Date Issued: January 8, 2020

File: SC-2019-006806

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Yorsh v. Charles, 2020 BCCRT 32

Between:

JOCK YORSH

Applicant

And:

JACK WILLIAM JR CHARLES and INSURANCE CORPORATION OF BRITISH COLUMBIA

Respondents

INTRODUCTION

1.      This is a small claims dispute about a motor vehicle accident that occurred on March 1, 2019 (accident).

2.      The respondent insurer, Insurance Corporation of British Columbia (ICBC) internally concluded that the applicant Jock Yorsh was 100% responsible for the accident.

3.      Mr. Yorsh seeks a reversal of the ICBC’s liability determination for the accident. Mr. Yorsh says the other driver, the respondent Jack William Jr Charles, is wholly responsible for the accident. Mr. Yorsh says that, as the driver of his car was changing lanes, Mr. Charles drove too fast and collided with it.

4.      Mr. Yorsh asks that liability be assessed against Mr. Charles at 100%, and that the accident be removed from his driving record. Mr. Yorsh also seeks reimbursement of a $500 deductible paid to ICBC and $6.66 for what he describes as time spent on the dispute and repairing his car.

5.      ICBC says it is not the correct respondent in this dispute. ICBC says the applicant should name Foss National Leasing Ltd. (Lessor) & Arrow Transportation Systems Inc. (Arrow) (Lessee). ICBC says it insures Arrow with respect to third party motor vehicle accident claims. Given my conclusions below, I find that I need not address this issue.

6.      Mr. Charles says ICBC’s liability determination should stand. He says Mr. Yorsh’s vehicle changed lanes, hitting his car, as confirmed by the dash cam footage. Mr. Charles asks that the dispute be dismissed.

7.      The applicant is self-represented. The respondents are both represented by ICBC employee Verina Nguyen.

JURISDICTION AND PROCEDURE

8.      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.

9.      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.

10.   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.

11.   Where permitted by section 118 of the CRTA, in resolving this dispute the tribunal may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the tribunal considers appropriate.

ISSUES

12.   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 Mr. Yorsh, what is the appropriate remedy?

EVIDENCE AND ANALYSIS

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

14.   Mr. Yorsh raised concern about the quality of the dash cam recording he filed in evidence. I find that the footage filed in evidence was clear and reliable.

15.   Based on the dash cam footage filed in evidence by Mr. Yorsh, I find that the details of the accident are as follows.

16.   Mr. Yorsh’s car was travelling northbound on Hemlock Street in the rightmost lane of two lanes. Mr. Yorsh’s car made a lane change to the left-hand lane, due to an upcoming lane closure for construction requiring a merge. At the same time, Mr. Charles’ car was continuing straight ahead in the leftmost lane. When Mr. Yorsh’s car changed lanes, the cars collided.

17.   ICBC assessed 100% fault to Mr. Yorsh. The applicant says Mr. Charles should be found 100% at fault.

Is the applicant entitled to a reapportionment of fault for the accident and reimbursement of his $500 deductible?

18.   Given the overall evidence, I find that ICBC did not breach its statutory obligations or its contract of insurance. Mr. Yorsh did not explicitly argue that ICBC conducted an improper or incomplete investigation but focused on their allegedly wrong conclusion. I find ICBC acted reasonably in administratively assigning Mr. Yorsch 100% responsibility for the accident (see Singh v. McHatten, 2012 BCCA 286).

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

20.   For the reasons that follow, I dismiss Mr. Yorsh’s claim for re-apportionment of liability and damages. I find he has not proven, on a balance of probabilities, that Mr. Charles was at fault for the accident.

21.   Section 151(a) of the Motor Vehicle Act (MVA) says that a driver on a laned roadway must not change lanes unless the driver as ascertained that it can do so safely and without affecting the travel of another vehicle. I find that, because Mr. Yorsh’s vehicle was making a lane change when it hit Mr. Charles’ vehicle which was already established in that lane, this section applies and makes Mr. Yorsh liable.

22.   Based on the dash cam footage, I find that Mr. Charles’ car would have been seen approaching in the leftmost lane if the driver of Mr. Yorsh’s vehicle had performed a shoulder check as I find they should have done before changing lanes.

23.   Mr. Charles was established and travelling in his lane.

24.   I find that the construction zone and merge warning signs should have alerted the driver of Mr. Yorsh’s car to slow down and only merge when it was safe to do so. I say this because the signs indicated that the right lane was closing, whereas the left lane remained open.

25.   It was also open to the driver of Mr. Yorsh’s vehicle to simply stop at the merge point and wait to change lanes until there was a safe opening. Another vehicle on the dash cam footage is stopped, waiting to make the merge safely, even as Mr. Yorsh’s vehicle makes the lane change.

26.   Mr. Yorsh submits that Mr. Charles was speeding before the accident, and that Mr. Charles’ vehicle is capable of particularly quick acceleration. Mr. Yorsh also submits that Mr. Charles committed traffic violations at other times. These submissions do not excuse Mr. Yorsh from the obligations under section 151(a) of the MVA.

27.   Contrary to Mr. Yorsh’s suggested calculations, I find that the dash cam footage shows Mr. Charles’ car slowing at the point of the merge. I find the applicant did not prove that Mr. Charles’ car was speeding at the time of the collision. Given my conclusion on liability, it is not necessary for me to address the damages claimed by Mr. Yorsh.

28.   I dismiss Mr. Yorsh’s claims and his dispute.

29.   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 respondents did not pay tribunal fees or claim dispute-related expenses.

ORDER

30.  I dismiss Mr. Yorsh’s claims and this dispute.