'ICBC acted unreasonably': Kelowna man's recording wins over tribunal

Photo: The Canadian Press

A Kelowna man who ICBC said shared the blame for a Highway 97 crash managed to shift the narrative in a recent BC Civil Resolution hearing.

According to a decision published last month, Wesley Nygard and an unnamed driver were travelling north-east on Highway 97 in West Kelowna toward the William R. Bennett Bridge Dec. 5, 2022 when they collided.

Nygaard told ICBC at the time that he was in the left lane when the other, unnamed, driver pulled alongside him in the right lane, then veered ahead of him.

Nygaard said there wasn’t enough space and as the other driver changed lanes and their driver-side rear panel collided with Nygaard’s passenger-side front panel.

The other driver, however, told ICBC at the time "they had been in the right lane for about five minutes when, in their rear-view mirror, they saw an aggressive driver weaving through traffic,” tribunal vice chair Christopher C. Rivers wrote in a decision published last week.

“They said they were ‘minding their own business’ when they felt an impact as Nygaard collided with the rear quarter panel of their vehicle. Nygaard moved in behind them and then the drivers both pulled over to exchange information,” Rivers said.

It was in a recording of that exchange that Nygaard collected the evidence needed to win over the tribunal and change ICBC’s decision.

“The recording clearly shows each party accusing the other of being responsible for the accident before (the other driver) says ‘You cut me off, then wouldn’t let me in the lane’ and later ‘When you speed up when someone is taking [sic] in the lane, you cut people off like a jackass.’”

Upon hearing that, Rivers said that it was clear that the other driver’s report to ICBC was lacking and Nygaard’s had more merit.

“I find these statements contradict (the other driver’s) statement to ICBC that they had been in the right-hand lane for five minutes when they saw Mr. Nygaard weaving through traffic behind them before the collision,” Rivers said.

“I find (the other driver’s) recorded comments make it clear they were behind Nygaard at least once, since they had been ‘cut off.’ I am more inclined to accept (the other driver’s) comments at the accident scene, since they made them in the moments following the collision and not obviously for the purpose of disputing liability."

Rivers ruled that ICBC must amend its internal responsibility assessment to reflect that conclusion.

Rivers also highlighted the effort, or lack thereof, ICBC put into determining responsibility.

The insurance corporation cited part of the Motor Vehicle Act about how drivers are prohibited from changing from one lane to another unless a driver has determined they can do so safely and without affecting the travel of another vehicle. It also included summaries of both drivers’ statements, taken during their respective initial telephone reports.

However, ICBC did “not provide any explanation for its decision whatsoever,” Rivers said.

“It simply re-stated both parties’ statements, included an excerpt from the MVA, noted the lack of witnesses and video footage of the accident itself, and then stated it was assigning 50% responsibility to each driver,” Rivers said.

“I find ICBC acted unreasonably in assigning responsibility.”

Nygaard won back his tribunal fees and dispute-related expenses.

ICBC was ordered to amend its internal responsibility assessment to reflect that Nygaard was not at all responsible for the Dec. 5, 2022 accident, and is also entitled to post-judgment interest under the Court Order Interest Act.