Fraser v. Konnert Date:, 2012 BCPC 24

Citation: Fraser v. Konnert Date: 20120201 2012 BCPC 0024 File No: 24165 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: SCOT R. FRASER CLAIMANT AND: JONATHON KONNERT DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP DONALD YULE Appearing on their own behalf: Scot Fraser Counsel for the Defendant: Craig T. McIvor Place of Hearing: Richmond , B.C.

Date of Hearing: January 13, 2012 Date of Judgment: February 1, 2012 INTRODUCTION [ 1 ] The issue for determination in this action is liability for a motor vehicle accident that occurred on June 23, 2011 at approximately 8:30 am on the Steveston Highway in Richmond in the vicinity of the exit from Steveston Highway to Highway 99. The collision occurred when two eastbound vehicles were attempting to merge. FACTS NOT IN DISPUTE [ 2 ] The layout of the relevant part of the Steveston Highway is depicted in the aerial photograph annexed to the Claimant’s Trial Statement.

At the intersection of No. 5 Road and Steveston Highway, there are a total of three eastbound lanes. For convenience I shall identify the lanes as Lane 1 (nearest the curb), Lane 2 (the middle lane) and Lane Number 3 (the lane nearest the center line). Lane 3 is

for through traffic, that is traffic proceeding east on Steveston Highway past the exit to Highway 99. For the majority of the stretch of the Steveston Highway between No. 5 Road and the Highway 99 exit, there is a painted, dotted, line on the road surface dividing Lanes 1 and 2. As one approaches the Highway 99 exit, the dotted white line ends and there is a traffic control device (a sign affixed to a pole in the sidewalk) indicating that the right lane (Lane 1) ends.

Also as one approaches the Highway 99 exit, the Steveston Highway eastbound widens to permit the creation of a fourth lane which was described as a bus lane. This appears to permit buses to go past (or east) of the Highway 99 exit into a mandatory right-hand turn lane which presumably permits bus traffic quicker access to Highway 99. [ 3 ] The Claimant entered the Steveston Highway from No. 5 Road. He intended to take the Highway 99 exit. Almost immediately, he came up behind the Defendant’s vehicle.

The parties agree that the Defendant’s vehicle, and the vehicle in front of the Defendant were both straddling the dotted line between Lanes 1 and 2. The Defendant admits that he was doing so deliberately, so that cars could not pass by him in Lane 1 and then merge closer to the Highway 99 exit some distance ahead. The parties also agree that Lane 1 was empty for a considerable distance ahead of the two vehicles that were straddling Lanes 1 and 2. The parties also agree that the Plaintiff tried unsuccessfully to get past the Defendant’s vehicle on its right (i.e. in Lane 1).

The parties also agree that subsequently the Plaintiff came up beside the Defendant’s vehicle on its left and the Claimant acknowledges that he rolled down his passenger side window and yelled at the Defendant including using some profanity. [ 4 ] The Parties agree that the actual collision occurred very close (within approximately a couple of car lengths) to the position of the Defendant’s stopped vehicle depicted in the photograph annexed to the Claimant’s Trial Statement.

The parties agree that the photograph shows the position of the Defendant’s vehicle after the accident and after the parties had pulled over and stopped to exchange particulars. The collision occurred therefore at a location on Steveston Highway where there were not marked dotted lines on the road surface, the road was wide enough to accommodate two cars side by side and the road for traffic taking the Highway 99 exit had begun to angle to the south.

FACTS IN DISPUTE [ 5 ] The Claimant says that when he initially came up behind the Defendant’s vehicle which was straddling Lanes 1 and 2, there was room for him to get by on the right side but as he attempted to do so, the Defendant drove his vehicle to the right, blocking the Claimant’s path and forcing his vehicle to drive up against the curb. The Claimant denies getting out of his vehicle at this time. The Claimant then was allowed by another driver back into the line of traffic and he drove up on the left side of the Defendant’s vehicle.

As noted previously, the Claimant shouted abuse at the Defendant, and the Claimant agrees that he was angry and upset at the Defendant’s driving behaviour. The two vehicles moved slowly forward, side by side. As they approached the merge point, the Claimant’s vehicle was in Lane 2 and the Defendant’s vehicle was in Lane 1. Vehicles were merging alternately from the two lines of traffic. The Claimant motioned to the Defendant that the Claimant was going to go ahead and merge in front of the Defendant in accordance with this pattern. The Defendant did not respond or indicate otherwise.

The Claimant’s vehicle was partially in front of the Defendant’s vehicle and had started to merge. The traffic ahead came to a stop and the Claimant stopped. Almost immediately he heard the sound of an impact. The Claimant asserts that the Defendant deliberately drove into the Claimant’s vehicle. The damage to the Claimant’s vehicle is to the right side rear door and quarter panel. The damage to the Defendant’s vehicle is to the side of the front bumper and the right front tire. The Claimant got out of his vehicle and immediately accused the Defendant of driving into him, asking why he had done that.

The Defendant did not respond. [ 6 ] The Defendant admits that he was initially straddling Lanes 1 and 2 so as to prevent other motorists from passing by on the right and merging up ahead, thus obviously making it longer before the Defendant would be able to get onto the Highway 99 exit. The Defendant denies that moved his vehicle to the right in order to block the Claimant’s path initially. The Defendant says there simply was not room for the Claimant to get by.

The Defendant adds that when the Claimant was initially unable to get by, the Claimant stopped his vehicle, got out of it, and started shouting at the Defendant. The Defendant subsequently observed the Claimant, now to the Defendant’s left, as the two vehicles drove side by side. The Defendant admits asking the Claimant where did the Claimant think he was going, with respect to the Claimant’s attempt previously to pass by on the right side. Significantly, the Defendant says that after the initial attempt of the Claimant to pass on the right, the Defendant returned fully to Lane 2.

This would put the Claimant at the time of the collision north of the solid line for traffic taking the Highway 99 exit, and in part of the triangle from which the bus lane emerges. The Defendant admits that he saw the Claimant gesturing, indicating that the Claimant intended to merge in front of the Defendant. There was a distance of 5ft to 6ft maximum between the Defendant’s vehicle and the car immediately in front of the Defendant. The Defendant did not intend to allow the Claimant to merge in front of him.

The Defendant asserts that his vehicle was stopped and the Claimant’s vehicle moved forward, striking the Defendant’s vehicle. When accused at the roadside of having deliberately struck the Claimant’s vehicle, the Defendant did not respond because he did not want to precipitate an altercation with the Claimant. STATEMENTS TO INSURANCE CORPORATION OF BRITISH COLUMBIA [ 7 ] Both parties provided statements to the Insurance Corporation of British Columbia (“ICBC”).

The Claimant’s statement is consistent with his evidence at the hearing that when the accident occurred, the Claimant was in Lane 2 and the Defendant was in Lane 1. The statement to ICBC says in part: “ Then he (the Defendant) had moved from Lane 2 to Lane 1 and I had moved from Lane 1 to 2. I did this so that I could yell at him and say what do you think you are doing. He was driving like he owned both lanes and he was not letting people through .” [ 8 ] In the Defendant’s statement to ICBC, he says that he was initially in the left of two lanes (Lane 2) but that he then straddled Lanes 1 and 2.

While the statement recounts the Claimant’s attempt to pass on the right and then to come around on the Defendant’s left, it does not subsequently indicate what lane of travel either vehicle was in at the time of the impact. I note however that in the Defendant’s initial telephone report of the accident on July 4, 2011, the description recorded in

part is as follows: “ Two lanes merge into one, INS already established in the single lane when TP behind attempted to pass on lft shlder and get in frnt .”

[ 9 ] I take the reference to “left shoulder” as meaning the triangle area out of which the bus lane emerges just at the entrance to the Highway 99 exit. Thus the Defendant’s suggestion that at the time of the accident the Defendant was in Lane 2 and the Claimant was to the left was not first made during the hearing and does not expressly contradict anything in the Defendant’s ICBC statement. [ 10 ] I note one unusual circumstance. After the Defendant had been served with the Notice of Claim in this action seeking $430.00, he sent a cheque in that amount to the Claimant with the note “for withdrawal of claim”.

Before the cheque was cashed however the Defendant was advised by his ICBC examiner that he should stop payment on the cheque as the examiner did not think the Defendant was at fault. The Defendant did stop payment on the cheque. The information that the Defendant was paying the claim apparently came to the Defendant’s examiner from someone else at ICBC. The Claimant expressed frustration during the hearing at this turn of events but I indicated that this action was not the appropriate forum for any grievance that he might have.

Parties are, of course, entitled to resolve disputes directly between themselves without involving their respective insurers. Although the Claimant had his collision coverage with an insurer other than ICBC, he did not process any collision claim and in fact has not repaired the minor damage to his vehicle. To conclude this issue, the Defendant said that he attempted to pay the claim because he had recently moved to a new residence and wanted to avoid the inconvenience of court proceedings. DISCUSSION AND ANALYSIS [ 11 ] The Claimant asserts that the accident was caused solely by the fault of the Defendant.

The Claimant relies on several points. The first point is that the Defendant deliberately drove into the Claimant’s stopped vehicle. The second point is that the traffic control sign indicating that the right lane (Lane 1) ended, meant that the Claimant in Lane 2 had the right of way, and the Defendant in Lane 1 could only merge when it was safe to do so. The third point is that s.151 of the Motor Vehicle Act provides that a driver, driving a vehicle on a laned roadway must not drive from one lane to another when a broken line only exists unless the movement can be made safely.

The fourth point is that the Defendant’s assertion that the Claimant was somewhere in the “triangle area”, or in the through eastbound lane of Steveston Highway is a recent creation, inconsistent with his prior statement.

The fifth point is that the Claimant was merging in accordance with the “courtesy” rule of alternating vehicles. [ 12 ] In his filed material, the Claimant also referred to s. 251 of the Motor Vehicle Act which creates an offence of operating a motor vehicle on a highway in a “stunt” where a “stunt” is defined to mean inter alia driving in a manner likely to interfere with users of the highway by slowing or stopping the vehicle in a manner that prevents other vehicles from passing or in a manner that blocks or impedes other motor vehicles. [ 13 ] The Defendant says that there is no specific provision in the Motor Vehicle Act addressing the question of which vehicle has the right of way in these particular circumstances.

Alternatively, reference is made to s.157 of the Motor Vehicle Act which provides that the driver of an overtaking vehicle must pass to the left and not return to the right side of the highway until safely clear of the overtaken vehicle. Finally, the Defendant asserts that he was stopped in Lane 2 and any collision was the fault of the Claimant. [ 14 ] I do not consider that the “right lane ends” traffic control sign is a significant factor in establishing the merge procedure. Division 23 of the Regulations under the Motor Vehicle Act defines traffic control devices as being of two types.

There are “regulatory” signs in which action is required and disregard is an offence. There are also “warning” signs which advise of a condition ahead that is potentially hazardous to cars or pedestrians. Warning signs have a black message against a yellow background on a diamond shaped sign. The right lane ends sign in this case is a warning sign. In my view it simply advises motorists of a condition ahead but does not, for example, require vehicles in the lane that is ending to yield the right of way to vehicles in the lane that is continuing.

Where vehicles are required to yield, on merging, there are regulatory “yield” signs prescribed by regulation. [ 15 ] I also do not think s. 251 of the Motor Vehicle Act is applicable.

Section 251 and the accompanying definition section, s. 250, must be read together as a whole. The offence is driving on a highway in a race or in a stunt and permits impoundment of the vehicle.

I do not think that operating a vehicle in a manner that impedes another vehicle by itself is sufficient to meet the definition of stunt driving. [ 16 ] I do not think that s.151 of the Motor Vehicle Act applies to this case because, at the place where the accident actually occurred, there was no broken line between two lanes; thus where this accident happened, the roadway was not laned; rather, arguably, there was a single lane wide enough to accommodate two vehicles but narrowing. [ 17 ] I also do not think that s.157 applies to this circumstance.

Section 157 contemplates a vehicle crossing the center line in order to pass a slower vehicle. That would not apply to a merger of two lanes nor to a vehicle moving into the triangle area out of which the bus lane emerges. [ 18 ] I find however that at the time of the accident, the Defendant was in Lane 2 and the Claimant was to its left in either the triangle area or partly in the through lane area. As noted, the Defendant’s initial report to ICBC indicates he was established in the single lane and the Claimant attempted to pass on the left shoulder.

Both parties agree that there was a long line of cars in Lane 2. I conclude that that is the single lane to which the Defendant was referring. While his subsequent, more detailed statement does not make reference to the Claimant being in the triangle area or through lane, neither does it identify with particularity exactly where either vehicle was at the time of the accident. The whole reason why the Defendant admitted that he was initially straddling Lanes 1 and 2 was because he thought it was wrong for vehicles to go down Lane 1 in order to merge farther ahead.

The Claimant’s evidence would require the conclusion that this is just what the Defendant did after the initial incident. I accept the Defendant’s evidence that after the initial incident, the Defendant returned wholly to Lane 2. This means that, as the vehicles drove side by side, the Claimant was in a position where he should not have been.

Given the Claimant’s behavior and attitude, it is quite conceivable that he might have driven towards the Highway 99 exit in or partly in, or partly in the through eastbound lane on Steveston Highway and then attempted to merge from that position at the entrance to the Highway 99 exit. [ 19 ] While I accept the Defendant’s evidence regarding the location of the accident, I do not accept the Defendant’s evidence that the Claimant drove into the Defendant’s stopped vehicle. I do not accept the Defendant’s evidence for two reasons.

First, he did not deny the allegation at the scene that he had run into the Claimant’s vehicle when I would have expected him to do so if it were not the case.

Second, neither his initial telephone report nor his statement to ICBC asserts that he was actually stopped at impact. In his ICBC statement, the Defendant says that “he (the Plaintiff) just came closer and closer into my path. This all happened at (sic) in slow motion”. I find that both vehicles continued to edge forward until finally they made contact. The Claimant’s vehicle was clearly ahead of the Defendant’s, given the location on the vehicles of the damage. The Defendant could see the Claimant’s vehicle edging in. I do not conclude that the Defendant deliberately drove into the Claimant’s vehicle.

It may be that he assumed that the vehicles would not actually make contact, or that the Claimant would realize that the Defendant was not going to let the Claimant in front and the Claimant would defer. [ 20 ] This is an accident that should not have happened. It occurred because two motorists were driving in an aggressive manner and both were unwilling to yield.

The Claimant was determined to merge in front of the Defendant and the Defendant was determined not to allow it. [ 21 ] Both were at fault and I would apportion the fault equally. [ 22 ] At the outset of the Hearing, it was agreed that no monetary remedy was being sought but merely a declaration of liability for the accident. [ 23 ] Because the Claimant has been partially successful, I would allow recovery of the filing and service fees of $130.00. ________________________ Justice of the Peace, Donald W. Yule, Q.C.