Date Issued: July 14, 2021

File: SC-2021-000369

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Alden v. Kazemi, 2021 BCCRT 771

Between:

EMILY ALDEN

Applicant

And:

MASOUD REZA KAZEMI, METROLINE CONSTRUCTION LTD., and INSURANCE CORPORATION OF BRITISH COLUMBIA

Respondents

INTRODUCTION

1.      This small claims dispute is about a motor vehicle accident that happened on July 4, 2019 in Vancouver, BC. The applicant, Emily Alden, and the respondent, Masoud Reza Kazemi, were both travelling on a rooftop parking garage when their two vehicles collided.

2.      The respondent, Metroline Construction Ltd. (Metroline), owns the vehicle Mr. Kazemi was driving.

3.      The respondent insurer, Insurance Corporation of British Columbia (ICBC), insures both vehicles. ICBC internally determined that Ms. Alden was 100% at fault for the accident. I am not bound by ICBC’s determination.

4.      Ms. Alden says Mr. Kazmei is 100% at fault for the accident. She says that she approached the parking lot’s exit gate but the gate opening mechanism did not trigger, so she had to reverse slightly to engage the mechanism. At the same time, Ms. Alden says Mr. Kazemi was driving quickly and in the wrong direction, and she says he rear ended her vehicle. Ms. Alden also says that ICBC failed to consider all the evidence and incorrectly determined fault. Ms. Alden claims $2,585.92 for the cost of the repairs to both vehicles.

5.      Mr. Kazemi denies that he was driving quickly or in the wrong direction. He says he was at a complete stop when Ms. Alden reversed into him. ICBC says that it reasonably investigated the accident. The respondents say Ms. Alden’s claims should be dismissed.

6.      Ms. Alden is self-represented. An ICBC employee represents all 3 respondents.

JURISDICTION AND PROCEDURE

7.      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.

8.      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. In some respects, both parties to this dispute call into question the credibility, or truthfulness, of the other. The credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me. I note the decision in Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 28, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I decided to hear this dispute through written submissions.

9.      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.

10.   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.

ISSUES

11.   The issues in this dispute are:

a.    Who is at fault for the accident?

b.    If Mr. Kazemi is fully or partially at fault, what are Ms. Alden’s damages, if any?

c.    Did ICBC reasonably and appropriately investigate the accident?

EVIDENCE AND ANALYSIS

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

Who is at fault?

13.   The facts are largely undisputed. At approximately 3:00 p.m. on July 4, 2019, Ms. Alden was attempting to exit a rooftop parking lot in downtown Vancouver, BC. The rooftop lot is reserved for monthly parking members and there is a gate to enter and exit the parking area. The photographs and aerial views of the parking lot in evidence show that there is angled parking on either side of a single aisle of travel around the rooftop.

14.   Ms. Alden says that she approached the exit gate and drove over the sensor on the road to trigger the opening mechanism, but the gate did not open. So, Ms. Alden says she did a shoulder check and started to move her vehicle in reverse to drive over the sensor again and trigger the mechanism. She says as she was moving backwards, her vehicle collided with the front of a vehicle driven by Mr. Kazemi.

15.   The dispute between the parties is whether Mr. Kazemi was moving or stopped at the time of the collision, and whether Ms. Alden should have anticipated Mr. Kazemi’s location.

16.   Ms. Alden says that Mr. Kazemi was coming from her right and was driving forward in the wrong direction of travel when he rear-ended her vehicle as she was reversing. I infer that Ms. Alden means Mr. Kazemi was driving clockwise around the roof, as she says there were arrows on the road to indicate traffic must travel in a counterclockwise direction. I discuss the alleged arrows further below.

17.   In contrast, Mr. Kazemi says that he was at a complete stop to Ms. Alden’s right, and his vehicle was angled to merge in behind Ms. Alden, so he could also exit the parking lot. He says he was stopped for less than a minute and there was about 15 to 20 feet between their vehicles, when Ms. Alden suddenly and quickly reversed. Mr. Kazemi says he honked his horn for about 3 seconds, but that Ms. Alden did not slow down and collided with his stationary vehicle.

18.   There is no independent or objective evidence of the accident, such as a witness statement or video footage. Therefore, I find it is necessary to evaluate the parties’ credibility to assess whose version is more likely, which involves comparing their evidence to the other available evidence.

19.   The parties provided photographs of the accident scene and vehicle damage, which I find are helpful in evaluating which version of the accident is more likely. The photographs show that Ms. Alden was driving a station wagon type vehicle, and the damage was located on the passenger side corner of her rear bumper. Mr. Kazemi was driving a Smart car and the damage was located on the front driver’s side of the vehicle.

20.   I find the location of the vehicle damage is inconsistent with Ms. Alden’s position that Mr. Kazemi was driving quickly from her right, in a clockwise direction around the roof. Had he been doing so, I find the passenger side of Mr. Kazemi’s front bumper would have been exposed to Ms. Alden’s rear passenger side bumper, as he drove behind her while she reversed.

21.   Further, it is undisputed that Ms. Alden did not see Mr. Kazemi’s vehicle before the collision. So, I find she had no opportunity to assess Mr. Kazemi’s speed, his direction of travel, or whether he was stopped or in motion before the collision.

22.   While the parties moved their respective vehicles apart before taking photographs, it is undisputed that the photographs show the general angle and position of Mr. Kazemi’s vehicle when the accident happened. I find the photographs and the vehicle damage are more consistent with Mr. Kazemi’s version of the accident. On balance, I find that Mr. Kazemi’s stopped vehicle was positioned behind Ms. Alden, to her right, and angled toward the exit gate before the collision.

23.   The obligations of a reversing driver are well established. Section 193 of the Motor Vehicle Act (MVA) says a person must not reverse their vehicle unless it can be done safely. Section 169 of the MVA says a person must not move a vehicle that is stopped unless the movement can be made safely and after giving the appropriate signal.

24.    While section 193 of the MVA does not impose absolute liability on a driver backing up, it does impose a high standard of care because a driver’s visibility is reduced when driving in reverse. The reversing driver must take all reasonable precautions and take the time to look behind them and around them both before and during the time their car is backing up: see Araujo v. Vincent, 2012 BCSC 1836.

25.   While Ms. Alden says that she did a shoulder check before putting her vehicle in reverse, I find she must have looked only to her left. If Ms. Alden had looked to her right either before or during the time she was reversing, I find she would have seen Mr. Kazemi because he was stopped and there to be seen. I find Ms. Alden failed to discharge her duty to take all reasonable precautions in reversing her vehicle.

26.   Ms. Alden also argues that because Mr. Kazemi’s vehicle was positioned to her right, it shows that he failed to comply with yellow traffic direction arrows she says were painted on the rooftop aisle to direct traffic in a counterclockwise direction. Ms. Alden says that if Mr. Kazemi had followed the alleged arrows around the roof, he would have been directly behind her and she would have seen him before reversing her vehicle.

27.   Ms. Alden provided aerial views of the parking lot taken from Google Maps. These views show arrows on the road suggesting traffic should travel in a counterclockwise direction around the rooftop.

28.   Mr. Kazemi does not dispute that he travelled clockwise towards the exit gate. However, the respondents provided an email notice from the parking lot provider, confirming the parking lot was undergoing construction at the time of the accident, including re-paving. The respondents also provided photographs taken one week after the accident, showing there were no painted arrows on the ground to direct traffic in a particular direction. I find these photographs are consistent with the accident scene photos. On balance, I find there were no painted arrows on the road at the time of the accident. So, I decline to find that Mr. Kazemi was negligent for travelling clockwise in the parking lot towards the exit gate.

29.   However, even if there had been arrows on the road and Mr. Kazemi had travelled against the arrows’ direction, I would not have found Mr. Kazemi negligent in the circumstances. As noted, I find that Mr. Kazemi was already at a stop when Ms. Alden started moving backwards. Regardless of how Mr. Kazemi arrived at his stopped position, I find it was Ms. Alden’s obligation to ensure it was safe to reverse before she moved her vehicle. I find that she failed to do so, and she is fully responsible for the accident. I dismiss Ms. Alden’s claims against Mr. Kazemi and Metroline.

30.   Given my finding that Ms. Alden was 100% at fault, I do not have to address her requested remedy. However, I note that even if I had found Mr. Kazemi fully or partially at fault, Ms. Alden provided no evidence about the claimed vehicle repair costs, such as a repair estimate or invoice. For this reason, I would have dismissed Ms. Alden’s claims in any event.

Did ICBC reasonably and appropriately investigate the accident?

31.   As noted, Ms. Alden also takes issue with how ICBC investigated the accident. It is well-established that ICBC must act properly and reasonably in assigning fault (Singh v. McHatten, 2012 BCCA 286, referring to Innes v. Bui, 2010 BCCA 322). As part of this obligation, ICBC must reasonably investigate a claim. In doing so, ICBC is not expected to investigate with the “skill and forensic proficiency of a detective”. Rather, ICBC must bring “reasonable diligence, fairness, an appropriate level of skill, diligence and objectivity” (McDonald v. Insurance Corporation of British Columbia, 2012 BCSC 283). I find that the steps ICBC must take to reasonably investigate an accident depends, in part, on the severity of the accident and the amount at stake.

32.   Ms. Alden says that ICBC failed to consider points she raised in an August 7, 2019 letter with enclosures, and a later August 18, 2019 letter she sent ICBC. While she admits ICBC responded to her letters by email, she says ICBC did not specifically address her points. However, Ms. Alden did not provide copies of her August 7 and August 18 letters, or ICBC’s email response, even though parties are told by CRT staff to provide all relevant evidence during the evidence submission process. Based on the lack of evidence before me, I find it is impossible to assess whether ICBC failed to properly consider Ms. Alden’s position in the letters.

33.   Ms. Alden also submits that ICBC concluded she was entirely responsible for the accident because it accepted that Mr. Kazemi was directly behind her at the time of the accident, which was untrue. I find the evidence does not support Ms. Alden’s submission. ICBC’s notes of Mr. Kazemi’s initial report of the accident stated he reported Ms. Alden was directly in front of him. I find that is not the same as saying he was directly behind Ms. Alden. Given the angle of his vehicle, I find that Ms. Alden likely was directly in front of Mr. Kazemi before the collision.

34.   Further, ICBC’s notes show that on July 10, 2019, Mr. Kazemi reported that he was on the “far right” to get in line to exit the parking lot. In both conversations with ICBC, Mr. Kazemi reported the damage to his vehicle was on the left side of his front bumper. I also find the evidence shows ICBC had the parties’ accident scene photographs before it made its liability determination.

35.   Based on all of the above, I find it is likely Ms. Alden’s real complaint is not with the sufficiency or reasonableness of ICBC’s investigation, but with its conclusion on liability.

36.   In any event, I find there is no evidence before me that ICBC failed to properly consider evidence before it or that there were further investigations it should have done. I find Ms. Alden has not proven that ICBC’s investigation was unreasonable. For these reasons, I dismiss Ms. Alden’s claims against ICBC.

37.   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. Ms. Alden was unsuccessful and so I dismiss her claim for CRT fees. The respondents did not pay any fees or claim any dispute-related expenses.

ORDER

38.   I dismiss Ms. Alden’s claims, and this dispute.