Date Issued: December 11, 2018

File: SC-2018-000989

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Johl v. Moyes, 2018 BCCRT 833

Between:

Armand Johl

APPLICANT

And:

Emily Moyes

RESPONDENT

INTRODUCTION

1.      On June 14, 2017, the applicant, Armand Johl, was involved in a motor vehicle accident (MVA) with the respondent, Emily Moyes. The parties disagree about how the MVA happened: whether the respondent reversed into the applicant or whether the applicant rear-ended the respondent.

2.      The respondent made an insurance claim with the Insurance Corporation of British Columbia (ICBC). ICBC decided the applicant was entirely responsible for the accident. The applicant disagrees with that decision and says the respondent is responsible. The applicant asks for an order that the respondent pay him $1,025.06, for the claim he paid, $300 for damages and $300 for decreased value of the applicant’s vehicle.

3.      The applicant represents himself. An ICBC employee represents the respondent.

 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 relationships between parties that may continue after the dispute resolution process has ended.

5.      The tribunal may decide the format of the hearing, including by writing, telephone, videoconferencing, or a combination of these. Some of the evidence in this dispute amounts to a “he said, she said” scenario as to how the collision occurred. 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. 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 the recent decision Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, in which the court recognized the tribunal’s process and 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 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 applicant was responsible for the MVA, and if so, what remedy is appropriate.

EVIDENCE AND ANALYSIS

9.      I have commented upon the relevant evidence and submissions only to the extent necessary to give context to these reasons.

10.   The applicant says the respondent caused the collision by reversing into his vehicle after stopping at a stop sign in front of the applicant. The respondent disagrees. She says that the applicant rear-ended her vehicle when she was slowing to stop at a stop sign, before turning right. It is undisputed that this was a low velocity collision and the vehicle damage was to the rear driver’s corner of the respondent’s vehicle and the front passenger’s corner of the applicant’s vehicle.

11.   The parties agree that the applicant’s vehicle was the rear vehicle. Consequently, the respondent says that section 162(1) of the Motor Vehicle Act requires the applicant to show that he did not cause the accident. I agree. Further, case law confirms this requirement (See Gibson v. Matthies, 2017 BCSC 839).

12.   In any event, in a civil dispute such as this the applicant bears the burden of proof on a balance of probabilities.

13.   The applicant says that the respondent admitted on video immediately after the accident that she reversed into his vehicle. I disagree. The video shows the applicant telling the respondent that the applicant was at a full stop and tried to reverse. In response, the respondent says not to “worry.” I do not accept this statement as an admission that the respondent reversed into the applicant. I find it is more likely that the respondent was using consoling words because of the applicant’s concerned demeanour. I also find that the applicant’s words are more likely to be understood as an admission that he was trying to reverse when he accidentally rear-ended the applicant’s vehicle.

14.   The applicant also presented undated statements from two witnesses who were allegedly travelling in his vehicle at the time of the accident. The first witness says he was sitting in the front passenger seat of the applicant’s vehicle. He allegedly saw the respondent’s vehicle at the corner. He said that the applicant’s vehicle was stopped and that as they waited for the respondent’s vehicle to make its right turn it suddenly reversed and struck the applicant’s vehicle.

15.   The second witness says he was sitting in the rear passenger seat of the applicant’s vehicle. He saw the applicant’s vehicle travelling no more than 10 km/hr when the respondent’s vehicle reversed into the applicant’s vehicle. He said there was no warning and the accident happened quickly but that he saw the applicant put his vehicle in reverse. The witness said it appeared that the respondent’s vehicle was trying to parallel park along the curb.

16.   The applicant also says that he thought the respondent was trying to parallel park along the right curb. I disagree that this was at all probable. The applicant’s own video evidence following the accident shows no vehicles along the right curb that would require the respondent to parallel park. If the respondent was going to park, she would simply need to pull up along the curb. I find that the applicant has offered no reasonable explanation why the respondent would have suddenly and unexpectedly reversed into his vehicle at or near the intersection.

17.   Where the evidence of the applicant and the two passengers in his vehicle differ from the evidence of the respondent, I prefer and accept the respondent’s evidence. The respondent’s evidence is most consistent with the physical evidence seen in the video. Further, the two witnesses gave contradictory evidence. One witness says the applicant’s vehicle was at a stop and the other witness says that the vehicle was going 10 km/hr.

18.   Additionally, given the video and my finding above about the allegation of parallel parking, I find that after the accident the applicant stopped his vehicle a significant distance from the intersection and the respondent’s vehicle. I also find that the respondent stopped her vehicle shortly before the intersection.

19.   The placement of the vehicles after the accident is most consistent with the respondent’s evidence that she had not yet reached the intersection when the accident occurred. And, that the respondent was slowing and not stopped when the accident occurred. Which, I find, is also consistent with the second witness recalling the applicant’s vehicle moving at the time of the accident.

20.   In contrast, if the two vehicles were stopped at or immediately before the stop sign at the time of the accident then following the impact the applicant must have reversed his vehicle a significant distance backwards down the road before stopping. I find this unlikely, given the evidence.

21.   I also find the applicant’s evidence does not show that he was following at a safe distance and that despite his care he could not avoid this low velocity collision.

22.   Given the conclusions above, I find the applicant’s claim must be dismissed. Consequently, I do not need to address the applicant’s argument that his vehicle decreased in value.

23.   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

24.   I order that the applicant’s claims, and therefore this dispute, are dismissed.