Date Issued: November 8, 2021

File: SC-2021-004185

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Rai v. Friesen, 2021 BCCRT 1179

Between:

GURDIAL RAI

Applicant

And:

ERIC DIETRICH FRIESEN and INSURANCE CORPORATION OF BRITISH COLUMBIA

Respondents

INTRODUCTION

1.      This small claims dispute is about a motor vehicle accident that occurred on February 2, 2021 in Delta, British Columbia. The applicant, Gurdial Rai, and the respondent, Eric Dietrich Friesen, were both driving westbound on the Highway 91 Connector when their two vehicles collided. Mr. Rai says Mr. Friesen changed lanes in front of him without ensuring there was enough room, and the rear of Mr. Friesen’s vehicle hit the front side and bumper of the truck Mr. Rai was driving. Mr. Rai says that Mr. Friesen is fully liable for the accident. He claims $1,000 for the deductible he was required to pay to have his truck repaired.

2.      The respondent insurer, Insurance Corporation of British Columbia (ICBC), insures the parties’ vehicles. ICBC says Mr. Rai’s employer owns the vehicle he was driving, so Mr. Rai cannot claim damages for the vehicle repair costs. ICBC also says it refunded Mr. Rai’s employer for half the $1,000 paid deductible. I infer this is because ICBC found each driver 50% liable. Finally, ICBC says it is not a proper party to this dispute.

3.      Mr. Friesen says Mr. Rai was the one who was changing lanes and hit his vehicle. While Mr. Friesen denies that he was responsible for the accident, he says because both drivers allege the other changed lanes, finding each driver 50% liable is a fair assessment.

4.      Mr. Rai submits that his employer required him to pay the $1,000 deductible to have the truck repaired. He says he was unaware that his employer received a $500 refund for half the deductible. Mr. Rai’s employer is not a party to this dispute.

5.      Mr. Rai is self-represented. An ICBC employee represents the respondents.

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. 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.

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.

ISSUES

10.   The issues in this dispute are:

a.    Is ICBC a properly named party to this dispute?

b.    Who was responsible for the accident?

c.    If Mr. Friesen was fully or partially responsible, what are Mr. Rai’s damages?

EVIDENCE AND ANALYSIS

11.   In a civil proceeding like this one, Mr. Rai as the applicant must prove his claims on a balance of probabilities. I have read all the parties’ evidence and submissions, but I refer only to what I find necessary to provide context for my decision.

ICBC as a party

12.   As noted, ICBC says it is not a proper party to this dispute. The CRT has consistently found that an insured may claim against ICBC if they believe ICBC did not meet its statutory duty or contractual obligations to reasonably investigate an accident. I agree with this approach. As noted, Mr. Rai was not the registered owner of the vehicle he was driving, and, therefore, ICBC had no contractual duty to Mr. Rai.

13.   However, even if ICBC had a statutory obligation to Mr. Rai to properly investigate the accident and assess fault, Mr. Rai does not argue that ICBC is liable because of any statutory breach. Mr. Rai says only that he disagrees with ICBC’s liability determination. I find Mr. Rai’s claim is solely about who was at fault for the collision. Therefore, I find that the only proper respondent for the claim is Mr. Friesen (see Kristen v. ICBC, 2018 BCPC 106). For these reasons, I dismiss Mr. Rai’s claims against ICBC.

Who is responsible for the accident?

14.   The accident occurred at about 2:30pm on February 2, 2021, on the Highway 91 Connector between Nordel Way and Highway 17. Mr. Rai and Mr. Friesen were both travelling westbound, approaching Highway 17. This area of the Highway 91 Connector was a construction zone at the time of the accident. There were 2 dedicated left turn lanes at the intersection of the Highway 91 Connector and Highway 17. Though the evidence is unclear, it appears there were also at least 2 lanes that went straight through the intersection, and at least one dedicated right turn lane.

15.   Mr. Rai says he was driving in the right-most straight through lane as he approached Highway 17. He says Mr. Friesen was driving in the lane to his right, which he describes as an “exit lane” to eastbound Highway 17. Mr. Rai says Mr. Friesen seemed to realize he was in the wrong lane and suddenly merged left into his lane without shoulder-checking to ensure there was enough room to complete his lane change. Mr. Rai says the back of Mr. Friesen’s pickup truck hit the front right wheel and bumper of his truck, which was towing a semi-trailer. It is undisputed that the collision tore Mr. Rai’s front bumper off his truck.

16.   In contrast, Mr. Friesen says both he and Mr. Rai were in the 2 left turn lanes, with Mr. Rai in the far-left turn lane and Mr. Friesen beside him in the lane to Mr. Rai’s right. Mr. Friesen says Mr. Rai decided not to turn left and wanted to go straight through the intersection, so he moved to his right and clipped the left rear of Mr. Friesen’s truck while doing so.

17.   Mr. Rai says Mr. Friesen’s version is not credible. He says if he had been moving to the right, the momentum of his truck and semi-trailer, when colliding with the rear of Mr. Friesen’s truck, would have caused Mr. Friesen’s truck to spin to the left and sustain more serious damage. I find expert evidence is required to prove accident reconstruction based on force and vehicle damage because I find it is outside the knowledge of an ordinary person (see Bergen v. Guliker, 2015 BCCA 283).

18.   However, the only evidence Mr. Rai submitted in this dispute was 5 photographs of his truck’s damage. I find Mr. Rai has provided insufficient evidence to prove, based on vehicle damage, that Mr. Friesen changed lanes into his lane when the accident occurred.

19.   Mr. Rai also alleges that Mr. Friesen tried to flee the scene after the accident, but that he was able to catch up to Mr. Friesen at a red light and park in front of him to force him to stop. Mr. Friesen denies this. He says they were going to cause a traffic backup, so he moved ahead to 96 Street so they could exchange information.

20.   Mr. Rai did not say how far he pursued Mr. Friesen before he was able to catch up to him. Regardless, I find it somewhat improbable that Mr. Rai was able to chase down Mr. Friesen while driving a truck towing a semi-trailer, with the front bumper torn off, and get in front of him at a red light. On balance, I find Mr. Rai has not proven that Mr. Friesen attempted to “flee” after the accident.

21.   Finally, Mr. Rai says that when they were exchanging information, Mr. Friesen admitted fault and that Mr. Rai smelled alcohol on Mr. Friesen’s breath. Mr. Rai says he then called the police, at which point Mr. Friesen left. Mr. Friesen says he left because he had already provided his information to Mr. Rai, there was very little damage to his truck, no injuries, and he needed to get to a dentist appointment. I note that Mr. Friesen provided a June 1, 2021 letter from his dentist confirming that he attended a 3:00pm appointment on February 2, 2021.

22.   Mr. Rai submits that he has a copy of the police report he filed, but he did not provide it. ICBC’s file notes show the police went to Mr. Friesen’s home, but he was not there, so they could not confirm whether Mr. Friesen was impaired by alcohol. On balance, I find Mr. Rai has not proven that Mr. Friesen was impaired at the time of the accident.

23.   As for Mr. Friesen’s alleged admission of fault, I find this allegation is also unproven. It is undisputed that there was a witness to Mr. Rai’s and Mr. Friesen’s interaction, GB, who is Mr. Rai’s co-worker and was driving nearby at the time of the accident. However, Mr. Rai did not provide a statement from GB. While GB was apparently driving in front of the parties and did not witness the collision itself, I find he may have been able to provide information about what lanes the parties were traveling in, where they stopped to exchange information, and whether Mr. Friesen admitted fault for the accident. Even though GB is not entirely independent because he knows Mr. Rai, he may have been able to provide some evidence in support of Mr. Rai’s claims.

24.   The courts have said that an adverse inference can be drawn against a party where, without sufficient explanation, they fail to produce evidence or call a witness expected to provide supporting evidence (see Port Coquitlam Building Supplies Ltd. v. 494743 B.C. Ltd., 2018 BCSC 2146). I find it is appropriate to draw an adverse inference against Mr. Rai for his failure to provide a witness statement from GB. Based on this adverse inference, I find Mr. Friesen did not admit fault for the accident.

25.   Based on the limited evidence before me, I find I am left with an evidentiary tie, with each party alleging the other changed lanes into them and no other evidence to tip the balance in favour of one parties’ version over the other. Mr. Rai bears the burden of proving Mr. Friesen was negligent and at fault for the accident. I find he has failed to meet that burden. So, I find Mr. Rai has not shown he is entitled to a different assessment of fault, and I dismiss his claims.

26.   Given my finding on liability, I find it is unnecessary to address Mr. Rai’s claimed damages.

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. Mr. Rai was unsuccessful and so I dismiss his claim for CRT fees. The respondents did not pay any fees or claim any dispute-related expenses, so I make no order.

ORDER

28.   I dismiss Mr. Rai’s claims and this dispute.