Date Issued: March 19, 2021

File: SC-2020-008688

Type: Small Claims

Civil Resolution Tribunal

Indexed as: J.F. (Litigation Guardian of) v. ICBC, 2021 BCCRT 311

Between:

J.F. as Litigation Guardian of JF, minor

Applicant

And:

INSURANCE CORPORATION OF BRITISH COLUMBIA and
TYLER DYCK

Respondents

INTRODUCTION

1.      This small claims dispute is about a motor vehicle accident that occurred on July 20, 2019 in Vancouver, British Columbia.

2.      The minor applicant, JF, was southbound on Prior Street and turned left onto Milross Avenue, while the respondent, Tyler Dyck, was travelling eastbound on Milross Avenue. Their two vehicles collided. JF says he did not see Mr. Dyck before he started his turn and says Mr. Dyck should be held fully responsible for the accident because he was allegedly travelling at an unsafe speed. JF claims $947.36 for his vehicle repairs.

3.      The respondent insurer, Insurance Corporation of British Columbia (ICBC), insures both drivers. ICBC internally determined that JF was 100% liable for the accident because he turned left onto Milross Avenue when it was unsafe to do so.

4.      The respondents say JF was correctly found fully at fault for the accident and this dispute should be dismissed. ICBC also says JF has not made any claims against it, so the claims against ICBC should be dismissed.

5.      JF, a minor, is represented by his father, who is his litigation guardian in this proceeding. The respondents are both represented by an ICBC employee.

JURISDICTION AND PROCEDURE

6.      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.

7.      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, and I find that there are no significant issues of credibility or other reasons that might require an oral hearing. 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.

8.      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.

9.      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.

10.   As noted, ICBC says it is not a proper respondent to this dispute because JF has not made any claims against it. Initially, JF requested remedies against ICBC that were considered injunctive relief, but he later withdrew those requested remedies. While the CRT has consistently found that an insured may claim against ICBC if they believe that ICBC did not meet its statutory obligations or its contract of insurance, I find JF does not make those claims here. Rather, JF’s claims are only about whether Mr. Dyck is liable for the accident and JF’s damages if Mr. Dyck is found liable. Therefore, I find that JF has not made any claims against ICBC, and so I dismiss his claims against ICBC.

ISSUE

11.   The issue in this dispute is who is responsible for the July 20, 2019 accident, and to what extent, if any, JF is entitled to his claimed $947.36 in damages.

EVIDENCE AND ANALYSIS

12.   In a civil proceeding like this one, the applicant JF must prove his claims on a balance of probabilities. While I have read all of the parties’ evidence and submissions, I have only addressed the evidence and arguments to the extent necessary to explain my decision.

13.   It is undisputed that the accident occurred on Milross Avenue between Quebec Street and Main Street in Vancouver. Milross Avenue is relatively narrow, with street parking permitted on both sides and no centre line to separate eastbound and westbound traffic.

14.   Prior Street intersects Milross Avenue in a T-intersection. Milross Avenue is a through street at the intersection with Prior Street. However, there are no stop or yield signs on Prior Street to control traffic entering Milross Street. From the Google map photographs in evidence, I find that where Prior Street intersects with Milross Avenue, it is properly characterized as an alley or laneway, and Milross Avenue is the main roadway, which the parties do not dispute.

15.   At the time of the accident on July 31, 2020, JF was on his way to pick up a friend, KG, who lives on Milross Avenue. JF says he was on Prior Street and came to a stop before the sidewalk on Milross Avenue. He says he then creeped forward, looking to his right and left to check for oncoming traffic before making his left turn.

16.   JF says that while there were cars parked on the north side of Milross Avenue, both to the left and right of Prior Street, there was a gap in the parked cars to his right that gave him a clear sightline of traffic eastbound on Milross Avenue. JF says there were no cars coming, so he proceeded slowly into the intersection and made a slow left turn onto Milross Avenue. KG was waiting for him on the sidewalk on the south side of Milross Avenue.

17.   JF says that he was most of the way through his left turn when he heard Mr. Dyck honking. JF says he looked in his rearview mirror and saw Mr. Dyck about 3.5 car lengths behind him, approaching quickly. He also says Mr. Dyck was honking for about 3 seconds before colliding with the rear of his car.

18.   KG witnessed the accident and provided a December 22, 2020 statement for the purpose of this dispute that largely corresponds with JF’s version. KG stated that she saw JF stop on Prior Street, look both ways, and then slowly turn left onto Milross Avenue. KG stated that as JF was turning, she saw Mr. Dyck driving about 40 to 50 kilometres per hour down the middle of Milross Avenue and start honking. She said Mr. Dyck barely slowed down while he was honking, until about one second before the impact when he started braking rapidly. She said Mr. Dyck skidded as he began to brake, and the front corner of his car hit JF’s rear bumper.

19.   Mr. Dyck says that he was travelling straight down Milross Avenue when JF turned left in front of him. Mr. Dyck says that while he tried to brake, his ABS brakes locked, and he was unable to stop in time to avoid the accident.

20.   KG also recorded a video on her cell phone after the collision. However, I find the 2 video clips in evidence are largely unhelpful in determining how the accident happened given KG says she started taping about 5 seconds after the impact, and it is unclear whether the video shows the vehicles’ relative positions at the time of the impact.

21.   I find that section 176 of the Motor Vehicle Act (MVA) is relevant, as it deals with vehicles emerging from alleys, and I have found Prior Street was an alley. Section 176(2) says that a driver about to enter or cross a highway from an alley, lane, driveway, building or private road must yield the right of way to traffic approaching on the highway so closely that it constitutes an immediate hazard.

22.   So, the question is whether Mr. Dyck was an immediate hazard, so that JF was required to yield to him. An approaching vehicle is considered an immediate hazard if it is so close that the driver of the approaching vehicle would have to take some sudden or violent action to avoid a threat of a collision: Raie v. Thorpe (1963), 1963 CanLII 885 (BCCA) and Niloufari v. Movahedi, 2014 BCSC 680.

23.   Here, KG says that she saw Mr. Dyck approaching as JF was making his left turn, and JF says Mr. Dyck was only 3.5 cars lengths behind him when he first saw him in his rearview mirror. Therefore, I find that JF likely should have seen Mr. Dyck before starting his turn. It is also undisputed that Mr. Dyck applied his horn for about 3 seconds before the impact and that he applied his brakes, but they locked, and he skidded. I find that Mr. Dyke’s actions were sudden and necessarily taken in an attempt to avoid the collision. On balance, I find that Mr. Dyck was an immediate hazard and JF failed to yield to him as required by section 176(2) of the MVA. Therefore, I find JF bears some responsibility for the accident.

24.   I turn now to whether JF has proven that Mr. Dyck also bears any responsibility for the collision. As noted, JF says that Mr. Dyck is responsible because he was allegedly driving at an unsafe speed.

25.   JF made extensive submissions about mathematical calculations of speed and stopping distances, which he says show that Mr. Dyck was speeding and otherwise would have been able to stop in time to avoid the collision. JF used an online car stopping distance calculator, and he provided screenshots of the website showing some calculations. However, I note there is a disclaimer on the website that states it provides only estimates, and that actual stopping distances will vary “considerably” depending on road conditions, the car involved, and the alertness of the driver. I also note that JF applied a “thinking distance” of 0 seconds to his calculations, which appears to allot no time for the driver to see a hazard, decide to brake, and actually apply the brakes. I find I am unable to rely on this online tool to draw any conclusions about Mr. Dyck’s speed or the applicable stopping distance, and I place no weight on these calculations.

26.   It is undisputed that the speed limit on Milross Avenue is 50 kilometres per hour. Mr. Dyck says he was driving about 45 kilometres per hour. This is consistent with KG’s statement that Mr. Dyck was going 40 to 50 kilometres per hour. I note that the damage to both vehicles does not suggest a particularly high-speed impact. Given the evidence before me, I find Mr. Dyck was travelling at approximately 45 kilometres per hour before he started braking.

27.   JF argues that even if Mr. Dyck was going only 45 kilometres per hour, his speed was excessive relative to Milross Avenue’s short length, narrow width, visibility conditions, and various driveways along it. In support of his position, JF filed a December 10, 2020 email from a Vancouver Police Department Constable with the Traffic Support Unit, Mark Bouchey. Constable Bouchey stated in his email that while the speed limit on Milross Avenue is 50 kilometres per hour, traveling at that speed with parked cars on both sides would be “unreasonable” and he would expect people to slow down to a “reasonable speed” given the narrowness of the road. However, Constable Bouchey does not say what a reasonable speed would be, or whether travelling at 45 kilometres per hour in the circumstances of this accident was unreasonable.

28.   I note that the evidence shows the accident happened on a bright and sunny afternoon, and the roads were dry. I find on the evidence before me, I am unable to conclude that traveling at 45 kilometres per hour was unsafe or that Mr. Dyck was negligent for doing so. Further, I find there is no evidence before me that Mr. Dyck should have done something differently to avoid the collision. I find JF has not proven that Mr. Dyck bears any responsibility for the accident.

29.   I find JF is solely responsible for the accident, and I dismiss his claims.

30.   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. Given JF was unsuccessful, I find he is not entitled to reimbursement of his paid CRT fees. The respondents did not pay any fees and neither party claimed any dispute-related expenses, so I make no order.

ORDER

31.   I order JF’s claims, and this dispute, dismissed.