CASE LAW - Provost v Bolton

BC Courts Coat of ArmsOn April 24, 2012 Kyle Katerenchuk, an employee of Dueck Downtown Chevrolet Buick GMC Limited, left a pickup truck unlocked, unattended and idling with the keys in the ignition outside one of the dealership's detailing bays. It was stolen by David Bolton.

The vehicle was reported stolen to police and it's OnStar tracking system showed it to be in Richmond. Constable Cotton located it on #3 Road and the Westminster Highway. Surveillance was conducted by a number of unmarked police vehicles until it stopped in an alley between Smith and Sexsmith Streets. At this point it was decided to arrest the driver.

They were not successful and a pursuit began with one of the police vehicles being rammed by Boulton during his attempt to escape.

The pursuit was called off by a supervisor. Emergency equipment on police vehicles involved was turned off, but some officers continued to follow at greater than highway speeds. A second crash resulted when Bolton was unable to negotiate a turn at the intersection of #5 and River Roads and collided with a vehicle waiting at a red light, seriously injuring Brandy Brundige.

Mr. Justice Kelleher was left to sort out the issues of liability for the incident. He found that the majority of the fault lay with Mr. Bolton, but assessed liabilty against Dueck for "creating the situation that was highly tempting to any opportunistic would be thief." The police were also held partially liable for the collision that injured Ms. Brundige.

Link:

Comments

Just wrong

A perfect example of our justice system gone array.  This thief is 100% responsible AND accountable.  We are a "blame someone else society" and have completely faulted to others for our behaviour, total morale corruption.  Todays judges are a product of this "blame someone else" for your actions syndrome.  When will we take individual responsibility AND accountability for our own actions?  What a messed up justice system.

Couldn't agree more

I couldn't agree more with Leisa.

What the hell has happened to our society?  It seems that no one is prepared to take responsibility for their own actions. Have the last four or five generations become so immune to the idea?

I'm sorry but it is NOT society's fault that you screwed up. If you're responsible, have the gumption to say so and take your lumps for it.

As for our "Justice" system, we've lost the meaning of "Justice".  A major part of why there is so little respect ant more.

Just to be clear, then ...

So would I be right in thinking that Leisa and Hawk believe police should maintain pursuit until the miscreant either escapes them, is caught by them, or crashes into something - or someone?  A crowd of schoolchildren, maybe?  Actions have consequences and cops should know this as well as anyone, I reckon.

And for pity's sake, you've got a vehicle that's transmitting its location, plus which the police can bring in aerial surveillance; it's not going to be hard to catch the guy calmly.

Misinterpretation

Perhaps CompetenDrivingBC, you have misinterpreted my comments.  I'm not agreeing that fault should lie with Dueck's nor with the police actions.  Yes, there may be negigence in both cases but that was not my point.

I am fed up with the attitude by so many that their penchant to steal, speed, cause bodily harm, etc. etc. is the result of society.  Nor on the fact that they were "Native" or whatever other lame excuse they can come up with.

We are all responsible for our own actions. If I screw up, it's NOT my parents' fault, nor my wife's or girlfriend's nor anyone else's. IT WAS ME who screwed up and I'm not about to blame anyone for it except myself.

Our courts and judiciary seem to have fallen for this "blame society" BS and it just grates me.

Leisa said it was 100% thief's fault .... and I agree. If he hadn't stolen the vehicle, none of the following events would have occurred .... despite possible negligence on the part of Dueck's and/or the police.

Ignorance at its finest I say

You know, for the type of responsible, prudent, law abiding public that populates this website the condemning comments on this article are remarkably nearsighted to the nuance of the case(s):

1. In the case of Crown vs The Thief, yes The Thief will be found 100% guilty for theft, running away from Police, causing bodily harm and whatever other provable charges the prosecution throws at them.

2. In the case of Dueck vs The Victim, yes Dueck is responsible - leaving vehicles unsecured is proscribed against in the MVA, even if the key is not there, simply leaving the vehicle unlocked is considered a ticket-able offence. If the driver of the pickup truck simply turned the ignition off, pulled out the key, locked the vehicle and put in their pocked - the truck would not have been stolen as easily as it was. That is the reason we have laws that require law abiding property owners to secure their property and reasonably prevent its unauthorized use - else suffer the owner’s liability when the property is used in a crime.

3. In the case of RCMP vs The Victim, yes RCMP officers who did not follow the orders from the chain of command are responsible. They are a para-military organization and insubordination in itself is a gravely sin. Insubordination which leads to casualties is  completely inexcusable.

We maybe a blame someone else society, but in this case, in-regards to the victim the blame is quite well placed on all parties. The victim suffered damages, and it is well documented that had the thief not stolen the truck and had the Dueck secured their property and had RCMP officers followed orders the damages could have been prevented. Trucks are supposed to be locked to prevent damages, orders are supposed to be followed to prevent damages, if damages result from negligence towards lawful and reasonable requirements we hold everyone who is responsible accountable. Assigning fault in-relation to victim’s damages to all responsible parties is why we are a civilized society. This is not morale corruption is it lawful justice. The criminal’s actions are not in any way exonerated, don’t pretend like they are.

When you say no one is prepared to take responsibility, it is true - everyone wants to escape liability without injury. Dueck, RCMP and The Thief are liable for the The Victim’s damages, and it looks like they have not escaped it this time. Everyone is being held accountable for their documented faults. Justice is being served for the victim. You may say that you don’t respect the system, but I think that is because you have no understanding of it.

Criminals are people who by one way or another have overstepped the bounds of the law. They do so due to lack of foresight, stupidity, malice, etc. Criminals have been around since people came up with laws. Every society must account for the fringe element, and every society would be well served to plan and prepare to limit the criminal’s access to committing crimes - i.e. by securing individual private property. The guy who left a truck running with keys in it is partly responsible as there is absolutely no good reason to leaving vehicles like that running with keys unattended.

Just an FYI, Police vehicles are equipped with removable keys and transmission locks, so that the vehicle can remain running (for a very small off-chance that it won’t start when needed most), but the transmission is locked in park, and there is no key in the ignition which is needed to unlock the transmission.

The damages to the victim will be paid via civil action: 70% of the damages would be assigned to the Thief - who will pay zero for them - Thieves don’t have much money, kind of the reason they want to steal things - to get some money. ICBC will cover upto $200,000 of these awards, the rest the thief will “owe” to the victim (and $200,000 to ICBC). The other 15% and 15% will come out of Dueck’s pocket and RCMP’s pocket (taxpayer).

Considering that the victim maybe damaged/disable for life, and if the damages are calculated to be 1 Million, the victim will get $200,000 (ICBC) + $150,000 (Dueck) + $150,000 (RCMP) with the Thief owing another $500,000 to the victim.
If neither Dueck or RCMP were found at fault the victim would be given $200,000 (ICBC) with the Thief owing another $800,000 - which they would never pay.

Now consider yourself the victim who has been damaged to the tune of $1,000,000, what would you rather have (aside from never having been involved at all):

a) $500,000
b) $200,000

I am 100% certain that if any of you outraged folk were the victim you wouldn’t be so slow as to why were are a “blame someone else society”.

Where do I start....

"even if the key is not there, simply leaving the vehicle unlocked is considered a ticket-able offence"

This certainly sounds like you are saying that just by leaving the doors unlocked, even if a key isn't present, that it is a ticket-able offence.

Section 191 of the MVA of BC addresses what action a driver must take in leaving a parked vehicle.

Leaving parked vehicle

191  (1) A motor vehicle must be equipped with a lock or other device to prevent the unauthorized use of the motor vehicle.

(2) A driver must not permit a motor vehicle to stand unattended or parked unless the driver has

(a) locked it or made it secure in a manner that prevents its unauthorized use, and

(b) if the motor vehicle is standing on a grade, turned the front wheels of the vehicle to the curb or side of the highway.

This certainly doesn't mean that it is illegal to leave a vehicle with exterior doors (or I guess, windows) not closed and locked.

What about a motorcycle ?

It means some type of lock, like an ignition lock.

In this case, yes, of course, the vehicle was running, and the exterior unlocked and that is illegal under the MVA.

Yes, civilly the blame has been apportioned to all parties, and yes the fact that the thief isn't 100% to blame is a bitter pill for some to take.

"The other 15% and 15% will come out of Dueck’s pocket and RCMP’s pocket (taxpayer)."

The payment of the 15% of the award placed on the driver that left the vehicle running will NOT be the responsibility of the driver (the insured).  He was negligent in not securing the vehicle and thus the liability insurance for the vehicle (ICBC) will cover his negligence, that's what insurance is for.  The only time it wouldn't is IF he was in breach. 

Not complying with Section 191 of the MVA does not breach his insurance, just like having a collision after going through a red light doesn't breach your insurance.

As for the cops, the judge ruled they were negligent as well.  Since, I believe the RCMP are "self insured" yes they don't have an insurance company that pays for their negligence they pay if themselves.  If they had liability insurance then their insurance company would pay the 15%.

The test for negligence isn't the fact that the RCMP members were told to do something by a superior and didn't, it's the entire act and what a prudent person should have done.  The fact that what they did wasn't prudent AND a superior told them to act differently is certainly additive.

BUT,,,, evem if the RCMP member's superior hadn't given an order, they would have still been liable.

Not sure what are you trying to argue?

You virtually confirmed every single point I’ve made, but you did so in what I perceived as a counter-argument fashion.

As far as “are saying that just by leaving the doors unlocked, even if a key isn't present, that it is a ticket-able offence.”

Absolutely, saying just that:

BC:
https://www.timescolonist.com/news/nanaimo-woman-stunned-to-see-ticket-f...

Quebec:
https://www.cbc.ca/news/canada/montreal/ndg-resident-questions-ticket-fo...

https://www.reddit.com/r/montreal/comments/4nd66p/ticket_for_leaving_car...

Australia:
https://www.lifehacker.com.au/2015/08/is-it-legal-to-leave-your-car-door...

And think about it - some cars don’t even require a key to unlock the transmission - theres a hidden by-pass. SO anyone, especially kids, could get into a vehicle and set it in uncontrollable motion if its on a hill. You as the owner will be responsible for the damages your property causes.

And the other point about

“The payment of the 15% of the award placed on the driver that left the vehicle running will NOT be the responsibility of the driver (the insured).”

Horse before the cart please, I never said the driver. The civil action will be awarded against Dueck - the owner, regardless if the truck was insured or not, or whether insurance was in-breach or not. Perhaps, if the truck was insured by ICBC and has the appropriate coverages and the operator was licensed appropriately for the type of insurance and declared coverages, then maybe perhaps ICBC will exonerate the policy holder if they so choose, as the alternative would be for Dueck to have to sue ICBC for coverage.

However, now that you brought up the driver - case#4: depending on the outcome of Dueck vs ICBC re: truck, Dueck may choose to seek compensation from the driver if their actions led to insurance being reasonably denied.

Doesn’t really change the weather of the fact that, unlike yourself, other commenters in this thread have colluded 3 separate cases into one and imagined that the thief will be held only 70% responsible for their thievery.

I thought what I said was

I thought what I said was clear.

You stated : "even if the key is not there, simply leaving the vehicle unlocked is considered a ticket-able offence"

I supplied an excerpt from the BC Motor Vehicle Act, which states a vehicle must be "locked or made secure in a manner that prevents its unauthorized use", which mean having the ignition locked, OR the vehicle locked.

It's not a great idea to, for example, leave your vehicle running (or just the keys in it) even with the windows up and the doors locked since the best anti theft device is the ignition key, but you aren't breaking the law, well except, apparently, in Nanaimo.

In other words in some manner locked to prevent unauthorized use.

That does NOT mean the vehicle's body compartment has to be locked, even if the key is not present.

So, no I don't agree with you on your point.

You can quote all the news items you want, it doesn't make leaving your car unlocked (exterior) an offense.  IT IS NOT.  The cop was wrong in the news story, plain, and simple.  Perhaps a half decent reporter would have got to the bottom of the actual story, that the cop was WRONG.

As for Quebec and Australia, I don't know the laws there and those jurisditions have no bearing on the law in BC.

"And think about it - some cars don’t even require a key to unlock the transmission - theres a hidden by-pass. SO anyone, especially kids, could get into a vehicle and set it in uncontrollable motion if its on a hill. You as the owner will be responsible for the damages your property causes."

Not to mention vehicles with manual transmissions, BUT there is no law. 

If your car is stolen, either by starting it (if you've left a key) or rolling, it is stolen.  Since it is being operated by someone who is not authorized, ICBC won't cover any liability claim against the vehicle, nor would you be liable for damages caused while the vehicle was being operated by the thief. 

If you were held liable (which you would not) it would be "negligence" and then your ICBC coverage would kick in.

As for the stolen vehicle, any claim against the owner, or the person who was responsible for the vehicle (didn't lock it) they would be covered by ICBC, period.

As for: "if the truck was insured by ICBC and has the appropriate coverages and the operator was licensed appropriately for the type of insurance and declared coverages, then maybe perhaps ICBC will exonerate the policy holder if they so choose, as the alternative would be for Dueck to have to sue ICBC for coverage"

I think it's safe to assume the vehicle was covered.  The vehicle was owned by a auto retailer.  To be operated on a highway in BC (road) it, by law, must have a minimum of $200,000 liability coverage with ICBC.  Thus that IS the appropriate coverage (public liability coverage).  It was likely covered for theft as well.  (and yes, you are covered for theft even if you left your vehicle running) 

To leave a vehicle (ie, not driving it) what "license" do you think would be "appropriate" ?  (hint: you don't need a driver's license to secure or not secure a vehicle)

ICBC doesn't "exonerate" the policy holder (the insured) it "covers".

ICBC doesn't "choose" to cover a vehicle in the event of a claim.  ICBC determines if there is coverage for the kind of loss, if there is it covers. 

If ICBC simply "choose to cover" or "choose not to cover" a loss, not based on law, ICBC would be open to a "bad faith" law suit.  ICBC would not get in that position.  Bad faith is VERY SERIOUS to an insurance company.

I'm not sure of the law, but I doubt Dueck, being the employer of the person who left the vehicle parked could sue it's own employee.  Since ICBC would cover the loss, it would be questionable what loss Dueck would have.

 

Interpretations

In the words of the great Lebowski: “Thats, like your, opinion, man”.

You provided a law that states:

(a) locked it or made it secure in a manner that prevents its unauthorized use

But then you contend that since ignition requires a key its a lock. I don’t think that the place you insert a key to start the car is a lock.

lock
läk/
noun
noun: lock; plural noun: locks; noun: a lock

    1.
    a mechanism for keeping a door, lid, etc., fastened, typically operated only by a key of a particular form.

Getting into an unlocked car and rolling it - is its unauthorized use. Lack of the key in the ignition does not prevent anyone from setting the vehicle in motion, therefore it is not “in other words in some manner locked to prevent unauthorized use”. Sleeping in the car is also use of the car, and that doesn’t even require rolling the vehicle. Another factor - circuimventing a lock - with a screwdriver or by reaching into an open window to open the door from the inside is defacto Breaking And Entering - a criminal offense.

The other part of the discussion is a matter of civil courts, there are too many what ifs to consider: i.e. What if the truck was insured with 3rd party liability only?
I wouldn’t bother with the further what ifs when it comes to civil courts, possibilities are endless.

The overall misdirected trend of this thread has been addressed.

A Thief is a Thief

 Thank you Hawk for trying to explain our point to the Competent Driving guy.  Unfortunately, by his response, he too has clearly fallen into the "someone else is to blame" as he evidently missed the 100% fault to the thief.  He also missed the definition of responsibility and accountability.  Our "justice" system has long been replaced as a "criminal" system because there's no clear "justice" anymore, thanks to judges and lawyers who embark and rule outside the purpose and intent to uphold the law, it's all so muddied with uncommon sense. I would suggest that Competent Driver thinks along the same line as the judge who questioned a rape victim that had she just kept her knees together she wouldn't have been raped!  

I haven't 'clearly fallen into' anything.

And I don't appreciate being patronized.  I also don't attack others here for having a different point of view, though I have scant regard for those who use internet forums to attack others as though this constitutes a rational argument or point of view. It doesn't.

I would suggest that Competent Driver thinks along the same line as the judge who questioned a rape victim that had she just kept her knees together she wouldn't have been raped!  

And that comment is just disgusting and dismaying - not for a moment would I ever think anything along those lines: you're not only ill mannered, but completely out of line here. Frankly, you owe me an apology - but I won't be holding my breath waiting for it.

Others have already pointed out the inescapable facts this terrible event could not, and would not, have taken place unless the Dueck guy had (illegally) left the vehicle unattended and running, enabling the thief to steal the truck. Nor would it have taken place if the police had followed orders and used their resources intelligently instead of acting like a bunch of renegades.

Don't get me wrong - the primary blame definitely lies with the thief, he should absolutely be held accountable for his actions and prevented in every way possible from ever doing something like this again.  But it was more than just his actions that led to the suffering of the innocent victim, and recognizing this is necessary as a step toward preventing it happening again.  And that's a fact.

 

Civil vs Criminal

I agree with you, CompetentDrivingBC.  The missing issue in the minds of most of the "the crook is 100% to blame crowd" is the fact that this is the resolution in a C I V I L court, not a criminal.

Criminally, there is no question that the thief is to blame and without some evidentiary problems will likely be convicted of many criminal offenses.  The thief isn't 70% guilty.

Likely the person who left the vehicle running, would receive a ticket for leaving the vehicle unsecured, but that's the extent.

There is a myriad of scenarios, that, to the lay person, the civil assessment of liability seems completely out of line.

The person who accidentally blows through a stop sign and is in collision with a stolen vehicle.  The stolen vehicle, with driver, flees the scene.  "How can I be at fault, the other vehicle was stolen and it took off ?  If the vehicle hadn't been stolen it wouldn't have been at the intersection and even though I missed the stop sign, I wouldn't have hit anything."

You are driving down a two way street, one lane in each direction.  You are signalling to turn left into a driveway, as you turn left a vehicle that had been following you passes you and as you make the turn you are hit.  Police attend and issue the other driver with a ticket for passing while unsafe.  You later find out that you are 75% at fault for the collision.  What !  Yup.   Now depending on all the evidence it may be determined differently but generally speaking that is the liability for that type of collision 75/25 left turning vehicle.

David Bolton is completely

David Bolton is completely 100% at fault. You should be able to leave things in your yard unattended, your car unlocked, your house unlocked but alass this is not the world 

we live in. We have to lock and bolt, and insure everything on the chance it may be stollen.

I don't find the dealership at fault. I've seen police cars left unattended running on the street with not an officer anywhere, do we blame the police if it gets stollen? 

People steal, it doesn't matter if it's running, locked sitting on the street, it happens daily.

I hope this article opens some eyes

I've mentioned in response to many posts in the past where someone is concerned if they will get a ticket for not having a BC license even though they actually live in BC, suggesting they "could just say...."  or worried they will get a ticket for not transferring their vehicle into BC in time.

I've said time and time again, the big threat, is NOT the "dreaded" violation ticket, it's what happens if, while driving without being properly licensed or insured, you are involved in a collision for which you are liable.

Especially if you have some assets that can be attached.

The sited case, for example.  Just the legal fees would be phenomenal.

Civil courts are a whole different ball game from criminal and or quasi criminal court cases.  That is the reason, police do not have any involvement in determining liability.

It's a mine field.  It seems at times completely unfair, but just defending yourself could be a financial nightmare, if you don't have an insurance company on your side.

We all think it crazy when we buy a toaster and see in the instruction "Not to be used in the bath tub", or sleeping pills that have the warning, "Caution, may cause drowsiness".

 

No apologies...

..... forthcoming.  Having to request an apology only serves to show it would be insincere.  Unfortunately, competent driver depicts himself as a criminal supporter and a gullible one to boot.  And outrageous is correctly named as he likes to call people "ignorant" and his diatribe misses the whole point of responsibility and accountability to the criminals of our society.  What rulings they have in Europe is not my concern.  We in Canada, should make our own to suit what reflects our society, values and morales.  My point being, our "justice" system no longer serves the best interest of society.  And I rest my case, as this criminal will NEVER pay for his crimes (financially).

When I read your reply

I think of this video which is very appropriate: https://www.youtube.com/watch?v=1i80qaETtw8

So I'm not sure if you are proposing that we should all leave our vehicles parked with motors running, or if all cops should drive bulldozers and demolish anyone who gets in their way in the high-speed pursuit.

The criminal has already been held 100% accountable. But since criminals  have no money to the tune of hundreds of thousands of dollars they can't compensate for damages. Debtors prison? Servitude? What do you propose?

 

All you are doing is moral grandstanding on an undetermined position. What do you mean by accoutnability and repsonsibility? Concrete concepts please...

I requested nothing from you.

With respect (he wrote, with a wry grin) I made a statement, followed by a surmise. Both were clearly correct. Being a Canadian, I'll politely suggest that you learn to read.

As for depicting myself as a gullible criminal supporter, you're not only being rude but pushing your luck here. The Canadian justice system has it's limits when it comes to libel and defamation so I really would urge you to think a moment before you next reach for the keyboard; our site host knows who you are.

You're quite right that the criminal will never pay for his crimes, financially or otherwise. Being dead has that affect on people. Interestingly though, he did in fact acknowledge his culpability beforehand; it's ICBC (through their legal people) who fought the case on his behalf, as it were, with respect to liability.

Rulings in other jurisdictions such as Europe may not be your concern; and yet, they provide an analogy to the system(s) in place here in our country.

As for our Outrageous friend, sometimes I think he's a bit out to lunch, perhaps verbose, (sorry mate!) but speaking for myself I enjoyed his post and thought he presented his view of the case quite well here.

I would also point out that he didn't 'call people ignorant'. He stated his belief that some of the comments made by others were examples of 'ignorance at its finest'. There is a difference; furthermore, ignorance should not be confused with stupidity (and he didn't call anybody stupid either, nor would I).

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I would like to add some insight into my own point of view. During the course of my work in the driver education field over the last thirty years, I have worked with various Occupational Therapists helping to try and put people's lives back together after tremendous horrific and traumatic injuries caused by vehicle accidents and incidents. The costs to these individuals, to ICBC, to society, can be tremendous both emotionally and financially. Doing all we can to prevent them must be the paramount concern. Because apportioning blame isn't ever going to do these victims a damn bit of good, no matter how satisfactory it might seem to others; while at the same time, correctly assessing who was directly or contributorily negligent is reasonably likely to prevent future recurrences and further suffering. Which I think is important.

 

If you can't take the heat stay out of the kitchen

Off topic but must be said......

These forums are for an exchange of ideas. We don't all agree.

Making idle and ridiculous threats is silly in the extreme.

"The Canadian justice system has it's limits when it comes to libel and defamation"

Really ?  Perhaps before you start throwing "big" words around you should know what they mean.  "libel and defamation"  ????

Libel is a TYPE of defamation, defamation and libel aren't two types of acts.

There are two types of defamation, LIBEL and SLANDER.   Libel is written or published and Slander is verbal.

Not that there is even the hint of libel in Leisa's comments, but it would be very interesting to try to prove libel in this case, for one, a defense of libel is that it was the truth, but long before you got there, you would have to prove that you were identified because the act must "hurt the person's reputation".  Do all your friends and the public know that "CompenetDrivingBC" is you ???  Of course not.

Libel ISN'T hurting your feelings.

If you don't like interaction where not everyone agrees with you perhaps forums aren't for you.

Threats taint your credibility.

Threatening...

What exactly are you threatening me with?  Defamation? Lawsuit? Or that the host "knows who I am" and therefore implies some threatening consequence.  I use my name; I don't hide behind an anonymous name. As for "warning" me to "think before I use the keyboard" leaves me with the clear implication that you surmise I am stupid and therefore require your "approval" of what I freely am entitled to express. 

I think we're done here.  I am no longer interested in further dialogue with either outrageous or competent driver on this subject.  You both clearly have issues with women and their shared comments. 

Appreciate your effort, let us move on.....

End of Story

I think that we've strayed far enough from the topic, so I'm closing the ability to comment further.

If you have a comment pertinent to the original topic that you wish to appear here, simply send it to me via e-mail and I will see that it gets here.

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