Date Issued: July 5, 2021

File: SC-2021-001533

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Wu v. Lee, 2021 BCCRT 731

Between:

YUSI WU

Applicant

And:

KWING HUNG LAWRENCE LEE and INSURANCE CORPORATION OF BRITISH COLUMBIA

Respondent

INTRODUCTION

1.      This small claims dispute is about a motor vehicle accident that occurred on January 18, 2021 in Richmond, British Columbia.

2.      The applicant, Yusi Wu, and the respondent, Kwing Hung Lawrence Lee, were both driving through a parking lot when their two vehicles collided. Miss Wu says that she had come to a complete stop before Mr. Lee collided with her vehicle. Miss Wu says that Mr. Lee is fully responsible for the accident, and she claims reimbursement of her $500 deductible.

3.      The other respondent, Insurance Corporation of British Columbia (ICBC), insures both Miss Wu and Mr. Lee. ICBC internally determined that Miss Wu was 100% liable for the accident. I am not bound by ICBC’s determination.

4.      The respondents say that ICBC correctly determined fault. They say Miss Wu drove without due care or attention and accelerated to pass Mr. Lee on the right, causing the accident. ICBC also says it is not a proper party to this dispute.

5.      Miss Wu is self-represented. 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. 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 a preliminary matter, I will address ICBC’s submissions that it is not a proper respondent to this dispute. The CRT has consistently found that an insured may claim against ICBC if they believe that ICBC did not meet its statutory or contractual obligations to reasonably investigate an accident. I agree with this approach. However, Miss Wu does not argue that ICBC’s investigation was unreasonable and does not claim any remedies against ICBC. I find Miss Wu’s claim is solely about who was at fault for the collision. I find that the proper respondent for this claim is Mr. Lee (see Kristen v. ICBC, 2018 BCPC 106). So, I dismiss Miss Wu’s claims against ICBC.

ISSUES

11.   The issues in this dispute are:

a.    Who was responsible for the collision?

b.    What remedy, if any, is appropriate?

EVIDENCE AND ANALYSIS

12.   In a civil proceeding like this one, the applicant Miss Wu must prove her claims on a balance of probabilities. I have read all the parties’ evidence and submissions but refer only what I find is necessary to provide context for my decision.

13.   The circumstances of the accident are largely undisputed. It happened in a McDonald’s restaurant parking lot on January 18, 2021. There is an entrance to the parking lot from northbound No. 3 Road in Richmond. As vehicles enter the parking lot from No. 3 Road, there are parking stalls on both sides of the aisleway. While there are arrows painted on the road indicating vehicles may travel in both directions (eastbound and westbound), there is no centre line to separate eastbound and westbound lanes.

14.   Mr. Lee was parked in a stall “nose in”, on the left side of the aisle for vehicles entering the parking lot (facing north). Mr. Lee says he reversed out of his stall and came to a stop, before moving to the right to proceed eastbound towards a stop sign at the end of the aisle. He says as he was driving towards the stop sign, Miss Wu passed his vehicle on the right and collided with the passenger side of his vehicle.

15.   Miss Wu says that she entered the parking lot from No. 3 Road and saw Mr. Lee’s vehicle stopped in front of her, blocking the middle of the aisle. She says she thought Mr. Lee was going to park in a stall on her left, so she proceeded around him on the right of his vehicle. Miss Wu says as she was passing Mr. Lee, he suddenly started moving forward and to his right. Miss Wu says she came to a stop when she realized Mr. Lee was moving into her lane of travel, but she says Mr. Lee kept going and the passenger side of his vehicle collided with her front driver’s side bumper.

16.   The parties provided surveillance video footage of the accident. While the parties generally agree about the accident circumstances, I find the video footage provides the best evidence of who is responsible. The video shows that Mr. Lee had already reversed out of his stall when Miss Wu entered the parking lot. Mr. Lee was stopped in the aisle facing northeast as Miss Wu approached from behind his vehicle going eastbound.

17.   While Miss Wu says that Mr. Lee did not start moving forward until she was already passing him, I find the video shows that he started moving forward and to his right when Miss Wu was still behind him. Mr. Lee straightened his vehicle going eastbound in the westbound lane of travel, while Miss Wu was still behind Mr. Lee but moving eastbound in the eastbound lane of travel.

18.   The video footage then shows both vehicles were driving beside each other eastbound towards the stop sign at the end of the aisle. Mr. Lee’s vehicle was still slightly ahead of Miss Wu’s vehicle when he started to move his vehicle to the right, towards the eastbound lane of travel. It appears that Miss Wu accelerated forward at that point, but then came to an abrupt stop just as her front driver’s side wheel passed the front of Mr. Lee’s car. About one second later, the passenger side of Mr. Lee’s vehicle collided with the front driver’s side corner of Miss Wu’s vehicle.

19.   I find the following sections of the Motor Vehicle Act (MVA) are relevant to this accident:

a.    Section 144 says a person must not drive without due care and attention, or without reasonable consideration for other persons using the highway.

b.    Section 158(1) says a driver must not overtake and pass another vehicle on the right except in specified circumstances, such as when the overtaken vehicle is making a left turn or when there is an unobstructed lane on the side of the road on which the driver is permitted to drive.

c.    Section 158(2) says that a driver must not overtake and pass another vehicle on the right if the movement cannot be made safely.

20.   Miss Wu concedes in her reply submissions that she should have let Mr. Lee proceed “in the beginning”. I infer that Miss Wu means that when she entered the parking lot and saw Mr. Lee stopped across the parking lot aisle, she should have come to a stop and allowed Mr. Lee to move forward before proceeding. I agree.

21.   The video shows that Miss Wu entered the parking lot and did not stop or even appear to slow down to determine where Mr. Lee intended to go. It should have been clear to Miss Wu when she was still behind him, that Mr. Lee intended to move into the eastbound lane of travel as he proceeded towards the stop sign. Instead, Miss Wu continued to drive forward and accelerated to pass Mr. Lee on the right.

22.   I find that none of the exceptions in section 158(1) of the MVA applied to permit Miss Wu to pass Mr. Lee on the right. Further, I find Miss Wu did not drive with reasonable consideration for Mr. Lee, and that it was unsafe for her to pass him on the right. As a result, I find Miss Wu’s actions constituted a breach of sections 144 and 158 of the MVA.

23.   As for Mr. Lee’s actions, Miss Wu submits that Mr. Lee was driving in the wrong direction of travel in the aisle, and he suddenly changed lanes without doing a shoulder check. She also says that Mr. Lee accelerated to pass and cut in front of her after she came to a full stop, causing the accident. I do not accept Miss Wu’s position for the following reasons.

24.   First, I find that Mr. Lee safely reversed from his parking stall. Given his vehicle’s position after reversing, I find it was necessary and reasonable for him to proceed forward initially in the westbound lane of travel before he moved into the eastbound lane. I also find that Mr. Lee likely did not see Miss Wu as she entered the parking lot behind him, as he had started to move forward and reasonably would have been looking in the direction he was travelling.

25.   Drivers are only required to guard themselves against outcomes that a reasonable person ought to have foreseen, and they are entitled to proceed on the assumption that other vehicles will observe the rules of traffic (see: Ferguson v. Yang, 2013 BCSC 332 at paragraph 43). I find that Miss Wu’s actions in accelerating to pass Mr. Lee on the right were so unexpected and contrary to the rules of the road that Mr. Lee could not have reasonably anticipated that she would be beside him or that he should do a shoulder check before moving into the eastbound lane.

26.   I also find that Mr. Lee did not accelerate to try and pass Miss Wu. The evidence shows that Mr. Lee told ICBC he did not know where Miss Wu’s vehicle came from. I accept that Mr. Lee did not know Miss Wu was to his right until their vehicles collided. Further, I find that just because Mr. Lee did not see Miss Wu before the collision does not mean he was driving without due care and attention. Again, I find that Mr. Lee was not expected to foresee that Miss Wu would aggressively attempt to pass him on the right in a parking lot.

27.   Finally, Miss Wu argues that she should not be responsible because she came to a complete stop before the collision. However, I find it was Miss Wu’s negligence that resulted in her vehicle being located where Mr. Lee would hit it, whether she stopped when she did or not.

28.   I note that Miss Wu submits that she honked twice before the accident. However, Miss Wu did not say how long before the accident she honked, and her signed March 1, 2021 statement to ICBC did not mention that she had honked at all. Further, Mr. Lee’s signed March 3, 2021 statement to ICBC said Miss Wu honked once or twice after the accident. Bearing in mind that Miss Wu bears the burden of proof, I find there is insufficient evidence to prove that Miss Wu honked before the accident such that Mr. Lee should have been alerted to the impending collision.

29.   Overall, I find Miss Wu has failed to prove that Mr. Lee was negligent and caused the accident. Therefore, I find Miss Wu is entirely responsible for the accident, and I dismiss her 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. Miss Wu was unsuccessful, so I dismiss her claim for CRT fees and dispute-related expenses. The respondents did not claim any dispute-related expenses or pay any CRT fees.

ORDER

31.   I dismiss Miss Wu’s claims, and this dispute.