Date Issued: December 7, 2018

File: SC-2018-002317

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Ko v. Simulija, 2018 BCCRT 825

Between:

Wai Yuen Vincent Ko

Applicant

And:

Vanessa Simulija

Respondent

INTRODUCTION

1.      This dispute is about liability for an October 31, 2016 motor vehicle collision (MVA). The applicant, Wai Yuen Vincent Ko, says the respondent, Vanessa Simulija, was 100% responsible for the MVA. The applicant seeks an order that the Insurance Corporation of British Columbia (ICBC) correct its decision that the applicant was 25% liable, and instead designate the respondent 100% liable for the MVA. The applicant also seeks reimbursement of the $300 deductible he paid to ICBC. ICBC is not a named respondent in this dispute.

2.      The applicant initially named vehicle owner Tony Simulija as a second respondent to the dispute. Mr. Simulija did not file a Dispute Response Form, and the applicant has chosen to proceed with the dispute with Ms. Simulija as the sole respondent. I have amended the style of cause accordingly.

3.      The applicant is self-represented. The respondent is represented by an ICBC employee.

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. 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.

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 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

8.      The issue in this dispute is whether the respondent is 100% responsible for the MVA, and if so, what is the appropriate remedy.

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.

Preliminary Issue

10.   The applicant seeks an order that ICBC change its determination that the applicant was 25% liable for the MVA, and instead assign 100% liability to the respondent. As ICBC is not named as a party in this dispute, I have no authority to make orders against ICBC. However, I would not make that order in any event, for the following reasons.

Liability for MVA

11.   The parties agree that the collision occurred on October 31, 2016, and that it involved the Mercedes driven by the respondent and the Mitsubishi vehicle driven by the applicant. The parties agree that the applicant was in a westbound lane on Hastings Street, making a left turn at traffic light, and the respondent was travelling east on Hastings Street, in the far right lane of 3 lanes.

12.   ICBC initially determined that the applicant was 100% at fault, under section 174 of the Motor Vehicle Act, as he was making a left turn. Section 174 says that states that when a driver intends to turn left he must yield the right of way to traffic so close as to constitute an immediate hazard. However, the applicant appealed that decision. The ICBC arbiter determined that the respondent was 25% at fault because she was driving in the rightmost lane, which at the time of the collision was reserved for bicycles and buses only. He cited Kelly v. Yuen, 2010 BCSC 1794, as authority for his finding that a person driving in a restricted lane should make an allowance for the possibility that there will be a vehicle seeking to make a left turn.

13.   The crux of this dispute is that the applicant says that after the traffic light turned yellow he proceeded with his left turn, and the respondent’s vehicle then entered the intersection. He said he honked his horn for 2 seconds before the respondent hit him. The respondent disputes this, and says she was travelling in a straight line and the light was green when the applicant turned left and drove into her.

14.   At the accident scene, the police officer interviewed a witness, AP. AP did not know any of the parties, but was waiting at a nearby bus stop at the time of the collision. AP said she heard a thump and a crash, and when she looked to her left she saw that the applicant’s black car “was hit by” the respondent’s white car. She said she looked up and the light was green for vehicles travelling east and west on Hastings Street.

15.   Based on the evidence before me, I agree with the ICBC arbiter’s assessment that the applicant was 75% liable for the accident. The photo of damage on the front right corner of the applicant’s vehicle shows that he was well into his left turn when the collision occurred. As previously noted, under section 174 of the Motor Vehicle Act, a driver intending to turn left must yield to traffic so close as to constitute an immediate hazard. I agree with the arbiter that the fact that the respondent ought not to have been driving in the right lane does not entirely remove the respondent’s duty under section 174 to avoid hazards from other traffic while turning left. While the applicant argues that the respondent should have taken more care when crossing the intersection, section 174 is clear that the duty of care in such situations lies primarily with the driver turning left.

16.   The arbiter relied on AP’s statement that the traffic light was green, and I agree that her evidence is persuasive on this point. She was an independent bystander who was able to observe the events at the time, and her statement was documented by police at the scene. The arbiter also found, and I agree, that it is significant that AP did not report any honking before the crash sounds. Also, as noted by the arbiter, there is no evidence that the respondent was travelling at excessive speed.

17.   For all of these reasons, I find the ICBC liability assessment was correct. I dismiss the applicant’s claims, and this dispute.

18.   The tribunal’s rules provide that the successful party is generally entitled to recovery of their fees and expenses. The applicant was unsuccessful and so I dismiss his claim for reimbursement of tribunal fees. The respondent did not pay any fees and there were no dispute-related expenses claimed by either party.

ORDER

19.   I dismiss the applicant’s claim and this dispute.