Date Issued: August 29, 2022

File: SC-2021-009610

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Racette-Wilson v. ICBC, 2022 BCCRT 961

Between:

JORDAN RACETTE-WILSON

Applicant

And:

                        INSURANCE CORPORATION OF BRITISH COLUMBIA

Respondent

REASONS FOR DECISION
Tribunal Member:	Eric Regehr

INTRODUCTION

1.      This small claims Civil Resolution Tribunal (CRT) dispute is about a car accident that took place in Nanaimo, British Columbia, on July 15, 2021. The applicant, Jordan Racette-Wilson, was turning right at a T-intersection. Another driver, GPZ, was turning left onto the road Mr. Racette-Wilson was leaving. Mr. Racette-Wilson says that GPZ cut the corner and crossed the center line, colliding with Mr. Racette-Wilson’s vehicle. Mr. Racette-Wilson says that the accident was entirely GPZ’s fault. Mr. Racette-Wilson is self-represented. GPZ is not a party to this dispute.

2.      Mr. Racette-Wilson’s insurer, the Insurance Corporation of British Columbia (ICBC), internally determined that Mr. Racette-Wilson was fully at fault. Mr. Racette-Wilson went through ICBC’s Claims Assessment Review (CAR) process, which reduced his liability to 75%. Neither ICBC’s nor CAR’s liability decisions are binding on me.

3.      Mr. Racette-Wilson initially claimed $500, which is the collision deductible he paid his autobody shop. In his final reply submissions, he agreed to reduce his claim to $375 based on CAR’s decision. He has not repaired his vehicle.

4.      ICBC says that its liability assessment was reasonable and asks me to dismiss Mr. Racette-Wilson’s claim. ICBC also says that Mr. Racette-Wilson is not entitled to reimbursement of his deductible because his vehicle is still not repaired. ICBC is represented by an employee.

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. In some respects, both parties of this dispute call into question the credibility, or truthfulness, of the other. 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 Yas v. Pope, 2018 BCSC 282, 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.

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 pay money or to do or stop doing something. The CRT’s order may include any terms or conditions the CRT considers appropriate.

ISSUES

9.      The issues in this dispute are:

a.    Who was responsible for the accident?

b.    If GPZ was fully or partially responsible, what are Mr. Racette-Wilson’s damages?

EVIDENCE AND ANALYSIS

10.   In a civil claim such as this, Mr. Racette-Wilson as the applicant must prove his claims on a balance of probabilities, which means “more likely than not”. This means that he must prove that GPZ was negligent. ICBC must prove its allegation that Mr. Racette-Wilson was negligent to the same standard. While I have read all the parties’ evidence and submissions, I only refer to what is necessary to explain my decision.

11.   I note at the outset that ICBC’s submissions refer to whether its liability decision was reasonable. While not binding on me, I agree with previous CRT decisions that concluded that the new version of the Insurance (Vehicle) Act, which came into effect on May 1, 2021, creates a contractual obligation on ICBC to assign fault correctly. See, for example, Crisp v. ICBC, 2022 BCCRT 767, at paragraphs 10 and 11. Mr. Racette-Wilson does not make any claims about the reasonableness of ICBC’s investigation. He only disagrees with ICBC’s conclusion. I find that the only issue before me is who was at fault for the accident, regardless of whether ICBC’s investigation was reasonable.

12.   The following facts are undisputed. The accident occurred around 8:30pm on July 15, 2021, at the intersection of Holyrood Drive and Highland Boulevard in Nanaimo. Because the configuration of the intersection is important, I will describe it in some detail. Holyrood Drive runs northeast-southwest and terminates on its southwest end at a T-intersection with Highland Boulevard, which runs northwest-southeast. There is a stop sign for traffic on Holyrood Drive, but no stop signs on Highland Boulevard. Based on the Google map screenshot in evidence (which includes a scale), the stop line is about 5 meters back from Highland Boulevard’s northwest-bound lane. Highland Boulevard has a single lane in each direction separated by a single solid line, with a break in the line where Highland Boulevard crosses Holyrood Drive. Highland Boulevard has a white fog line along its northwest-bound lane. There is a break in the fog line where Highland Boulevard crosses Holyrood Drive.

13.   Mr. Racette-Wilson was driving southwest on Holyrood Drive. He intended to turn right (northwest) onto Highland Boulevard. GPZ was driving southeast on Highland Boulevard. GPZ intended to turn left (southeast) onto Holyrood Drive. The vehicles collided as they were both making their turns. Mr. Racette-Wilson’s vehicle was damaged on the front left side. GPZ’s vehicle was damaged along the driver’s side front and rear doors. Again, none of this is disputed.

14.   Before turning to Mr. Racette-Wilson’s evidence, I note here that ICBC did not provide a copy of GPZ’s statement to ICBC. In fact, the only evidence of GPZ’s account of the accident is the CAR arbitrator’s summary of GPZ’s statement to ICBC. ICBC (a frequent CRT participant) did not explain why it did not provide this obviously relevant evidence, despite the obligation under the CRT’s rules to submit all relevant evidence.

15.   Under section 42 of the CRTA, the CRT may admit and consider hearsay evidence, but I find that it would be inappropriate to rely on the CAR arbitrator’s summary of GPZ’s statement. I say this because it is unclear whether Mr. Racette-Wilson has had an opportunity to review and comment on GPZ’s full statement, rather than just the CAR summary. ICBC also does not rely on the CAR arbitrator’s summary of GPZ’s statement or make any submissions defending GPZ’s conduct. So, I have disregarded the CRT arbitrator’s summary of GPZ’s statement. I find that Mr. Racette-Wilson’s account of the accident is essentially uncontroverted.

16.   Mr. Racette-Wilson gives the following account of the accident. He stopped at the stop line on Holyrood Drive and signaled right. Before moving forward, he looked right and saw GPZ about 30 yards away. He did not pay much attention to GPZ because GPZ was in the opposite lane and had not signaled a left turn. Bushes and trees along Highland Boulevard blocked Mr. Racette-Wilson’s view of oncoming traffic, so he began to inch forward. As he inched forward, his attention was to his left to check for oncoming traffic. After he determined it was safe to complete his turn, he looked back to the right and saw GPZ heading towards the front of his vehicle. He expected GPZ to widen their turn but instead GPZ collided with his vehicle.

17.   Mr. Racette-Wilson provided dashcam footage of the accident. It is only 5 seconds long and only captures about 1 second before the impact. Mr. Racette-Wilson says that he tried to recover more footage but his dashcam saved only a small clip. ICBC does not dispute this, so I accept that Mr. Racette-Wilson is telling the truth about the limits of his dashcam. I find that the dashcam footage shows the following. When the footage begins, GPZ was just beginning their left turn. Mr. Racette-Wilson was pointed roughly straight from Holyrood Drive but had started turning right. GPZ crossed the yellow line about a car length before the break in the yellow line. Because GPZ started their turn so far back from Holyrood Drive, they turned at a shallow angle and crossed in front of Mr. Racette-Wilson until they collided. Both vehicles were moving up to the point of impact, although Mr. Racette-Wilson’s forward movement was slow.

18.   Mr. Racette-Wilson also provided 3 photos from after the accident. He says he did not move his vehicle after the impact, which I accept because his vehicle’s position is consistent with the dashcam footage. The angles of the photos make it impossible to tell exactly where Mr. Racette-Wilson’s vehicle stopped in the intersection. Comparing the photos to the Google map, I find that Mr. Racette-Wilson’s vehicle was about 1 to 2 meters past the stop line, and well back of Highland Boulevard’s center line. I find that its front left corner had just entered Highland Boulevard’s northwest-bound lane. Based on the angle of his vehicle, I find that Mr. Racette-Wilson was just under halfway through his right turn.

Was GPZ negligent?

19.   It is well-established that all drivers owe a duty to other road users to exercise reasonable care as they drive. In considering whether a driver meets this standard, the CRT (like the court) will examine the reasonableness of the driver’s actions with reference to the rules of the road in the Motor Vehicle Act (MVA). In other words, the MVA provides a “guideline” for assessing fault, but it is not a complete code of how drivers must act. See Salaam v. Abramovic, 2010 BCCA 212, at paragraphs 18 to 21.

20.   Despite saying that its initial fault assessment was reasonable, ICBC concedes that GPZ made an “improper left turn”. I agree. I find that GPZ breached section 155(1)(c), which requires drivers to stay on the right side of a solid center line unless they are passing. I find that GPZ started their turn well before the break in the yellow line on Highland Boulevard. I find that by cutting the corner, GPZ’s driving fell below a reasonable standard. Given Mr. Racette-Wilson’s position when the vehicles collided, I find that the accident would not have occurred if GPZ had waited for the break in the yellow line before starting their left turn.

21.   The court reached the same conclusion in Donato v. Quach, 2019 BCSC 2020, a decision that Mr. Racette-Wilson describes as “almost identical” to this dispute. I agree that the facts in Donato are very similar to the facts here, with the plaintiff turning right at a T-intersection and colliding with the defendant as she turned left off the main road. The court found that the defendant was fully responsible for that accident because she cut the corner. I find that GPZ’s conduct was essentially the same as the defendant in Donato. I find that GPZ was negligent.

Was Mr. Racette-Wilson negligent?

22.   ICBC argues that Mr. Racette-Wilson breached 4 provisions of the MVA: section 165(1), which requires drivers to make right turns as close to the right hand curb or edge of the roadway as practicable, section 169, which prohibits drivers from moving a stopped vehicle unless it is reasonably safe to do so, section 175(1), which requires drivers entering a highway from a stop sign to yield the right of way to traffic on the highway, and section 186, which requires drivers to stop at a stop line.

23.   I will start with section 175(1) of the MVA. ICBC argues that this section gave GPZ the right of way and that Mr. Racette-Wilson therefore had to yield. The defendant in in Donato made similar arguments, which the court implicitly rejected. The court did not refer section 175 or analyze who had the right of way in making its decision. I agree with that approach. As a matter of common sense, I find that the rules about who has the right of way govern situations where 2 vehicles’ paths of travel will cross. Here, Mr. Racette-Wilson and GPZ’s paths of travel never should have crossed. In other words, there was no right of way for Mr. Racette-Wilson to yield.

24.   ICBC also argues that Mr. Racette-Wilson did not stop at the stop line and started moving when it was not safe, contrary to sections 186 and 169 of the MVA, respectively. As mentioned above, his dashcam footage does not go back far enough to conclusively prove what he did at the stop line. However, ICBC bears the burden of proving that Mr. Racette-Wilson was contributorily negligent. I find that there is no evidence to suggest that Mr. Racette-Wilson failed to stop at the stop line or that GPZ was a hazard when he started inching forward.

25.   Turning to section 165(1) of the MVA, Mr. Racette-Wilson does not deny that his right turn did not tightly track the road’s right edge. However, Mr. Racette-Wilson says that he was turning as sharply as he could without ending up on Highland Boulevard’s shoulder.

26.   As mentioned above, section 165(1) of the MVA says that a driver must be as close as practicable to the right edge of the “roadway”. Section 119 of the MVA defines the “roadway” as the “portion of the highway that is improved, designed or ordinarily used for vehicular traffic, but does not include the shoulder”. Contrary to ICBC’s submission, I find that the definition of “roadway” means that it makes no difference that the area to the right of the fog line was not a designated bike lane. Either way, vehicles are not supposed to drive there.

27.   This means that section 165(1) of the MVA required Mr. Racette-Wilson to follow a path that would avoid Highland Boulevard’s shoulder. Based on the Google map, I find that if Mr. Racette-Wilson tightly followed the road’s edge around the corner, he would complete his turn on Highland Boulevard’s shoulder. In other words, section 165(1) of the MVA required Mr. Racette-Wilson’s turn to be some distance from the road’s edge.

28.   Based on the vehicle’s position and angle, I find that Mr. Racette-Wilson likely stopped at the stop line at the center of his lane, and only began his turn after he proceeded from the stop line. I find that this was a reasonable decision because it gave Mr. Racette-Wilson a better view of traffic coming from the left, which was the most likely source of a hazard. The post-accident photos show that Mr. Racette-Wilson’s wheels were turned fully to the right (or close to it) so it does not appear that he could have taken the corner more sharply. In short, I am not satisfied that Mr. Racette-Wilson took such a wide right turn that he breached section 165(1) of the MVA. In any event, I find that his path of travel was overall reasonable given the configuration of the intersection and the obstructed view to his left.

29.   Finally, ICBC argues that Mr. Racette-Wilson should have seen GPZ approaching before the collision. ICBC does not say so explicitly, but I infer that it believes that Mr. Racette-Wilson should have stopped before the collision. For his part, Mr. Racette-Wilson says that his attention was to the left until just before the accident because he wanted to make sure that there was no traffic in the lane he was turning into.

30.   I find that it was reasonable for Mr. Racette-Wilson’s attention to be mostly focused to the left. I find that this is especially true given Mr. Racette-Wilson’s uncontested evidence that GPZ had not signaled left when Mr. Racette-Wilson saw GPZ before starting his turn. It is well-established that drivers are entitled to assume, within reason, that other drivers will obey the rules of the road: Mills v. Seifred, 2010 BCCA 404, at paragraph 26. I find that Mr. Racette-Wilson reasonably assumed that GPZ would not cut the corner if they turned left.

31.   In conclusion, I am not satisfied that Mr. Racette-Wilson failed to take reasonable care to avoid an accident. I find that he was not contributorily negligent. It follows that GPZ is entirely at fault for the accident.

What are Mr. Racette-Wilson’s damages?

32.   Mr. Racette-Wilson’s damages claim is unusual. He undisputedly has paid an autobody shop $500 to cover his deductible but has not had his vehicle repaired. He says that he has since spoken to the autobody shop, who confirmed that the deductible will actually only be $375 because of the CAR decision. So, Mr. Racette-Wilson has reduced his claim to $375. Presumably, the autobody shop agreed to refund Mr. Racette-Wilson’s $125, subject to the outcome of this dispute.

33.   ICBC says that it is highly unusual for a person to pay a deductible without having the vehicle repaired. I agree. ICBC points out that Mr. Racette-Wilson could opt not to complete the repairs. I agree that this is possible because the vehicle is drivable. I infer that ICBC is concerned that Mr. Racette-Wilson would then receive a windfall by asking for a full refund of his deductible from the autobody shop, although ICBC does not say so explicitly.

34.   I find that I do not need to address whether Mr. Racette-Wilson is intentionally seeking a windfall. I find that section 174(3) of the IVA only requires ICBC to indemnify him for the cost of repairs. There have been no repairs, so there is nothing for ICBC to cover. For that reason, I find that Mr. Racette-Wilson has not suffered a compensable loss because he had no legal obligation to pay the deductible in advance. On that basis, I dismiss his damages claim. However, I note that ICBC confirmed in its submissions that it will follow my liability assessment even if I award no damages. I cannot make an order requiring ICBC to do so, because that would be an injunctive order that is beyond the CRT’s jurisdiction. However, I find that Mr. Racette-Wilson will be made whole even though I am dismissing his claim.

35.   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. Even though I dismissed his claim, I find that Mr. Racette-Wilson is the successful party and is entitled to reimbursement of his $125 in CRT fees. He did not claim any dispute-related expenses.

ORDERS

36.   Within 30 days of the date of this order, I order ICBC to pay Mr. Racette-Wilson $125 in CRT fees.

37.  Mr. Racette-Wilson is entitled to post-judgment interest, as applicable.

38.  Under section 58.1 of the CRTA, a validated copy of the CRT’s order can be enforced through the Provincial Court of British Columbia. Once filed, a CRT order has the same force and effect as an order of the Provincial Court of British Columbia.