em]





Date Issued: February 27, 2018
File: SC-2017-003607
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Ivanciuc v. Wang et al, 2018 BCCRT 55
BETWEEN:
Cristian Ivanciuc
APPLICANT
AND:
Hsiao-Fu Wang and Insurance Corporation of British Columbia

RESPONDENTS
REASONS FOR DECISION
Tribunal Member:
Shelley Lopez, Vice Chair

INTRODUCTION

1.         The respondent insurer, Insurance Corporation of British Columbia (ICBC), internally concluded the applicant Cristian Ivanciuc was 75% liable for damage to an oncoming vehicle owned by the respondent Ms. Wang, arising from a September 20, 2015 motor vehicle accident. Mr. Ivanciuc was driving northbound and Ms. Wang was stopped southbound, waiting to turn left. The collision occurred when Ms. Wang turned left and Mr. Ivanciuc went through an amber light into the intersection.

2.         Mr. Ivanciuc submits ICBC should have found Ms. Wang entirely responsible, because he could not have safely stopped in time for the amber light and could not have avoided the accident.

3.         Mr. Ivanciuc wants ICBC to re-assess the accident and find him 0% liable, reimburse him $1,575.47 for repair costs, and reimburse tribunal fees and dispute-related expenses. Mr. Ivanciuc is self-represented. Ms. Wang is represented by ICBC’s representative.

JURISDICTION AND PROCEDURE

4.         These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 3.1 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

5.         The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility or other reasons that might require an oral hearing. None of the parties requested an oral hearing.

6.         The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

7.         Under tribunal rule 121, in resolving this dispute the tribunal may: order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate.

ISSUES

8.         The issues in this dispute are:

a.      Could Mr. Ivanciuc have safely stopped for the amber light so as to prevent the collision with Ms. Wang?

b.      Is a 75% liability assessment against Mr. Ivanciuc appropriate?

c.      To what extent, if any, is Mr. Ivanciuc entitled to his requested remedies?

EVIDENCE AND ANALYSIS

9.         In a civil claim such as this, the applicant bears the burden of proof on a balance of probabilities. I have only addressed the evidence and arguments to the extent necessary to explain my decision.

10.      Mr. Ivanciuc did not carry collision coverage and so there was no “own damage” claim that could be made on his own policy. Accordingly, ICBC paid 25% of Mr. Ivanciuc’s total damages under Ms. Wang’s third party liability coverage. As noted, this dispute is about ICBC’s assessment that Mr. Ivanciuc was 75% responsible for the accident, and Mr. Ivanciuc’s claimed damages relate to his vehicle repair costs. This is not a personal injury dispute and nothing in this decision prevents the individual parties from pursuing any personal injury claim. I say this because Mr. Ivanciuc did not frame his dispute as a tort action or one of negligence against Ms. Wang, although Ms. Wang is named as a respondent. That said, even if Mr. Ivanciuc had framed his claims in negligence, I find my conclusions below about liability would be the same.

11.      In this case, Mr. Ivanciuc seeks an order overturning ICBC’s 75% liability assessment against him and a full reimbursement of his vehicle repair costs. To do so, he must prove on a balance of probabilities that ICBC breached its statutory obligations or its contract or insurance, or both. The issue here is whether ICBC acted “properly or reasonably” in administratively assigning responsibility for the collision, with 75% liability against Mr. Ivanciuc and 25% against Ms. Wang (see Singh v. McHatten, 2012 BCCA 286, and Innes v. Bui, 2010 BCCA 322 at para. 33).

12.      Section 76 of the Insurance (Vehicle) Act, dealing with third party rights, says that the insurer may at any stage compromise or settle the claim. Section 77(4) of that statute says ICBC has the right to contest its insured’s liability. ICBC owes the applicant a duty of good faith, which requires ICBC to act fairly, both in how it investigates and assesses the claim and as to its decision about whether to pay the claim (see Bhasin v. Hrynew, 2014 SCC 71 at paras. 33, 55, and 93). As noted in the Continuing Legal Education Society of BC’s ‘BC Motor Vehicle Accident Claims Practice Manual’, an insurer is not expected to investigate a claim with the skill and forensic proficiency of a detective. An insurer must bring “reasonable diligence, fairness, an appropriate level of skill, thoroughness, and objectivity to the investigation and the assessment of the collected information (see McDonald v. insurance Corp. of British Columbia, 2012 BCSC 283).

13.      I have reviewed all of the evidence, some of which comes from the applicant’s own dashcam footage and some from a police officer witness to the collision. I decline to ignore ICBC’s “Claims Assessment Review” or “CAR” decision, as requested by the applicant. I say this because ICBC’s assessment is one factor I must consider in assessing whether ICBC acted reasonably under the legislation and the parties’ insurance contracts.

14.      Overall, I am satisfied that ICBC properly concluded that the applicant had a safe opportunity to stop at the amber light and had he done so, he could have avoided the collision with Ms. Wang. Contrary to the applicant’s suggestion, the reasonableness of ICBC’s conclusion does not necessarily turn on a strict mathematical calculation according to a rigid formula.

15.      The applicant submits he was only 33 meters from the light, and that ICBC has set a 37 meter threshold for safe stopping distance at 50 km/hr, and cites a publication titled “unsafe speed”. However, that document is a guideline and is not determinative. Further, I accept ICBC”s position that the 37 meter threshold is an emergency stopping distance, and does not apply when a driver should be anticipating the need to stop.

16.      It is undisputed that Mr. Ivanciuc failed to apply his brakes before the collision with Ms. Wang. Mr. Ivanciuc says there was a slight slope and so he kept his foot on the gas to maintain speed. Mr. Ivanciuc’s argument is that he made a reasonable decision in the moment to proceed so as to clear the intersection, and did not expect Ms. Wang to make the unsafe turn. However, the “late amber” light turned red at the point of impact in the middle of the intersection. As noted by ICBC, drivers approaching an intersection with a “late amber” light should be expecting that oncoming drivers waiting to turn left will make their left turn on the late amber light. I find Mr. Ivanciuc should have been preparing to slow down given the surrounding circumstances.

17.      I note that it was a rainy day. After coming around a bend, Mr. Ivanciuc had a clear and straight approach to the intersection. Mr. Ivanciuc submits that he was anticipating the light could change to amber and that he proceeded with caution by maintaining the 50 km/hr speed limit. However, as he approached the amber light, Mr. Ivanciuc was passing other drivers on his right, suggesting others reasonably realized they needed to slow down and yet he failed to do so. There was also a car in front of Ms. Wang who turned left in front of Mr. Ivanciuc before Ms. Wang made her turn. All of this supports the conclusion that Mr. Ivanciuc should have been slowing down, in anticipation of Ms. Wang also completing her left turn. On balance, I find that as Mr. Ivanciuc approached the intersection, there were a number of indications that the light could turn amber and he should have been preparing for it by slowing down, and yet he failed to do so.

18.      The witness police officer gave the applicant a violation ticket for disobeying the traffic light and failing to yield the right of way, contrary to section 125 of the Motor Vehicle Act. This is further support for ICBC’s conclusion. It is true that Mr. Ivanciuc cannot be said to be “guilty” of that offence because the court later dismissed the ticket for “want of prosecution.” However, the court’s dismissal does not mean that Mr. Ivanciuc complied with the Motor Vehicle Act. There are a number of reasons why the court may dismiss a ticket that have no bearing on the merits of the ticket. I have no evidence before me about why the court made the order. Further, the standard of proof in a criminal proceeding is ‘beyond a reasonable doubt’, which does not apply to insurance investigations and determinations.

19.      Contrary to the applicant’s submission, I find the witness police officer was in a position to determine that the applicant had the opportunity to slow for the amber light and avoid the collision. I find ICBC reasonably relied upon the police officer’s evidence as a witness. I find ICBC properly acted in accordance with section 74.1 of the Insurance (Vehicle) Regulation in investigating the accident and assessing liability. ICBC’s decision to hold Mr. Ivanciuc 75% liable is also supported by the outcome in a decision based on similar facts, Kokkinis v. Hall, 1996, BCJ No. 150, in which the driver in Mr. Ivanciuc’s position was held 100% liable.

20.      In summary, I accept ICBC’s conclusion that had Mr. Ivanciuc applied his brakes when he saw the light turn amber, he could have slowed down and avoided the collision. I find that ICBC reasonably concluded that Mr. Ivanciuc failed to comply with the Motor Vehicle Act, which addresses his obligation to yield and stop in the circumstances. This conclusion does not alter the fact that ICBC also reasonably found Ms. Wang 25% liable for her failure to comply with the Motor Vehicle Act. In all of the circumstances, I find the applicant has not proven the liability split was unreasonable.

21.      In summary, I confirm ICBC’s 75% liability assessment against Mr. Ivanciuc. Given this conclusion, I do not need to address his damages claims. As Mr. Ivanciuc was unsuccessful, I also dismiss his claims for tribunal fees and dispute-related expenses.

ORDER

22.      I order that the applicant’s dispute is dismissed.


Shelley Lopez, Vice Chair




 楼主| 发表于 10/19/2019 13:47:43 | 显示全部楼层
Sachwani v. Insurance Corporation of British Columbia et al
Collection
Small Claims Decisions
Date
2018-06-19
Neutral citation
2018 BCCRT 268
File numbers
SC-2017-004479
Decision type
Final Decision
[url=https://decisions.civilresolutionbc.ca/crt/crtd/en/311666/1/document.do][/url]





Date Issued: June 19, 2018
File: SC-2017-004479
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Sachwani v. Insurance Corporation of British Columbia et al,
2018 BCCRT 268
BETWEEN:
Aqeel Sachwani
APPLICANT
AND:
Insurance Corporation of British Columbia and Li Gao
RESPONDENTS
REASONS FOR DECISION
Tribunal Member:
Shelley Lopez, Vice Chair
INTRODUCTION

1.         The respondent insurer, Insurance Corporation of British Columbia (ICBC), internally concluded the applicant Aqeel Sachwani’s vehicle was 50% at fault in an April 1, 2017 collision with the respondent Li Gao. The applicant says ICBC should have found Li Gao entirely at fault, rather than only 50% liable. At the time of the collision, the applicant was a passenger and his wife was driving his car.

2.         The applicant claims $2,500, although the applicant’s car repair bill appears to be $2,052.91. The applicant also wants ICBC to apologize for his time wasted and associated frustration. The parties are self-represented, with ICBC represented by an employee.

JURISDICTION AND PROCEDURE

3.         These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 3.1 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

4.         The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.

5.         The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

6.         Under tribunal rule 126, in resolving this dispute the tribunal may: order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate.


ISSUES

7.         The issues in this dispute are:

a.      Was ICBC’s 50% liability assessment against the applicant appropriate, and in particular, did the applicant’s wife back his car out safely?

b.      To what extent, if any, is the applicant entitled to his requested remedies?

EVIDENCE AND ANALYSIS

8.         In a civil claim such as this, the applicant bears the burden of proof on a balance of probabilities. I have only addressed the evidence and arguments to the extent necessary to explain my decision.

9.         The collision between the applicant’s car and Ms. Gao’s car happened as each car backed out of opposite parking spaces.

10.      As noted, this dispute is about ICBC’s assessment that the applicant’s wife was 50% responsible for the collision, and the applicant’s claimed damages relate to his vehicle repair costs. ICBC’s assessment was that both the applicant’s wife and Ms. Gao equally failed to back out of their spots safely, as required by section 193 of the Motor Vehicle Act.

11.      I note this is not a personal injury dispute and nothing in this decision prevents the individual parties from pursuing any personal injury claim, although based on the evidence before me it appears no one was injured. I say this because the applicant did not frame his dispute as a tort action or one of negligence against Li Gao, although Li Gao is named as a respondent. That said, even if the applicant had framed his claims in negligence, I find my conclusions below about liability would be the same.

12.      Section 76(4) of the Insurance (Vehicle) Act says that the insurer may at any stage compromise or settle the claim. Section 77(4) of that statute says ICBC has the right to contest its insured’s liability. Section 74 of the Insurance (Vehicle) Regulation provides that ICBC will assist the insured by investigating and negotiating a settlement, where in ICBC’s opinion its assistance is necessary. Section 74.1 says that ICBC is entitled to exclusive conduct and control of the defence of an action, including an entitlement to admit liability, in whole or in part, on the insured’s behalf.

13.      In this case, the applicant seeks: an order overturning ICBC’s 50% liability assessment against him, a finding that Ms. Gao was entirely at fault for the accident, and a full reimbursement of his vehicle repair costs. To do so, the applicant must prove on a balance of probabilities that ICBC breached its statutory obligations or its contract of insurance, or both. The issue here is whether ICBC acted “properly or reasonably” in administratively assigning responsibility for the collision, with 50% liability attributed to each of the applicant and Ms. Gao (see Singh v. McHatten, 2012 BCCA 286, and Innes v. Bui, 2010 BCCA 322 at para. 33).

14.      ICBC owes the applicant a duty of good faith, which requires ICBC to act fairly, both in how it investigates and assesses the claim and as to its decision about whether to pay the claim (see Bhasin v. Hrynew, 2014 SCC 71 at paras. 33, 55, and 93). As noted in the Continuing Legal Education Society of BC’s ‘BC Motor Vehicle Accident Claims Practice Manual’, an insurer is not expected to investigate a claim with the skill and forensic proficiency of a detective. An insurer must bring “reasonable diligence, fairness, an appropriate level of skill, thoroughness, and objectivity to the investigation and the assessment of the collected information (see McDonald v. insurance Corp. of British Columbia, 2012 BCSC 283). I find ICBC has done so, as discussed further below.

15.      In addition to section 193 of the Motor Vehicle Act, ICBC relies on section 1 of the Negligence Act, which provides that if 2 or more people cause loss to more than one of them, each person bears responsibility to remedy the loss based on the degree to which they were at fault. The Negligence Act states that if it is not possible to establish different degrees of fault, liability must be apportioned equally.

16.      Based on the photos in evidence, I accept that at the time of the collision the applicant’s car was already in the roadway, out of its parking stall. I similarly find Ms. Gao’s vehicle was backed out of her stall at the time of the collision, which is consistent with the parties’ statements and the photos in evidence.

17.      Both the applicant and Ms. Gao allege that the other’s vehicle was reversing quickly. I agree that ICBC’s conclusions were reasonable, as set out in its letter to the applicant finding his vehicle was 50% responsible for the collision:

Both [the applicant’s wife] and the other driver advised that both reversed from a parking stall. Both advise that they checked for traffic prior to reversing. Your video footage only shows what is happening at the front of your vehicle. Unfortunately it does not prove that [the applicant’s wife] checked for traffic or that the other driver reversed out of their [stall] quickly. We are unable to prove timing or who reversed first and the speed in which they reversed. When it is impossible to ascertain which of the conflicting versions reflect the true circumstances of the loss then we have to assess an equal division of liability.

18.      There is no question Ms. Gao was at least partially at fault. The issue in this dispute is whether the applicant’s wife was also at fault. The fact that at the time of the collision the applicant’s wife’s had been stopped, for what I find was 1 to 2 seconds at most, is not determinative. That stoppage was for such a short period of time that I find ICBC was reasonable in concluding it was not possible to attribute fault other than equally. The crux of this dispute is that both vehicles were reversing at approximately the same time. I find the applicant is not entitled to the remedies sought.

19.      In accordance with the tribunal’s rules, as the applicant was unsuccessful in his claim, I find he is not entitled to reimbursement of tribunal fees or dispute-related expenses.

ORDER

20.      I order that the applicant’s claims are dismissed.

Shelley Lopez, Vice Chair




 楼主| 发表于 10/19/2019 13:51:58 | 显示全部楼层
Louie v. Insurance Corporation of British Columbia
Collection        Small Claims Decisions
Date        2018-08-14
Neutral citation        2018 BCCRT 449
File numbers        SC-2017-004054
Decision type        Final Decision
Date Issued: August 14, 2018


File: SC-2017-004054





Type: Small Claims


Civil Resolution Tribunal


Indexed as: Louie v. Insurance Corporation of British Columbia, 2018 BCCRT 449


BETWEEN:
Gordon Louie

APPLICANT
AND:
Insurance Corporation of British Columbia


RESPONDENT

REASONS FOR DECISION


Tribunal Member:


Kate Campbell


INTRODUCTION
1.         The respondent insurer, Insurance Corporation of British Columbia (ICBC), internally concluded the applicant Gordon Louie was 100% at fault in a January 15, 2017 collision with a dump truck driven by Rajbir Singh Chatrath.


2.         The applicant says ICBC should have found Mr. Chatrath entirely at fault. He seeks a declaration that Mr. Chatrath was 100% at fault, and a refund of the $300 insurance deductible.


3.         ICBC says the applicant was 100% responsible for the collision under section 158 of the Motor Vehicle Act (MVA) because he was passing the dump truck on the right hand side and collided with it.


4.         The parties are self-represented, with ICBC represented by an employee.


JURISDICTION AND PROCEDURE
5.         These are the formal written reasons of the tribunal. The tribunal has jurisdiction over small claims brought under section 3.1 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.


6.         The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because while there are inconsistencies in the evidence about the circumstances of the collision, I find I can fairly resolve the dispute based on the documentary evidence before me. This conclusion is consistent with the court’s observations of the tribunal’s processes in the recent decision in Yas v. Pope, 2018 BCSC 282.


7.         The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.


8.         Under tribunal rule 126, in resolving this dispute the tribunal may: order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate.


9.         Mr. Chatrath, the dump truck driver is not a party to this dispute. However, in the interests of fairness he was granted the opportunity to provide a statement and submission to the tribunal.


ISSUES
10.      The issues in this dispute are:


a.      Did ICBC properly assess the applicant as 100% liable for the collision?


b.      If not, should the applicant’s $300 insurance deductible be refunded?


EVIDENCE AND ANALYSIS
11.      In a civil claim such as this, the applicant bears the burden of proof, on a balance of probabilities. I have only addressed the evidence and arguments to the extent necessary to explain my decision.


12.      In this dispute, the applicant seeks an order overturning ICBC’s 100% liability assessment against him, and a refund of his wife’s insurance deductible. To succeed, the applicant must prove on a balance of probabilities that ICBC breached its statutory obligations or its contract of insurance, or both. The issue here is whether ICBC acted “properly or reasonably” in administratively assigning 100% responsibility for the collision to the applicant (see Singh v. McHatten, 2012 BCCA 286).


13.      At the time of the collision, the applicant was driving a compact car owned by his wife. Both the applicant’s car and dump truck driven by Mr. Chatrath were travelling in the same direction (south), approaching a 4-way stop intersection. There were 2 southbound lanes. The leftmost southbound lane was unmarked, allowing for traffic to proceed straight through the intersection or to turn left. The right lane was marked with an arrow indicating right turn only.


14.      The applicant’s written statement describes the subsequent events, which I paraphrase as follows:


•           When the applicant approached the intersection in the right southbound lane, the dump truck and at least 1 other car were stopped in the left southbound lane, and waiting at the stop sign. All vehicles in the left lane were completely within their lane of travel, and the dump truck had its left turn signal on.


•           There was another vehicle stopped at the right lane at the stop sign, waiting to turn right. The applicant “pulled up to the vehicle waiting to turn right” and came to a complete stop, with his right turn signal on. The applicant was completely within his lane of travel. The dump truck was behind and beside the applicant, to his left.


•           After a few seconds, vehicles in both lanes ahead of the applicant started moving. The applicant was completely stopped when he felt impact on his vehicle and heard loud crunching. He realized the dump truck from the left lane struck his vehicle on the rear bumper and rear quarter area. He honked his horn several times, and the dump truck stopped.


•           After a few seconds, the dump truck continued moving forward and impacted the applicant’s vehicle along the rear driver’s side door. The applicant honked several times again. The dump truck stopped, and the applicant quickly pulled forward away from the dump truck in the event it began moving again.


•           The applicant stopped his vehicle and got out. When he spoke to the dump truck driver, the driver said he did not see the applicant.


•           The applicant took photographs of the scene before they both moved their vehicles.


15.      The applicant says that immediately before the collision, the dump truck was fully within the left lane, with its left turn signal on. The applicant says the dump truck did not move over into the right lane until it struck the applicant from behind.


16.      The dump truck driver, Mr. Chatrath, provided a statement to ICBC giving a contrary account of events. He said he approached the intersection in the right lane and was the only vehicle at the intersection. He says he wanted to turn right at the stop sign, so he straddled the right and left lanes in order to make a wide right turn. He says he stopped at the stop sign with his right turn signal on, and started making the right turn when the applicant “attempted to sneak past” him in the right lane. Mr. Chatrath said that as he proceeded to turn right, he felt a bump and immediately stopped.


17.      Based on the applicant’s written statement, he admits that he passed the dump truck on the right. The applicant says the dump truck was already waiting in line in the left lane at the stop sign when he approached the intersection, and then he passed the dump truck in the right lane in order to turn right. Section 158(1) of the MVA says that a driver must not overtake and pass on the right of another vehicle except in specified circumstances. These circumstances include the following:


•           when the vehicle overtaken is making a left turn or its driver has signalled his or her intention to make a left turn,


•           when on a laned roadway there is one or more than one unobstructed lane on the side of the roadway on which the driver is permitted to drive.


18.      Section 158(2) of the MVA also says a driver must overtake and pass another a vehicle on the right only when the movement cannot be made safely.


19.      Thus, the central conflict in this dispute is whether Mr. Chatrath was turning right at the time of the collision, or whether he was signalling to turn left and then hit the applicant.


20.      ICBC says the applicant was 100% at fault for the accident because he was passing the dump truck on the right at the time of the collision. ICBC says this decision was based on the information provided by the applicant and Mr. Chatrath, as well as the accident scene photographs provided by the applicant and the photographs of the damage to the applicant’s car. In particular, ICBC says the photographs show that the applicant’s left rear bumper was pulled backwards, which is consistent with the applicant driving forward at the time of the collision. ICBC says the applicant collided with the dump truck, which was stopped.


21.      I do not agree with ICBC’s submissions as set out in the Dispute Response, as they are not consistent with Mr. Chatrath’s January 17, 2017 statement or the January 19, 2017 summary of Mr. Chatrath’s accident description contained in the ICBC file notes. In particular, Mr. Chatrath never said his vehicle was stopped at the time of the collision. Rather, in the January 17, 2017 statement, he said he had just moved from the stop sign to turn right, and started to turn right in first gear. He said he felt a bump “as I proceeded”. The January 19, 2017 summary does not mention the actual collision at all, but only describes the preceding events.


22.      Also, ICBC submits that Mr. Chatrath was stopped behind 1 vehicle at the stop sign, so he would be very close to the intersection. In the 2 statements provided in evidence, Mr. Chatrath never said he was stopped behind 1 vehicle. Rather, in his January 17, 2017 statement, he said “I was the only vehicle at the intersection”. Neither of his statements mention any vehicles at the intersection other than the applicant’s.


23.      The January 19, 2017 summary contained in the ICBC claim file indicates that Mr. Chatrath said he stopped at the stop sign, and then the applicant attempted to sneak by him and the collision occurred. I find that this account is inconsistent with the photographs taken at the accident scene. These photographs show debris, including glass or plastic fragments, laying on top of the white-painted right turn arrow on the road. This is at least 1 car length behind the stop line and the stop sign. I find that these fragments came from the applicant’s vehicle, based on the damage photographs provided in evidence. Thus, the collision occurred well back from the stop sign. If Mr. Chatrath was turning right after stopping at the stop sign at the time of the collision, as set out in the January 19 summary, the accident debris would have to be much closer to or past the stop sign, instead of well back from the intersection.


24.      I also note that based on the post-accident photographs, the dump truck wheels are all pointing straight ahead, rather than turned to the right. The dump truck is still well behind the stop sign. This visual evidence does not support Mr. Chatrath’s account of a collision during a right turn from the stop sign with an immediate stop thereafter. I note that the January 19 summary says Mr. Chatrath stopped after the collision, and does not say he straightened his wheels or moved the truck in any way.


25.      I find that ICBC’s findings about the accident do not account for these inconsistencies in the evidence. Rather, I find the accounts provided by the applicant to be more consistent.


26.      For reasons that are unclear, ICBC did not obtain a statement from JI, who was a passenger in the applicant’s car at the time of the accident, and who was the only identified non-driver eyewitness. JI’s written statement provided as evidence in this dispute says they stopped at the intersection in the far right lane, with around 2 cars in front of them at the intersection. JI says the left rear of their car was then hit from behind by the truck. JI says the truck continued to drive forward, still hitting their car, and then stopped. He says the applicant then drove his car forward and a little bit away from the truck.


27.      I find that JI’s account of the collision is substantially similar to the applicant’s. JI’s statement is clear and contains some level of detail. I find it persuasive and place significant weight on it.


28.      The applicant went through ICBC’s internal claims assessment review process. The written decision he received says the applicant performed a “right turn overtake”, and was therefore 100% responsible. The ICBC arbiter relied primarily on the photographs of the damage to the applicant’s vehicle, which show the rear bumper cover “pulled back”, “suggesting that his vehicle was in forward motion at the time of the initial impact.”


29.      ICBC owes the applicant a duty of good faith, which requires ICBC to act fairly, both in how it investigates and assesses the claim and as to its decision about whether to pay the claim (see Bhasin v. Hrynew, 2014 SCC 71 at paras. 33, 55, and 93). As noted in the Continuing Legal Education Society of BC’s ‘BC Motor Vehicle Accident Claims Practice Manual’, an insurer is not expected to investigate a claim with the skill and forensic proficiency of a detective. An insurer must bring “reasonable diligence, fairness, an appropriate level of skill, thoroughness, and objectivity to the investigation and the assessment of the collected information (see McDonald v. insurance Corp. of British Columbia, 2012 BCSC 283). I find ICBC has not done so in this case.


30.      In particular, ICBC failed to seek a statement from eyewitness JI, and also failed to say why. I also find that ICBC failed to consider that the location of the accident debris shown in the scene photographs in inconsistent with Mr. Chatrath’s account of a collision during a right turn commenced after stopping at the stop sign. The ICBC liability review document does not even mention the applicant’s assertion that the dump truck was preparing to perform a wide left turn at the time of the collision.


31.      ICBC submits that dump truck’s right turn signal was activated at the time of the collision. However, this is not clear from the photographs in evidence, and in any event is not determinative because the photographs were taken several minutes after the accident and could have been turned on after the collision.


32.      ICBC submits that the “kinking” shown in some of the damage photographs of the applicant’s car is consistent with a side impact. However, ICBC has provided no expert opinion to support that assertion. Moreover, ICBC has not provided a corresponding explanation of how the dump truck’s front bumper was scraped during a right turn. Based on the photographs, during such a turn the large front wheels would effectively block the dump truck bumper from being hit from behind by a small car such as the applicant’s. Thus, the dump truck damage does not appear consistent with Mr. Chatrath’s account of a collision during a right turn from the stop sign.


33.      It also appears that ICBC did not inspect the dump truck, and did not take the dump truck damage into account when determining the crash events.


34.      For these reasons, I find that ICBC’s conclusion that the applicant was 100% responsible due to passing on the right was not reasonable. Instead, I find that Mr. Chatrath struck the applicant’s vehicle on the left rear panel and bumper, and was 100% responsible for the collision.


35.      I therefore find that the $300 deductible for the applicant’s car insurance (owned by his wife), must be refunded.


36.      Under section 49 of the Act, and the tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees. As the applicant was successful in this dispute, I order that the respondent pay the applicant $125 as reimbursement for tribunal fees. There were no dispute-related expenses claimed.


37.      The applicant is also entitled to pre-judgment and post-judgment interest under the Court Order Interest Act (COIA), as set out below in my order.


ORDERS
38.      I order that within 30 days of this decision, the respondent refund the $300 insurance deductible for the applicant’s wife’s car, plus $3.92 in pre-judgment interest under the COIA and $125 as reimbursement of tribunal fees.


39.      The applicant is entitled to post-judgment interest under the COIA.


40.      Under section 48 of the Act, the tribunal will not provide the parties with the Order giving final effect to this decision until the time for making a notice of objection under section 56.1(2) has expired and no notice of objection has been made. The time for filing a notice of objection is 28 days after the party receives notice of the tribunal’s final decision.


41.      Under section 58.1 of the Act, a validated copy of the tribunal’s order can be enforced through the Provincial Court of British Columbia. A tribunal order can only be enforced if it is an approved consent resolution order, or, if no objection has been made and the time for filing a notice of objection has passed. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.








Kate Campbell, Tribunal Member


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