Date Issued: July 27, 2023

File: AR-2022-007367

Type: Accident Claims

Category: Accident Responsibility

Civil Resolution Tribunal

Indexed as: Cheng v. ICBC, 2023 BCCRT 630

BETWEEN:

STEVEN CHENG

 

APPLICANT

AND:

INSURANCE CORPORATION OF BRITISH COLUMBIA

 

RESPONDENT

REASONS FOR DECISION
Tribunal Member:	Andrea Ritchie, Vice Chair

INTRODUCTION

1.      This dispute is about accident responsibility.

2.      The applicant, Steven Cheng, was in a motor vehicle accident on June 2, 2022. Mr. Cheng says the respondent insurer, Insurance Corporation of British Columbia (ICBC), incorrectly determined responsibility for the accident. Although ICBC held him 75% responsible, Mr. Cheng says he should be held 0% responsible instead.

3.      ICBC says it acted reasonably in its liability assessment and determining fault for the accident.

4.      Mr. Cheng represents himself. ICBC is represented by an authorized employee.

JURISDICTION AND PROCEDURE

5.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over accident claims brought under section 133 of the Civil Resolution Tribunal Act (CRTA). Section 133(1)(d) of the CRTA and Part 2 of the Accident Claims Regulation give the CRT jurisdiction over accident responsibility determinations.

6.      Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

7.      Section 39 of the CRTA says that the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice.

8.      Section 42 of the CRTA says that the CRT 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 CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

Evidence

9.      Initially, neither party submitted the required CL722 form, discussed below. After requesting a copy of the CL722 from the parties, I allowed them each to make submissions about it. Only Mr. Cheng provided additional submissions, which I considered in my decision below.

ISSUES

10.   The issues in this dispute are:

a.    Whether ICBC acted improperly or unreasonably in assigned responsibility for the accident, and

b.    If so, to what extent is Mr. Cheng responsible for the accident?

BACKGROUND, EVIDENCE AND ANALYSIS

11.   In a civil claim such as this, the applicant Mr. Cheng must prove his claim on a balance of probabilities, meaning “more likely than not”. 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.

12.   On June 2, 2022, Mr. Cheng was parked facing west in the curb lane of Hastings Street just before Ellesmere Avenue in Burnaby, British Columbia. From the dash camera footage in evidence, Mr. Cheng was the first vehicle parked there, with no parked vehicle in front of him.

13.   Hastings Street is 3 lanes in each direction at Ellesmere Avenue. Mr. Cheng moved his vehicle from the curb lane on Hastings Street into the middle westbound travel lane and began to cross the intersection with Ellesmere Avenue. At the same time, a third party, ML, was traveling in the left lane of eastbound Hastings Street and started turning left onto northbound Ellesmere Avenue. The two vehicles collided in the intersection.

14.   There are no traffic control devices for east or westbound traffic on Hastings Street at Ellesmere Avenue.

15.   Both Mr. Cheng and ML provided statements to ICBC. Additionally, 2 independent witnesses (C and DS) also provided statements. Mr. Cheng also provided his dash camera footage of the accident.

16.   Mr. Cheng alleges that ICBC did not properly consider DS’s statement. He says ICBC failed to further investigate the claim and “turned a blind eye” to DS’s statement. Further, Mr. Cheng alleges neither ML nor C are credible, and their statements should not be given any weight. I address these statements below.

17.   To succeed in his claim against ICBC, Mr. Cheng must first prove ICBC acted improperly or unreasonably in assigning responsibility for the accident to him. Second, Mr. Cheng must prove that he is less responsible for the accident than ICBC assessed.

18.   Further to section 10 of the ACR, both parts of this test must be proven. This means that even if Mr. Cheng can prove he is less responsible for the accident than ICBC assessed, he will not be successful in his claim if he cannot prove ICBC acted improperly or unreasonably.

19.   I turn to the first part of the 2-part test.

Did ICBC act improperly or unreasonably in assigning responsibility for the accident?

20.   Section 10(a) of the ACR essentially codifies the existing case law about whether ICBC acted “properly or reasonably” in administratively assigning responsibility for accidents (see: Singh v. McHatten, 2012 BCCA 286 referring to Innes v. Bui, 2010 BCCA 322). To succeed in his claim, Mr. Cheng must prove ICBC acted improperly or unreasonably in assigning him 75% responsibility for the June 2, 2022 accident.

21.   As noted above, Mr. Cheng says ICBC did not properly consider each of the witness statements. ICBC says it took multiple statements from each of the drivers involved in the accident, as well as contacted both witnesses provided. After obtaining statements from both witnesses, as well as reviewing Mr. Cheng’s dash camera footage, it made its determination of liability for the accident. ICBC argues it acted reasonably in its liability investigation and responsibility assessment.

22.   The parties each provided a copy of a lengthy, 38-page long, CL722. The September 21, 2022 CL722 says that ICBC found Mr. Cheng 75% responsible for breaching section 169 of the Motor Vehicle Act (MVA). Section 169 says that a driver must not move a vehicle that is stopped unless the movement can be made safely and after giving the appropriate signal.

23.   The CL722 shows that ICBC obtained statements from Mr. Cheng, ML, C, and DS. It also considered the dash camera footage provided by Mr. Cheng.

24.   The witness, C, gave a telephone statement to ICBC on June 17, 2022. In that statement C incorrectly stated ML was crossing Hastings Street from a side street, not that they were turning left from Hastings on to Ellesmere Avenue. They stated Mr. Cheng “suddenly accelerated” from his curbside parking spot and collided with ML’s vehicle in the intersection.

25.   The witness, DS, gave a telephone statement to ICBC on July 29, 2022. In their statement they said they were standing outside the restaurant on Hastings Street that Mr. Cheng was parked in front of. They said Mr. Cheng pulled out onto Hastings Street from his parking spot and started driving on Hastings Street when ML’s vehicle going the opposite direction started turning left onto Ellesmere Avenue. DS stated ML was driving “extremely fast” and “made a sharp left turn”. They said they were able to see that ML was on their phone, and remained on the phone when they exited their vehicle after the accident. DS says they heard ML say “I have to go before he sees me on my phone”.

26.   In the CL722 package it sent to Mr. Cheng, ICBC attached its claim notes. After DS called to provide their statement, an ICBC employee noted they had called in, but that “liability already resolved”, and that no further action was needed because there was dash camera footage. I note that in the body of the September 21, 2022 CL722 letter, ICBC references Mr. Cheng’s, ML’s, and C’s statements, but did not include DS’s statement. I also note there is no evidence before me ICBC ever asked ML or otherwise investigated whether ML was on their phone at the time of the accident.

27.   Given ICBC’s internal claim note, the fact it excluded DS’s statement from the body of the CL722, and no evidence of follow-up given the evidence about ML being on their phone, on balance I find that ICBC did not properly or reasonably consider DS’s statement when investigating the accident and assessing fault.

28.   So, I find Mr. Cheng has satisfied the first part of the 2-part test. I turn then to part 2.

Who is responsible for the June 2, 2022 accident?

29.   Section 10(b) of the ACR says that Mr. Cheng must show that he is less responsible for the June 2, 2022 accident than ICBC assigned him. As noted, ICBC held Mr. Cheng 75% responsible and Mr. Cheng argues he should be held 0% responsible.

30.   Mr. Cheng argues he was already established in his lane of travel after having pulled out from his parking spot, and that ML abruptly turned left in front of him, causing the accident. He argues his vehicle constituted an immediate hazard when ML started their turn.

31.   From the dash camera footage Mr. Cheng provided, his parked vehicle was approximately less than one car length from the intersection of Hastings Street and Ellesmere Avenue. Although he argues he was well established in his lane, I disagree. The footage shows that he was still changing lanes from the parking lane to the straight through travel lane as he crossed the intersection and the collision occurred.

32.   Section 151(a) of the MVA says a driver must not move from one lane to another unless the movement can be done safely and will in no way affect the travel of another vehicle. Section 151(b) says a driver must not drive a vehicle from one lane to another if it requires crossing a solid line. Here, the dash camera footage shows the line between Mr. Cheng’s parking lane and the straight through travel lane he moved into was solid. Therefore, Mr. Cheng crossed over a solid line while also changing lanes through the intersection of Hastings Street and Ellesmere Avenue.

33.   Further, as noted above, section 169 of the MVA says a driver must not move a vehicle that is stopped, standing or parked unless the movement can be made with reasonable safety and with the appropriate signal. Here, I find Mr. Cheng moved his vehicle from a place of safety immediately into a lane change over a solid line and into an intersection, when it was not safe to do so. I find Mr. Cheng breached both sections 151 and 169 of the MVA, contributing to the June 2, 2022 accident.

34.   However, I also find that ML was negligent. In an undated statement provided to ICBC, ML stated they were eastbound on Hastings Street, arrived at the intersection with Ellesmere Avenue and “came to a stop” while “waiting for a safe time to turn left”. They reiterated they were fully stopped, and once the intersection was clear, they made their left turn. ML’s statement is silent about whether they were on the phone at the time of the accident and, as noted above, there is no evidence before me that ICBC ever asked ML that question after receiving DS’s statement.

35.   In any event, the dash camera footage clearly shows that ML did not come to any stop before starting their left turn on Ellesmere Avenue. In fact, the video shows ML did not even slow down, but rather appears to “cut the corner” and start their turn early while crossing over a solid white line. I find ML breached section 155(1)(c) of the MVA which requires drivers to stay on the right side of a solid centre line unless they are passing.

36.   Additionally, section 174 of the MVA says a driver turning left must yield to oncoming traffic that is either in the intersection or so close to the intersection that it is an immediate hazard. The time to determine whether a vehicle constitutes an “immediate hazard” arises the moment before the driver proposing to turn left starts their turn, not at an earlier point (see: Raie v. Thorpe (1963), 1963 CanLII 885 (BCCA)). Here, I find ML failed to properly assess whether their left turn could be made safely, given their failure to slow or stop their vehicle before starting their turn. Although DS said ML did not signal their intention to turn, I find the dash camera footage shows their left turn signal illuminated.

37.   Given ML’s breaches of section 155 and 174 of the MVA, I find their driving fell below a reasonable standard. I find ML’s negligence also contributed to the June 2, 2022 accident.

38.   On the evidence before me, I am unable to determine who is “more” at fault for the accident. Section 1(2) of the Negligence Act says that if it is not possible to establish different degrees of fault, liability must be apportioned equally. So, I find Mr. Cheng and ML each equally responsible for the June 2, 2022 accident.

39.   As I have found ICBC acted improperly and unreasonably and that Mr. Cheng is less responsible than ICBC found him, Mr. Cheng’s claim is successful.

FEES, EXPENSES AND INTEREST

40.   Under section 49 of the CRTA, and the CRT rules, a successful party is generally entitled to the recovery of their tribunal fees and dispute-related expenses. As Mr. Cheng was successful, I order ICBC to reimburse him $50 in paid tribunal fees. He did not claim dispute-related expenses.

ORDERS

41.   Within 14 days of the date of this decision, I order ICBC to amend its internal responsibility assessment to reflect that Mr. Cheng is 50% responsible for the June 2, 2022 accident.

42.   Within 21 days of the date of this decision, I order ICBC to pay Mr. Cheng $50 as reimbursement for tribunal fees.

43.   Mr. Cheng is also entitled to post-judgment interest under the Court Order Interest Act.

44.   Under section 57 and 58 of the CRTA, a validated copy of the CRT’s order can be enforced through the Supreme Court of British Columbia or the Provincial Court of British Columbia if it is under $35,000. Once filed, a CRT order has the same force and effect as an order of the court that it is filed in.