Date Issued: March 19, 2021

File: SC-2020-007267

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Sun v. British Columbia Ferry Services Inc., 2021 BCCRT 310

Between:

YUEFENG SUN also known as RAYMOND SUN

Applicant

And:

BRITISH COLUMBIA FERRY SERVICES INC.

Respondent

INTRODUCTION

1.      This dispute is about liability for a collision. The applicant, Yuefeng Sun also known as Raymond Sun, purchased ferry fare from the respondent, British Columbia Ferry Services Inc. (BC Ferries). During vehicle boarding, a BC Ferries employee told Mr. Sun to back up and turn around because the lower deck was full. Mr. Sun backed his vehicle into a concrete pole. He says BC Ferries is responsible for the accident and seeks $2,500 in car repair fees, other related costs, and interest. Mr. Sun says the accident affected his health, but he does not claim for any personal injuries.

2.      BC Ferries denies the claim. It says Mr. Sun is entirely responsible for the accident because he failed to keep a proper lookout.

3.      Mr. Sun represents himself. A claims adjuster represents BC Ferries.

4.      For the reasons that follow, I find Mr. Sun is 100% responsible for the collision. I dismiss his claims.

JURISDICTION AND PROCEDURE

5.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between the dispute’s parties that will likely continue after the CRT process has ended.

6.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice.

7.      Section 42 of the CRTA says the CRT 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 CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

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

ISSUE

9.      The issue in this dispute is whether BC Ferries is liable for the accident, and if so, what remedies are appropriate.

EVIDENCE AND ANALYSIS

10.   In a civil claim like this one, Mr. Sun as the applicant must prove his claims on a balance of probabilities. I have reviewed all the evidence and submissions but only address them to the extent necessary to explain my decision.

11.   The facts are largely undisputed. Mr. Sun purchased a ticket from BC Ferries for vehicle ferry services. On March 8, 2020, Mr. Sun began boarding a docked ferry. BC Ferries’ staff directed Mr. Sun to drive his vehicle onto the ferry’s lower deck. Shortly before driving aboard, staff advised Mr. Sun that the lower deck was full. They advised him to turn around to enter the upper deck.

12.   What happened next was captured on video and witnessed by BC Ferries’ staff. The video footage and witness statements are in evidence. The footage shows the following. Mr. Sun’s vehicle was on a paved road that ended with a ramp onto the ferry. It was daytime. Mr. Sun backed up and turned to his left to complete a 3-point turn. While turning in reverse, Mr. Sun hit the concrete pole. The pole and point of impact are off camera. However, the footage shows the front half of Mr. Sun’s vehicle jarred from the impact and 2 bystanders reacted in shock. Photos of the damage show Mr. Sun hit the pole on his driver-side, rear-bumper area of his vehicle. This left sizeable dents. In the footage, Mr. Sun stopped then turned to his right and drove forward to complete the 3-point turn.

13.   BC Ferries also provided numerous photos of the concrete pole and surrounding area. I find they accurately reflect what the pole and the surrounding area looked like at the time of the accident. Mr. Sun does not say otherwise. The photos show the following. The pole was of significant width and height as it supported an overhead structure. Its lower portion was painted yellow. It was located off the road, a few feet behind a white painted line. The line showed the edge of the road. There was no curb. As noted above, the road led to the embarking ramp. The photos also show a nearby concrete divider and an orange safety cone, but I find nothing turn on these items.

14.   Mr. Sun says the concrete pole was “hidden” and he “could not see it”. I disagree, and find the pole was unobscured and was there to be seen. I also find that there was ample room for Mr. Sun to turn around.

15.   On the same date as the accident, Mr. Sun filled out an incident report and a “notice of claim”. The latter document is not a court or tribunal document and I find it to be part of BC Ferries’ internal dispute resolution process. On March 9, 2020, a BC Ferries employee rejected Mr. Sun’s claim for compensation. Mr. Sun then filed his CRT application for dispute resolution.

Is BC Ferries liable for the accident, and if so, what is the appropriate remedy?

16.   Mr. Sun says that BC Ferries caused the accident by miscounting the number of vehicles in the lower deck. He says this caused him to reverse into the concrete pole.

17.   Mr. Sun did not provide a legal basis for his claim. I find it is essentially one of negligence. The test for negligence is set out by the Supreme Court of Canada in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at paragraph 3. In order to succeed in a negligence claim, the Mr. Sun must prove 1) BC Ferries owed Mr. Sun a duty of care, 2) BC Ferries breached the standard of care, 3) Mr. Sun sustained a loss, and 4) the loss was caused in fact and in law by BC Ferries’ negligence. The fourth factor considers whether the loss is too remote to warrant recovery.

18.   BC Ferries says Mr. Sun failed to keep a proper lookout while backing up, and this is the sole cause of the accident. I have therefore considered the law of negligence as it concerns driving in reverse. Section 193 of the Motor Vehicle Act (MVA) says the driver of a vehicle “must not in any event or at any place cause a vehicle to move backwards unless the movement can be made in safety”. Section 193 imposes a high standard of care on the conduct of a driver backing up. See, for example, Chaube v Neja, 2017 BCSC 1415 at paragraph 27.

19.   As stated in Carson v. Henyecz, 2012 BCSC 314 at paragraph 99, the duty imposed on a reversing driver is throughout the entire reversing procedure and to its completion. The object is to be aware as reasonably possible to what is behind the driver and in the driver’s path while in reverse.

20.   I find that Mr. Sun negligently reversed his vehicle. The video camera footage shows that Mr. Sun backed his vehicle up for approximately 11 seconds before colliding with the concrete pole. There is no indication the footage was sped up or slowed down. I find the concrete pole would have been readily visible to Mr. Sun if he had made any effort to see what was behind him. There is no indication that Mr. Sun was under any pressure to move quickly. I have also found the road was wide enough for Mr. Sun to complete his maneuver without difficulty. I find he had the time and opportunity to check what was in his path but did not do so, contrary to section 193 of the MVA. I conclude that Mr. Sun had a duty to look and moreover breached the standard of care by failing to see the pole.

21.   Although not necessary for my finding, I find the other evidence consistent with my conclusion. DJ, a BC Ferries employee, provided a March 8, 2020 witness statement. DJ wrote that 6 cars completed the same maneuver before Mr. Sun without issue. This is partially corroborated by the footage, which shows another car successfully completed a 3-point turn immediately before Mr. Sun. DJ also wrote that Mr. Sun ignored his instructions while backing up, and after the accident Mr. Sun advised him that he could not turn his neck prior to the accident because of neck pain.

22.   Mr. Sun disputes he was given any turning instructions or complained of pre-existing neck pain, but I prefer DJ’s evidence on the matter as it was created on the date of the accident. I also find Mr. Sun’s recollection less credible than DJ’s evidence because Mr. Sun described the concrete pole as “hidden” when I find that it was not. In any event, I would still find Mr. Sun negligent without DJ’s evidence.

23.   The question that remains is whether BC Ferries was negligent. BC Ferries says, and I agree, that it owed a duty of care to provide Mr. Sun a place to park his vehicle.

24.   BC Ferries does not deny asking Mr. Sun and 6 others to turn around because space ran out on the lower deck. I am not satisfied that BC Ferries breached the standard of care by doing so. Vehicles vary in weight and size. There is no evidence before me that BC Ferries knew or should have known, with greater precision, how many vehicles it could load on the lower deck in advance. Mr. Sun provided no evidence about the standard of care, such as any industry standards that might have been breached. His evidence was limited to proof of his damages and a personal statement.

25.   I acknowledge Mr. Sun’s argument that BC Ferries “caused” the accident by telling him to turn around. While I accept that Mr. Sun reversed his car because a BC Ferries employee told him to, this did not relieve Mr. Sun of his obligation under the MVA to do so safely and with a proper lookout. To prove liability, Mr. Sun must show that BC Ferries breached the standard of care, and this breach caused his loss. See Clements v. Clements, 2012 SCC 32 at paragraph 6. He has not done so.

26.   In summary, I find Mr. Sun is 100% responsible for this accident. It follows that I dismiss his claim.

27.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule.

28.   BC Ferries is the successful party. It paid no CRT fees and claimed no dispute-related expenses, so I order none.

ORDER

29.   I dismiss Mr. Sun’s claims and this dispute.