Date Issued: January 6, 2020

File: SC-2019-006112

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Cronin v. ICBC, 2020 BCCRT 13

Between:

JANE CRONIN

Applicant

And:

INSURANCE CORPORATION OF BRITISH COLUMBIA and Sarah Virgi

Respondents

INTRODUCTION

1.      This small claims dispute is about liability for a June 24, 2019 motor vehicle collision. The applicant was involved in a collision with the respondent, Sarah Virgi, and says that the respondent, Insurance Corporation of British Columbia (ICBC) inappropriately determined that she was at fault. The applicant asks for an order to change the liability determination and that ICBC refund her $500 insurance deductible. The respondents disagree with the applicant’s position.

2.      The applicant is self-represented. The respondents are represented by an ICBC adjuster.

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.      Where permitted under section 118 of the CRTA, 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.    who is at fault for the collision, and

b.    whether the applicant is entitled to reimbursement of her $500 deductible.

EVIDENCE AND ANALYSIS

8.      In a civil dispute like this one, an applicant bears the burden of proof on a balance of probabilities. The parties provided evidence and submissions in support of their respective positions. While I have considered all of this information, I will refer only to what is necessary to provide context to my decision.

9.      As a preliminary matter, I will address ICBC’s submission that it is not a proper respondent to the applicant’s claims. A key issue in this dispute is whether ICBC acted reasonably in assigning full responsibility for the collision to the applicant. The British Columbia Court of Appeal held in Innes v. Bui, 2010 BCCA 322 that the issue of whether ICBC acted properly or reasonably in making its administrative decision to assign full responsibility for the collision to the plaintiff is strictly between the plaintiff and ICBC. On this basis, I find that ICBC is a proper respondent to the applicant’s claim.

10.   The collision occurred when the applicant was in the process of parallel parking her vehicle. The parties agree that the applicant’s bumper protruded approximately 2 inches into the driving lane. The respondent was driving her vehicle in that lane and an impact occurred between the 2 vehicles. In her statement to ICBC, Ms. Virgi stated that the “side of my car brushed the front corner of the other driver’s car”. The collision resulted in damage to the left front bumper of the applicant’s vehicle and a scrape on the bottom of the right rear door of Ms. Virgi’s vehicle.

11.   After an investigation, ICBC advised the applicant of its liability finding. ICBC relied upon section 169 of the Motor Vehicle Act (MVA), which says that a person must not move a vehicle that is stopped, standing or parked unless the movement can be made with reasonable safety and he or she first gives the appropriate signal. It also noted section 193 of the MVA, which provides that a driver of a vehicle must not cause the vehicle to move backwards unless the movement can be made in safety. ICBC determined that the evidence did not support negligence on Ms. Virgi’s part, and that the applicant was 100% responsible for the collision.

12.   The applicant’s position is that Ms. Virgi is responsible for the collision and that ICBC was not reasonable in assigning blame to her. She submits that section 193 of the MVA does not mean that a reversing driver is always at fault if a collision occurs. According to the applicant, Ms. Virji had ample room to pass, but did not take reasonable care when doing so.

13.   As noted, ICBC relied upon section 193 of the MVA in deciding that the onus was on the applicant to reverse her vehicle safely. The evidence contains an ICBC manager’s note that provides additional information about the rationale for the liability decision. The manager stated that the “damage to [Ms. Virgi’s] vehicle is to the passenger door. If the [applicant’s] vehicle was there to be seen and was already in the process of parallel parking the vehicle damage would be to the front right bumper of Ms. Virgi’s] vehicle. This supports the action of reversing after the other vehicle had safely passed the front of [the applicant’s] vehicle.”

14.   I find that ICBC’s analysis did not appear to consider the contents of Ms. Virgi’s statement. Ms. Virgi stated that she saw that the front left corner of the applicant’s vehicle was “out a couple of inches” from the parking spot, and she was not certain whether the applicant was leaving the spot or reversing into it. Ms. Virgi said that she “did not swerve” and “remained straight in my lane and kept going”. According to Ms. Virgi, she felt an impact when she was about half-way past the applicant’s vehicle. Therefore, I find that Ms. Virgi did not safely pass the front of the applicant’s vehicle before the collision. Further, the applicant’s reverse movement would have taken her vehicle farther away from, rather than closer to, Ms. Virgi’s vehicle.

15.   I find the evidence shows that the applicant was established in the lane of travel, first driving and then parking, before Ms. Virgi approached. I am satisfied that the applicant was the dominant driver with the right of way in these circumstances. I find that the applicant was there to be seen, and Ms. Virgi admits that she saw the applicant’s vehicle protruding out of the parking area into the lane of travel. I find that the collision did not occur because of the applicant’s reverse movement. Rather, it happened because Ms. Virgi (who as the servient driver had an obligation to yield) did not stop to allow the applicant to complete her parking maneuver or move to the left to pass safely. In the circumstances of this case, I find that ICBC did not act reasonably in its administrative decision to assign full responsibility for the collision to the applicant. I find Ms. Virgi is 100% responsible for the collision.

16.   The next consideration is the remedy. The applicant asks for reimbursement of her $500 deductible. However, according to the July 11, 2019 letter, the applicant did not have collision coverage with ICBC. The applicant did not dispute this statement, nor did she provide evidence of her secondary insurer, the amount of her deductible under that policy, or whether that deductible has been paid. In the absence of this evidence, I find that the applicant has not proven that she paid a $500 deductible, and dismiss this claim.

17.    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. As the applicant was not successful, I dismiss her claim for reimbursement of tribunal fees.

ORDER

18.   I dismiss the applicant’s claims, as the claimed damages are unproven.