Date Issued: April 28, 2020

File: SC-2020-001088

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Hendry v. Mohseni, 2020 BCCRT 460

Between:

ROGER HENDRY

Applicant

And:

SHAHIN MOHSENI and
INSURANCE CORPORATION OF BRITISH COLUMBIA

Respondents

INTRODUCTION

1.      This small claims dispute is about liability for an August 6, 2019 motor vehicle collision. The applicant, Roger Hendry, says that the Insurance Corporation of British Columbia (ICBC), did not handle the claim properly and incorrectly determined that he, rather than the respondent, Shahin Mohseni, was liable for the collision. The applicant asks that the liability decision be reversed, and for an acknowledgement that Mr. Mohseni’s actions “obviate the application” of the Motor Vehicle Act (MVA) with respect to a following vehicle. Mr. Mohseni disagrees with the applicant’s position, and ICBC says that it is not a proper party to this dispute.

2.      The applicant is self-represented. ICBC and Mr. Mohseni are represented by an ICBC employee.

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 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

7.      The issues in this dispute are:

a.    whether ICBC beached its statutory obligations in investigating the collision and assessing fault, and

b.    whether the applicant is entitled to a different liability assessment.

EVIDENCE AND ANALYSIS

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

Did ICBC breach its statutory obligations?

9.      Although ICBC says it is not a proper party to this dispute, I disagree. The applicant says that ICBC was “deficient” and that its personnel demonstrated unspecified bias in handling the claim.

10.   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 a plaintiff is strictly between the plaintiff and ICBC. On this basis, I find that ICBC is a proper respondent to the applicant’s claim.

11.   The British Columbia Supreme Court decision in McDonald v. Insurance Corporation of British Columbia, 2012 BCSC 283 states at paragraph 249 that an insurer is “not expected to investigate a claim with the skill and forensic proficiency of a detective” and it is not required “to assess the collected information using the rigorous standards employed by a judge”. Instead, the insurer’s duty is to “bring reasonable diligence, fairness, an appropriate level of skill, thoroughness and objectivity to the investigation, and the assessment of the collected information.

12.   The evidence before me shows that, before making the decision that the applicant was at fault for the collision, ICBC obtained statements from both parties and 2 witnesses. It also obtained information from a police officer who attended the collision scene. While I acknowledge that the applicant disagrees with the outcome of ICBC’s assessment, I find that he has not established that ICBC breached its statutory obligations in investigating the collision and assessing fault. I also find that he has not established any bias on the part of the ICBC employees involved with the claim.

13.   I find that ICBC acted reasonably in administratively assigning 100% responsibility for the incident to the applicant (see Singh v. McHatten, 2012 BCCA 286). Accordingly, I dismiss the applicant’s claim against ICBC.

Who is liable for the collision?

14.   The collision occurred near the intersection of Hastings Street and Main Street in Vancouver. The applicant was riding his motorcycle and Mr. Mohseni was driving a Toyota. Both parties were driving in a westerly direction on Hastings Street.

15.   Although the parties agree that the collision occurred shortly after Mr. Mohseni made a lane change in front of the applicant, they do not agree on the circumstances. The applicant states that Mr. Mohseni made a lane change while in an intersection. The applicant says that, after changing lanes, Mr. Mohseni saw him in his rearview mirror and intentionally slammed on the brakes to “brake check” him. I take this to mean that the applicant thinks Mr. Mohseni deliberately braked to force him to take evasive action or run into the back of his vehicle. According to the applicant, he was unable to stop in time and there was a “very minor impact” between his motorcycle and the Toyota’s fender.

16.   Mr. Mohseni reported to ICBC that his lane change occurred just after, not in, the intersection. Mr. Mohseni says the applicant was upset with him for some reason and had one of his hands raised to make a gesture. According to Mr. Mohseni, he looked at the applicant in his rearview mirror and when he turned his eyes back to the road, there was a pedestrian in front of him. Mr. Mohseni stated that he braked to avoid striking the pedestrian. Mr. Mohseni suggested that the applicant was unable to stop in time as one of his hands was not on the motorcycle’s handlebars.

17.   Based on the evidence from the witnesses, it is apparent that the parties had some sort of altercation after the collision. The applicant says that Mr. Mohseni instigated the altercation. There is also an indication in the evidence that Mr. Mohseni became upset and shouted at an ICBC employee during the claims process. Although the applicant says Mr. Mohseni’s behaviour should be taken into account, I find that it is not determinative of liability for the collision.

18.   The applicant’s position is that Mr. Mohseni made an illegal lane change and did not stop for a pedestrian but instead deliberately “brake checked” him. As noted, the applicant bears the burden of proof. In order to be successful, he must prove that the collision occurred as he claims.

19.   I find that 2 sections of the MVA are relevant to my analysis. Section 151(a) of the MVA states that a driver must not drive a vehicle from one lane to another unless he or she has ascertained that the movement can be made safely and will in no way affect another vehicle’s travel. Section 162(1) of the MVA provides that a driver must not follow another vehicle more closely than is reasonable and prudent, having regard for the vehicles’ speed, the amount and nature of traffic, and the condition of the roadway. ICBC determined that the applicant, as the rear driver, had a duty not to follow too closely under section 162(1) of the MVA.

20.   As discussed above, ICBC obtained information from 3 witnesses. Witness A1, who was driving in the opposite direction on Hastings Street, saw Mr. Mohseni change lanes, but he did not comment on where the lane change occurred. A1 stated that when the light turned red, Mr. Mohseni “slammed on his brakes hard” and left the applicant with “nowhere to go”. A1’s perspective was that there was no need to do this as there was room between the Toyota and the vehicle in front. A1 did not see a pedestrian or other obstruction on the road. A1 admitted that he was talking with another motorist at the time.

21.   ICBC also spoke to witness A2, who was standing on the sidewalk waiting to cross the street. A2 did not witness any lane changes, but he did report seeing a male pedestrian crossing the road outside of the crosswalk. According to A2, Mr. Mohseni had to “slam on his brakes” due to the pedestrian’s presence. A2 stated that the pedestrian was still in the road in front of the Toyota after the collision. A2 said he spoke to the pedestrian and asked him to stay to be a witness, but the pedestrian left the scene.

22.   The notes created by the police officer who attended the scene (and who apparently witnessed at least part of the incident) stated that the “driver of the car suddenly stopped, causing the biker to brake suddenly but not enough time”. These notes did not mention any lane changes, the presence of a pedestrian in the road, or Mr. Mohseni’s reasons for braking.

23.   Although their recollections differ about the details, the applicant and Mr. Mohseni agree that Mr. Mohseni changed lanes in front of the applicant. Based on the evidence before me, I am unable to conclude that the lane change was unsafe. However, I am satisfied that the evidence, including that of the applicant, suggests that it was Mr. Mohseni’s braking rather than the lane change that precipitated the incident that led to the collision.

24.   The next consideration is whether Mr. Mohseni deliberately braked to force the applicant to stop. I find that the fact that Mr. Mohseni was upset after the collision (and during the ICBC claims process) does not prove that he braked intentionally. I place more weight on the evidence from the witnesses about the collision itself.

25.   Both Mr. Mohseni and A2 stated that there was a pedestrian in the road, while the applicant and A1 did not see a pedestrian, and the police officer did not mention the presence or absence of a person in the road. The applicant submits that A1’s statement should be given more weight as he saw more of the incident than A2. However, I find that A1’s observation that Mr. Mohseni braked despite there being room between him and the vehicle in front is also consistent with Mr. Mohseni stopping for a pedestrian. Further, the fact that A2 saw less of the incident does not lead to the conclusion that his evidence about the presence of a pedestrian (to whom he later spoke) should be discounted.

26.   Although not all the independent witnesses confirmed the presence of a pedestrian, A2 did. Even if there was no pedestrian, the evidence from the witnesses and the parties does not establish that Mr. Mohseni braked intentionally to force the applicant to stop. Based on the evidence before me, I find that the applicant has not proven his claim that Mr. Mohseni acted deliberately to “brake check” him.

27.   As a result, I find the applicant is not entitled to a different liability assessment for the collision. Given my conclusion that the applicant has not proved his claim, I find I do not need to address the fact that his request for an “acknowledgement” about Mr. Mohseni’s behaviour is, in essence, a request for declaratory relief. The tribunal does not have jurisdiction in a small claims dispute to grant declaratory relief, other than what is set out in section 118 of the CRTA.

28.   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 his claim for reimbursement of tribunal fees.

ORDER

29.   I dismiss the applicant’s claims and this dispute.