CASE LAW - Panganiban v Sovdat

The only surprise here is that a motorist was found 80% at fault. You have pedestrians, probably without legal councel, versus the ICBC with high priced legal councel. Deciding between the parties are the police who, outside their work as police, are almost certainly customers of the ICBC (for whom more liability for motorists will ultimately increase their  personal insurance rates) and a justice who also, outside his work as a justice, is almost certainly a customer of the ICBC (so with the same apparent conflict of interest as the police). 

Unless this case is not correctly reported here, the decision does not even follow the Motor Vehicle Act. The Act states (179 2):

A pedestrian must not leave a curb or other place of safety and walk or run into the path of a vehicle that is so close it is impracticable for the driver to yield the right of way.

So, if correctly cited, Justice Elwood's decision "that the girls did step into the crosswalk when Ms. Sovdat was so close that it was impractical for her to stop..." is ultra vires. Legally, 'impractical' is quite different than 'impracticable', 'impractical' essentially means reasonably convenient, while 'impracticable' means incapable of being performed or accomplished by the means employed (i.e., in operating a motor vehicle).

One imagines that were the victims not 14 year old girls, but rather adult men, that liability for the driver would not have been apportioned at as much as 80%. While the details of the case are not given, it is hard to imagine that someone who was not a motorist first (and a police officer or a justice second) would give motor vehicle operators convenience any weight in apportioning fault.

Assuming that the decision in this case has been reported correctly, the justice’s decision would seem to reinforce, as if it needed reinforcement, that the Motor Vehicle Act is interpreted by motorists in favour of other motorists. 

This case is between two pedestrians, probably without legal counsel versus the ICBC with full time, specialist counsel. The legal system would seem stacked in favour of the latter. The police, who would decide in the first case if any infraction of the Motor Vehicle Act had occurred are motor vehicle drivers first (at least in time) and police second and, further, are, outside of their police work are almost certainly customers of the ICBC (so findings against other motor vehicle operators will ultimately increase the cost of their insurance). The justice deciding the case is also motor vehicle driver first and a justice second and is also almost certainly a customer of the ICBC with what that suggests.

That is the only way to explain the decision in this case. According to what is reported here the justice’s decision was based on his reading of the Motor Vehicle Act that:

[T]hat the girls did step into the crosswalk when Ms. Sovdat was so close that it was impractical for her to stop and that Ms. Sovdat had the right of way…

Such a reading can only be interpreted as a clearly biased reinterpretation of the Motor Vehicle Act that reads (179:2):

A pedestrian must not leave a curb or other place of safety and walk or run into the path of a vehicle that is so close it is impracticable for the driver to yield the right of way.

The fact that stopping might have been ‘impractical’, i.e., inconvenient, would seem quite at odds with having to stop when it was ‘impracticable,’ i.e., impossible in the situation (operating a motor vehicle).

I would guess that were the victims here not 14 year old girls, the decision would have been even more favourable for the motorist (if the case even came forward from the police).