IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111130

Docket: M094042

Registry:
Vancouver

Between:

Kathleen Esther Haughian

Plaintiff

And

Alykhan A. Jiwa,

Al-Nashir
Kassamali Karim Jiwa

and DCFS Canada
Corp.

Defendants

Before: The Honourable Mr.
Justice R. Punnett

Reasons for Judgment

[1]            
At issue is who bears responsibility for this motor vehicle accident.  The
defendant seeks a summary determination of liability and dismissal of the
plaintiff’s claim.

[2]            
The accident occurred at approximately 10:50 a.m. on June 9, 2008 as
both the plaintiff and the defendant proceeded eastbound on Sunset Street, east
of Smith Avenue, in Burnaby, British Columbia.

[3]            
Sunset Street has four lanes consisting of two lanes in each direction. 
In addition, on each side there are diagonal parking spaces.  The diagonal
spaces on both sides of the roadway head into the curb edges of the road in a westerly
direction.  The result is that the entrances to the parking spaces on the westbound
side of the road face the traffic.  Those on the eastbound side (on which the
plaintiff was driving) face away from the traffic.

[4]            
That the plaintiff was attempting to park in one of the diagonal spaces
to her right is not disputed.  In doing so, the plaintiff crossed in front of
the defendant who was also proceeding in the same direction on Sunset Street
but in the lane to her right.  The vehicles collided with the defendant’s left
front corner hitting the plaintiff’s right side passenger door.

[5]            
It is in the details of this event that the evidence diverges.

[6]            
For the reasons that follow, I am satisfied that this matter can be
resolved summarily and that it is not unjust to do so.

[7]            
The plaintiff has filed an affidavit on her own behalf and an affidavit
of a witness in support of her opposition to this application.  The defendants
have filed an affidavit of the defendant driver and an expert engineering
report.  The defendants object to the admissibility of certain portions of the
plaintiff and the witness affidavits.  The plaintiff objects to the expert
report filed by the defendant.  I shall address first the evidence of the
plaintiff, then the issue of the expert report, and then the matters of summary
disposition and liability.

Evidentiary Issues

[8]            
The plaintiff’s affidavit appends portions of her examination for
discovery by counsel for the defendants.  The defendants object to the
tendering of discovery evidence in this way.

[9]            
Summary applications are based on affidavit evidence.  However, they are
still trials and as such are governed by the rules and evidentiary requirements
of a regular trial.  The following Supreme Court Civil Rules (the “Rules”)
are relevant:

9-7(5)  Unless the court otherwise orders, on a summary trial
application, the applicant and each other party of record may tender evidence
by any or all of the following:

(a)        an affidavit;

(c)        any part of the evidence taken
on an examination for discovery;

[10]        
However, the breadth of the statement in part (c) above is restricted by
Rule 12-5(46) which provides:

(46)      If otherwise admissible, the evidence given on an
examination for discovery by a party … may be tendered in evidence at trial by
any party adverse in interest, unless the court otherwise orders, but the
evidence is admissible against the following persons only:

(a)        the adverse party who was examined;

[11]        
In the plaintiff’s affidavit, she states: “[i]n my examination for
discovery, I described precisely how the accident occurred.”  She then attaches
as an exhibit a copy of 29 pages from her examination for discovery conducted by
counsel for the defendants.  In other words, she seeks to rely on the evidence
she gave on her examination for discovery by the defendants.

[12]        
The defendants’ objection is that only the defendants can tender the
plaintiff’s examination for discovery evidence.  They rely on the rules cited
above as well as Tesscourt Capital Ltd. v. FG Nutraceutical Inc., 2011
BCSC 814; Mikhail v. Northern Health Authority (Prince George Regional
Hospital), 2010 BCSC 1817; Schwartz v. Selkirk Financial, 2004 BCSC
313; Pete v. Terrace Regional Health Care Society, 2003 BCCA 226; Great
Canadian Oil Change v. Dynamic Ventures et al, 2002 BCSC 1295, and Shiels
v. Shiels (1997), 29 B.C.L.R. (3d) 193 (S.C.).

[13]        
I am satisfied that the discovery evidence sought to be introduced by the
plaintiff cannot be relied upon by the plaintiff for the truth of its contents. 
It can however, be relied on for the more limited purpose of whether the
litigation is capable of being summarily resolved, an issue I shall address
later.

[14]        
The plaintiff also relies on the affidavit of a witness.  The defendant
seeks to strike portions of that affidavit.  An affiant can only depose to
facts that would be admissible at a trial.

[15]        
Rule 22-2(12) and 22-3(13) provides:

(12)      Subject to subrule (13), an affidavit must state
only what a    person swearing or affirming the affidavit would be permitted to
state in evidence at a trial.

(13)      An affidavit may contain statements as to the
information and belief of the person swearing or affirming the affidavit, if

(a)        the source of the information and belief is
given, and

(b)        the affidavit is made

(i)         in respect of an
application that does not seek a final order,

[16]        
As noted in Chamberlain v. Surrey School District # 36 (Surrey) (1998),
168 D.L.R. (4th) 222, 85 A.C.W.S. (3d) 72 (B.C.S.C.), by Saunders J. at para. 15:

[15]      The court has the power
to strike inadmissible evidence from affidavits: Evans Forest Products Ltd.
v. The Chief Forester of British Columbia (6 April 1995), Vancouver A943891
(B.C.S.C.) [summarized 54 A.C.W.S. (3d) 180].  In practical terms, when there
is no time between the application to strike inadmissible evidence and the
hearing of the lis, this means portions of filed affidavits are given no
weight by the court.

[17]        
The witness was turning right onto Sunset Street.  He deposes the
following in his affidavit (the bold portions are in dispute):

6.         At the time Mr. Jiwa turned left on to Sunset
Street from Smith Avenue Southbound, I had been about to turn right onto Sunset
Street from Smith Avenue Northbound. Although I had the right of way to
proceed onto Sunset Street, Mr. Jiwa was proceeding anyway so I braked and
waited until it was safe to make my turn immediately after Mr. Jiwa made his
turn.  Mr. Jiwa cut me off to make his turn and I am very confident that had I
been continuing straight northbound on Smith Avenue instead of turning right
onto Sunset Street, my vehicle would have been struck by Mr. Jiwa.

7. I disagree with paragraph 11 of Mr. Jiwa’s
affidavit.  It was very clear to me that Mr. Jiwa was in a hurry.  He was
driving aggressively and too fast for the area.  He was driving dangerously
immediately before the accident.

8.         When I turned onto Sunset Street at almost the
same time as Mr. Jiwa, I immediately saw that Ms. Haughian’s vehicle was
already in the process of parking.  I am certain that Ms. Haughian was not
making a wide turn from the left lane at the time Mr. Jiwa struck her vehicle
as Mr. Jiwa states at paragraph 12 of his affidavit.  I disagree that Mr. Jiwa
was unable to stop before colliding with Mrs. Haughian’s car.  If Mr. Jiwa had
not been speeding he had plenty of time to stop because I noticed the
Plaintiff’s vehicle immediately upon turning onto Sunset Street and I was
behind Mr. Jiwa.  Since I could see that Ms. Haughian was in the process of
parking I cannot understand why Mr. Jiwa could not see that.

…

12.       After the accident, I gave my contact
information to Ms. Haughian because I felt that Mr. Jiwa was absolutely the at fault
driver.  Mr. Jiwa was driving too fast and could have avoided the accident.

13.       I provided a
statement to ICBC on June 17, 2008. Attached hereto and marked as Exhibit “A”
to this my affidavit is a true copy of the statement I provided to ICBC.  I do
not have an unredacted copy of the statement.  I confirm that the contents of
my June 17, 2008 statement to ICBC are true and accurately recount what I
observed a the time of the accident.  I disagree only with: firstly that I observed
the Haughian vehicle pulling in, and secondly that I referred to Mr. Jiwa as “Indo
Canadian”.  As I did not sign the statement, I would have made those changes if
I was asked to sign.

[18]        
The defendant seeks to have the bold portions struck as being hearsay, personal
opinion, editorial commentary or argument rather than fact.

[19]        
The witness should have confined his evidence to facts.  He should not
have added his descriptive opinions of those facts (see L.M.U. v. R.L.U.,
2004 BCSC 95, at para. 40; Creber v. Franklin, 42 A.C.W.S. (3d) 231, at paras.
19-21).

[20]        
I agree that the portions of the affidavit that are in bold in paras. 6,
7 and 12 constitute personal assumptions, commentary and argument rather than
fact.  However, I am not satisfied that the statements amount to hearsay, as
alleged by the defendant.  Paragraph 8 is also struck for the same reasons with
the exception of the first two sentences.  Given that the application to strike
was concurrent with the hearing of this application, I place no weight on the
portions noted when considering the issue of liability.

[21]        
As noted at para. 13 of the affidavit, the plaintiff is seeking to
tender an unsigned statement for the truth of its contents.  Had such a
statement been tendered at trial, the witness would have had to exhaust his
memory first before being given the opportunity to refresh his memory.  As in a
full trial, it is not appropriate in a summary trial to tender an unsigned
statement for the truth of its contents, therefore para. 13 is struck.

Expert Report

[22]        
The plaintiff objects to the admissibility of the expert engineer’s
report filed by the defendants.  The objection is that it fails to comply with
Rule 11-6(1).  The defendants assert that when read as a whole the various documents
provided comply with the rule.

[23]        
Unlike the form of a report anticipated by the Rule 11-6(1), the report
is alleged to consist of the following:

a)    Letter from
defence counsel to Baker Engineering Ltd. dated November 18, 2010;

b)    Letter from
Baker Materials Engineering Ltd. dated December 2, 2010;

c)     Letter
from defence counsel to Baker Materials Engineering Ltd. dated December 21,
2010;

d)    Certificate of
Jonathan Gough P. Eng. certifying his obligation respecting Rule 11-2(a);

e)    Curriculum Vitae
of Jonathan Gough, P. Eng.

[24]        
The letter of November 18, 2010 is the initial request for an expert
report.  It sets out the issues and the assumed facts to be relied upon.  It
requests that the report set out the expert’s qualifications, the documents
reviewed, the assumed facts, the issues, a summary of opinions, a discussion
and analysis section, a statement by the expert, confirming he is not an
advocate and that the discussion section stand on its own requiring no
additional explanation outside the report to make it clear and complete.

[25]        
Had the expert provided a report complying with Rule 11-6(1), its
admissibility would not be at issue.  However, for reasons that are not clear
(although presumably as a result of a request from counsel to provide an
initial opinion), the expert responded with a letter dated December 2, 2010
that is not in compliance with Rule 11-6(1) but rather provides a brief
summary of the background and his opinion.  The expert concludes his letter by
stating “I trust that this brief letter is sufficient for your purposes at this
time.  If you require a detailed report, in a format appropriate for court
purposes please let me know.”

[26]        
On December 21, 2010, defence counsel requested by letter that the expert
provide an addendum to his December 2, 2010 letter commenting on the speeds of
the two vehicles at impact.  The expert did so by providing an addendum by
letter on December 22, 2010.

[27]        
The two letters were provided to plaintiff’s counsel as expert reports
under Rule 11-6.  Plaintiff’s counsel objected to the reports for failing to
comply with Rule 11-6(1).  On July 25, 2011, defence counsel provided to
plaintiff’s counsel a copy of the expert’s curriculum vitae and their November
18, 2010 letter along with a “certification” from the expert respecting his
role as an independent expert as required by Rule 11-2(a).

[28]        
The plaintiff objects to the admissibility of the report for a number of
reasons.  First, the plaintiff refers to the failure of the report to be in
proper form in that it is not a cohesive report and thus does not comply with
Rule 11-6(1).  Second, the plaintiff objects to the report’s admissibility on
the basis that it does not state that the expert is the sole author of the report.
Third, the plaintiff claims the expert does not articulate the facts and
assumptions he has relied upon.  Finally, if the report is admissible, the
plaintiff takes exception to the facts relied upon, the opinion expressed and the
weight assigned to each.

[29]        
Rule 9-7(5)(3) states that on a summary trial application, a report of
an expert setting out an opinion of an expert may be tendered as evidence if
the report conforms with Rule 11-6(1).

[30]        
Rule 11-6(1) sets out the mandatory requirements of an expert report.

(1)        An expert’s report that is to be tendered
as evidence at the trial must be signed by the expert, must include the
certification required under Rule 11-2 (2) and must set out the following:

(a)        the expert’s name, address and area of
expertise;

(b)        the expert’s qualifications and employment
and educational experience in his or her area of expertise;

(c)        the instructions provided to the expert in
relation to the proceeding;

(d)        the nature of the opinion being sought and
the issues in the proceeding to which the opinion relates;

(e)        the expert’s opinion respecting those
issues;

(f)         the
expert’s reasons for his or her opinion, including

(i)         a description of the factual assumptions
on which the opinion is based,

(ii)        a description of any research conducted by
the expert that led him or her to form the opinion, and

(iii)       a list of every document, if any, relied on by the expert
in forming the opinion.

[31]        
Ehrcke J. in Jones v. Ma, 2010 BCSC 867, at paras. 10-11 commented
on Rule 11-6(1)’s predecessor Rule 40A(5):

10.       Rule 40A(5) set out certain requirements that
expert reports are expected to meet.

11.       This is not simply a
matter of form.  The purpose of the rule is to ensure fairness to both parties
by providing the party on whom the report is served with adequate notice to
enable them to effectively cross-examine the expert and to properly instruct
their own expert if they choose to retain one.

[32]        
The report tendered fails to include, as part of the formal report, the
expert’s area of expertise, his qualifications and employment and educational
experience, the factual assumptions on which the opinion is based and a list of
every document, if any, he relied on in forming his opinion.  The expert himself
acknowledges the deficiencies of his report in his letter dated December 2,
2010.  He clearly did not prepare it or the follow-up letter with the intention
that they would be used for court purposes.

[33]        
In my view, the report fails to comply with Rule 11-6(1).  The rule
specifies the form a report is to take.  It is imperative in its language.  As
noted, it is not simply a matter of form.  It is not for plaintiff’s counsel,
or for that matter the court, to piece together various documents and attempt
to determine what the report actually consists of.  The object of the Rules
is the “just, speedy and inexpensive determination of every proceeding on its
merits” (Rule 1-3).  A failure to comply with the Rules may in fact be
contrary to that object where it leads to uncertainty and therefore has the
potential to increase the time and expense involved in resolving litigation.

[34]        
The defendants take the position that in the event the report fails to comply
with Rule 11-6(1) this Court should exercise its discretion pursuant to Rule 9-7(5)(e)(ii)
and render the report admissible even though it does not conform to Rule 11-6(1).
In encouraging this Court to exercise its discretion pursuant to Rule
9-7(5)(e)(ii), counsel for the defendant argues that the issue is not complex
and thus a lengthy and complex report is not necessary.

[35]        
I am satisfied that the report fails to comply with Rule-11-6(1).

[36]        
I will not exercise my discretion to include the report for the
following reasons: first, in order to either cross-examine the expert or decide
whether to obtain a reply report, the plaintiff is entitled to a report that
complies with Rule 11-6(1).  While the issues addressed in the report are not
complex, in my view, the plaintiff is prejudiced by the failure to comply with
Rule 11-6(1); second, while the court may be inclined to admit a report if, for
example, it properly references a separate statement of facts and assumptions
relied upon, that is not the case here.  I therefore decline to exercise my
discretion to permit its admission into evidence.

[37]        
However, in the circumstances of this case, the report is not required to
resolve this litigation given the clear evidence of the vehicle damage as shown
in the photographs, the positions of the vehicles on impact, the evidence of
the defendant driver and the admission of the plaintiff that she was moving
from the defendant driver’s left to right when struck.

[38]        
I now turn to the use of the inadmissible discovery evidence of the
plaintiff with respect to the issue of whether this case is suitable for
summary resolution.

Summary Resolution

[39]        
In Pete the court commented on the use of such evidence at para.
12 as follows:

[12]      In the case at bar,
counsel for the plaintiff/respondent submitted that the surgeon co-defendant
had, in his examination for discovery, blamed the hospital, by alleging that it
had not provided him with the proper equipment to perform the operation in
question.  Counsel said that he had been unable to place this evidence before
the chambers judge because of the operation of Rule 40 (27) (a) (incorporated
by Rule 18A (4)) which makes examination for discovery evidence admissible only
against the adverse party who was examined. In my view this constitutes too
narrow a view of the rule. Although, under the rule, evidence given on
examination for discovery cannot be admitted to prove or disprove a fact in
issue at trial save against that party, the rule does not prevent the evidence
being put forward to apprise the chambers judge of the existence of such
evidence in order to demonstrate that it would be unjust to decide the issues
on the Rule 18A application.

[40]        
In my view, it is appropriate that I rely on the plaintiff’s discovery evidence
for the purpose of determining if it would be unjust to decide the issues on a summary
application.  My decision is guided by the reasons given in Pete and the
fact that the evidence could have been properly before the court by the simple
act of the plaintiff setting it out in her affidavit.  The defendants submit
that, notwithstanding the opposing recollections of the plaintiff and the
defendant driver, there is sufficient independent evidence, not in dispute, to
permit summary disposition.

[41]        
The plaintiff submits that the issue of liability cannot be resolved
summarily.  She asserts that the court must assess her credibility and that of
the defendant particularly since she submits the defendant should have seen her
in time to stop.  The plaintiff argues:

a)    There is an
issue respecting whether or not the defendant was driving at an excessive speed
for the area;

b)    There is an
issue as to whether the position of the plaintiff placed her in the position of
the dominant driver;

c)     There is
an issue as to whether the defendant could have avoided the accident; and

d)    The evidence of
the plaintiff and her witness is contrary to that of the defendant driver.

Relevant Legal Principles

[42]        
The principles to be applied in determining whether a matter is suitable
for summary trial are well established.  A judge in chambers is to “give
judgment in any case where he can decide disputed questions of fact on
affidavits or by any of the other proceedings authorized by Rule 18A(5) unless
it would be unjust to decide the issues in such a way.”  (Inspiration
Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202,
at p. 212, 15 A.C.W.S. (3d) 420).  As noted by Taggart J.A., the fact that
affidavits conflict does not preclude a judge:

…from finding facts where he has before him affidavits
which conflict. The ability of the judge to find the necessary facts and to
decide if it is just to resolve the issues before him, will to a large extent,
depend on the nature and quality of the material before him.  I think the rule
contemplates that the judge may make the necessary findings of fact on
conflicting evidence.

(Placer Development Ltd. v. Skyline Explorations Ltd.
(1985), 67 B.C.L.R. 366 (B.C.C.A.), at p. 386).

[43]        
Similarly, in Inspiration McEachern, C.J.B.C. stated:

55 I do not agree … that a chambers judge is
obliged to remit a case to the trial list just because there are conflicting
affidavits.  In this connection I prefer the view expressed … in [Placer Development]. 
Subject to what I am about to say, a judge should not decide an issue of
fact or law solely on the basis of conflicting affidavits even if he prefers
one version to the other.  It may be however, notwithstanding sworn affidavit
evidence to the contrary, that other admissible evidence will make it possible
to find the facts necessary for judgment to be given.

[44]        
In MacMillan v. Kaiser Equipment Ltd., 2004 BCCA 270, Oppal J.
held the following at para. 22:

[22]      … A summary trial
almost invariably involves the resolution of credibility issues for it is only
in the rarest of cases that there will be a complete agreement on the
evidence.  The crucial question is whether the court is able to achieve a just
and fair result by proceeding summarily.

[45]        
In Lalli v. Lalli (1998), CarswellBC 2543, Holmes J. held at
paras. 26-30:

26 Conflicts in affidavit evidence raising
dispute as to facts will not inevitably vitiate a summary trial application for
judgment. Where conflict exists however it requires careful review by the court
of that conflict, in the context of all the evidence, to see if essential
findings of fact can be made, and if it is just to do so in the circumstances.

27 The circumstances where disputed facts
arising in affidavits may be resolved are limited. Mr. Justice Spencer in Reichold
Ltd. v. Van-City Cultured Marble Products Ltd., [1993] B.C.J. No. 2360, 22
November 1993, Vancouver Registry C930067, (B.C.S.C. [In Chambers]),
conveniently reviewed the law as to when conflicts arising on affidavit
evidence might properly be resolved in a summary proceeding.

28 He noted that in Bank of British Columbia
v. Anglo-American Cedar Products Limited (1984), 57 B.C.L.R. 350 at 352 the
following passage from Eng Mee Yong v. Letchumanan, [1980] A.C. 331 (Malaysia P.C.) was adopted with approval:

Although in the normal way it is not appropriate for a judge
to attempt to resolve conflicts of evidence on affidavit, this does not mean
that he is bound to accept uncritically, as raising a dispute of fact which
calls for further investigation, every
statement on an affidavit, however
equivocal, lacking in precision, inconsistent with undisputed
contemporary documents or other statements by the same deponent, or
inherently improbable in itself it may be. In making such an order on the
application as he "may think just" the judge is vested with a discretion
which he must exercise judicially. It is for him to determine in the first instance
whether statements contained in the affidavits which are relied upon as raising
a conflict of evidence upon a relevant fact have sufficient prima facie plausibility
to merit further investigation as to their truth.

[underlining not in original quotation; added for emphasis]

29 This view was further adopted in Placer
Developments Ltd. v. Skyline Explorations Ltd. (1985), 67 B.C.L.R. 366
(B.C.C.A.).

30 A summary
proceeding is an inappropriate forum for resolution of conflict on essential
facts where the only evidence from which the necessary findings of fact may be
drawn consist of conflicting affidavits and credibility must be decided without
the assistance of circumstantial factors. [See Jutt v. Doehring (1993),
82 B.C.L.R. (2d) 223 (B.C.C.A.)].

Application and
Analysis

[46]        
The plaintiff asserts that there is a dispute on important aspects of
credibility on critical issues and it is therefore not possible to find the
necessary facts in a summary trial.

[47]        
I am satisfied however that the necessary facts can be determined.  The
following evidence allows for a summary determination of the issue.

The Collision

[48]        
The plaintiff, on discovery, testified that she was proceeding east on
Sunset Street, a street she was familiar with as her dentist’s office is
located on it.  She described the street as follows:

Q.        Okay.  Do you recall how many lanes Sunset
Street had at the scene of the accident?

A.         Yes. There’s one
lane and then beside it there’s a parking lane and beside that are the parking
lines.

[49]        
It is clear from the evidence of the plaintiff that she viewed Sunset Street
as having one lane east and one lane west with an area on her right that was
not a driving lane and then next to that area the diagonal parking stalls.  It
is also established from the evidence that she is in error in that perception
and that Sunset Street actually has two lanes east bound and two lanes
west bound both with diagonal parking.  What she refers to as the “parking
area” is in fact a clearly delineated lane marked by a broken white line
between it and the inner centre lane.  This misperception becomes important when
considering the events that occurred.

[50]        
The plaintiff then described how her dentist’s office was on the other
side of the street, that is, on the westbound side.  She described what
occurred next as follows:

A.         I came driving
eastbound up Sunset.  I looked around for parking spots.  I like to park on the
other side of the street from where I did park, where there was the accident. 
I like to park on the side that is my dentist, but I saw all the spots were
taken, which happens.  And I say the only spot was in front of this flower
shop.  So I drove up.  The parking stall is at an angle, so I had to make a 135-degree
turn to nose into the parking stall.  So I put on my indicator.  I knew it
would be a two-part manoeuvre.  I drove into the parking stall partway and then
I backed up and then I had my foot on the accelerator.  I was now in line to go
into the parking stall completely.  I looked out my passenger window and saw a
big black car coming at me and I didn’t understand what was going on,
and I watched and he slammed into my passenger door. … [emphasis added]

[51]        
In my view, the reason the plaintiff did not understand what was going
on was because she did not realize that in fact there were two travel lanes
proceeding east.  I am also satisfied that because she was originally seeking to
park on the west side of the road she was near the centre lane and that in
changing her mind and deciding to park on the east side of the road she
necessarily had to turn from the centre lane across the lane closest to the
parking area.  In effecting such a turn, she would not expect any traffic to
her right given her view that there was only one travel lane and she was in it.

[52]        
The plaintiff and defendant’s evidence, along with the photographs of
the vehicles taken in the aftermath of the collision, indicate that the
plaintiff’s vehicle at the time of impact was turned in front of the left side
of the defendant’s vehicle at an angle.  The damages to the vehicles are inconsistent
with the plaintiff’s discovery evidence that she had turned her vehicle 135-degrees
in order to align it with the parking stall.  Rather, it is consistent with the
defendant’s evidence that the plaintiff’s vehicle had turned in front of him
across his lane.

[53]        
The defendant described the accident in this way:

11.       When I first turned onto Sunset
Street I had turned into the inside lane. I then immediately changed lanes into
the right lane. I was looking straight ahead. I was not in a hurry. While I
cannot remember how fast I was driving, I know I was not speeding.

12.       When I first saw the plaintiff’s
vehicle I was in the right lane and she was driving straight in the left lane.
She was a few car lengths ahead of me. She did not have her turn signal on. She
then made a fairly wide right hand turn directly in front of me. I immediately
hit my brakes but was unable to stop before colliding with her car.

13.       The plaintiffs
wide right hand turn was completely unexpected and without any warning
whatsoever.

[54]        
The plaintiff however has now filed an affidavit in response to the
defendant’s application in which she states:

8.         The damage to the Defendant’s vehicle is on the
left front of his vehicle which means my vehicle was not angled approximately
parallel to the parking space lines angled at approximately 135 degrees, rather
my vehicle was angled approximately 45 to 90 degrees from the eastbound direction.

9.         I disagree with the defendant’s statement that I
turned in front of him from the left lane and that I caused the accident by
doing so.  I know I had already pulled in to the parking space and backed out
before he struck my vehicle. I know that I was finished backing out and did not
back up into him as he approached.  Because of the time it took me to make
those manoeuvres of pulling in, backing out and starting forward again, which I
estimate was at least ten to fifteen seconds, the Defendant should have seen my
vehicle in plenty of time to avoid the accident if he was not speeding
excessively.

10.       The engineer’s report relied on by the defendant
and dated December 22, 2010, indicates my vehicle was moving forward from left
to right.  I do not disagree with that as I had already backed up and was then
starting to move forward.

[55]        
Two years after the collision, the plaintiff was examined for discovery.
Her evidence was carefully canvassed on discovery.  She was given ample
opportunity to explain, in her own words, what had occurred.  She was very
clear that she had attempted a 135-degree turn.

[56]        
It was not until the expert report was tendered in late 2010 that she
changed her evidence respecting what occurred.  She apparently did not seek to
clarify or correct her evidence after the discovery and prior to the report
being received.

[57]        
Further, she offers no reason for the change in her evidence.  The
plaintiff in her affidavit does not state that she recalls being aligned at 45
to 90 degrees; rather she relies on the damage to the defendant’s vehicle as
the basis for her new statement.  In other words, she is commenting on the
evidence but not stating the facts as recalled by her.  As a result, the court
is left with an unexplained change in evidence.  The plaintiff asserts that
this change in her evidence raises an issue of credibility that requires viva
voce evidence in order to fairly assess it and the evidence of the
defendant.  I do not agree.

[58]        
The readily apparent explanation is that her first version could not be
accurate given the damage to the defendant and her vehicle.  It can be inferred
that the plaintiff is attempting to explain her actions in order to conform
with the physical evidence.

[59]        
The plaintiff initially stated that she had attempted a 135-degree turn
but knew it would take a two-part manoeuvre.  She said on discovery that she
had completed the second manoeuvre and that placed her “in line to go into the
parking stall completely.”  The vehicle photographs show that the damage to her
vehicle commenced on the passenger side just at the front of the passenger door
and continued towards the back of her car.  It is also clear that the damage to
the defendant’s vehicle was restricted to the left front corner.  Had the
plaintiff’s explanation of being lined up with the parking stall been correct,
the damage would have been to the right front corner of the defendant’s
vehicle, not the left.  She does not dispute that her vehicle was moving
forward when struck and that as a result, her vehicle contacted the defendant’s
vehicle towards the front of her vehicle which then moved across the left
corner of the defendant’s vehicle.

[60]        
In her affidavit she does not deny that she was aligned with the parking
space but the inference is that she was not.  However, on her evidence, having
turned into the parking space and then having to back-up in order to move
forward into the space, it makes no sense that she would now be back at a 45 to
90-degree angle if her intention was to park.  Presumably, in backing up she
would have sought to direct the rear of her vehicle in the opposite direction
in order to pull forward in-line with the parking spot.  To have pulled
forward, as she states, would not have aligned her with the parking space.  On
her second explanation, her alleged position when pulling forward was
consistent with the physical evidence and the evidence of the defendant driver
that with no warning the plaintiff made the turn across his lane immediately in
front of him.  He deposes that he was not speeding.  The damage shown in the
photographs is not extensive.

[61]        
The plaintiff’s initial explanation, as stated on discovery, was that
she turned from an inside lane, directly over another lane; this was an illegal
action and a danger to other users.  It was not a simple lane change.  Her
vehicle clearly passed at an angle in front of the defendant driver’s vehicle.

[62]        
The plaintiff also states in her affidavit that on examination for
discovery she “described precisely how the accident occurred.”  However, as
noted earlier, she now states she was not angled at 135-degrees.  Nowhere does
she deny being aligned with the parking spot.

[63]        
Also significant is the defendant’s observation that after the
collision, the plaintiff continued to park her car in the parking spot and that
she then took her daughter to a dentist appointment before returning to
exchange her information with him.  He states as well that the plaintiff did
not get out of her car until she finished parking.

[64]        
The plaintiff does not respond to this portion of the defendant driver’s
affidavit.  (I note that on her inadmissible discovery evidence she does
dispute this).  If she disputed that she then parked, she was obligated to say
so on this application.  Consequently, the evidence is that she did complete
her parking manoeuvre.  Given her revised evidence, she would not have been at
an angle that would permit her to complete the parking manoeuvre as she still
would not have been properly aligned.

[65]        
The plaintiff also states that she had already pulled into the parking
space and backed out before the defendant driver’s vehicle struck her car.  She
asserts that backing up and then pulling forward took at least ten to fifteen
seconds and that therefore the defendant should have seen her in time.  That
estimate of time is not credible given the accident occurred within 7 to 8
parking stalls of the corner and the defendant stated that she was ahead of him
and he had time to enter Sunset Street and change lanes.  I do not accept that
she had the time to pull into the parking space, back up and pull forward once
again as both the plaintiff and the defendant were proceeding in the same
direction with the defendant behind and to the plaintiff’s right.

[66]        
The evidence of the plaintiff’s witness is that the defendant driver turned
about a second before him onto the street ahead of him and as the witness came
up behind him he saw the plaintiff “parking.”  He provides no details.  He
states that he witnessed the accident yet then states that he was certain the
plaintiff was not making a wide turn from the left lane but then contradicts
that in the next paragraph where he states he did not see if she turned from
the left lane.  He does confirm she was crossing the outside lane.

[67]        
The witness came around the corner after the defendant had changed
lanes.  His affidavit fails to make clear precisely what he did in fact see.  At
best, once he was around the corner and behind the defendant, he witnessed the
plaintiff crossing their lane.  Presumably, if he had more to say counsel would
have included it in his affidavit.  Likewise, if he saw the actual accident an
affidavit drafted by counsel would have said so.

[68]        
It appears, at least in part, that the plaintiff’s assertion that
credibility issues arise is self-created.  That is, she has put her own
credibility in issue by making inconsistent assertions.

[69]        
The plaintiff is correct in saying that if this matter were to proceed to
a full trial or if the plaintiff were cross-examined on her affidavit, she could
explain why she has changed her evidence.  However, that should have been done in
the material filed in response to this application.

[70]        
Further, in my view, the issue of credibility is not determinative of
the appropriateness of summary disposition if other evidence is available that
enables the court to find the necessary facts.  (Orangeville Raceway Ltd. v.
Wood Gundy Inc. (1995), 6 B.C.L.R. (3d) 391).  The physical evidence here is
of importance, and is more consistent with the evidence of the defendant driver
than it is with the evidence of the plaintiff.  There is no evidence indicating
that the defendant driver was doing anything other than proceeding in the
outside lane and saw her in the inside lane to his left.  The next thing he
knew, she was turning across his lane.  That is entirely consistent with the
physical damage to the vehicles.

[71]        
The only issue then becomes whether the defendant should have been aware
of her turn and whether it has been established that he could have and failed
to take the actions necessary to avoid the collision.  The plaintiff bears the
burden of establishing this fact.

[72]        
The plaintiff was proceeding on the inside lane of a four-lane road.  Two
lanes were on her side of the yellow centre line, and were in turn divided by a
broken white line.  She attempted to park in a diagonal space on her side of
the road despite the fact that such a manoeuvre would require that she reverse
her direction of travel into oncoming traffic.  That action placed on her a
high degree of care (Dickie Estate v. Dickie (1991), A.C.W.S. (3d) 1018
(B.C.C.A.)).

[73]        
The Motor Vehicle Act, 1996 R.S.B.C., c. 318 (the “Act”) provides
as follows:

144(1) A person must not drive a motor vehicle on a
highway

(a)        without due care and attention,

(b)        without reasonable
consideration for other persons using the highway, or

(c)        at a speed that is excessive
relative to the road, traffic, visibility or weather conditions.

151 A driver who is driving a vehicle on a laned
roadway

(a)        must not drive it from one lane to another when a
broken line only exists between the lanes, unless the driver has ascertained
that the movement can be made with safety and will in no way affect the travel
of another vehicle,

(c)        must not drive it from one lane to another
without first signalling his or her intention to do so by hand and arm or
approved mechanical device in the matter prescribed by sections 171 and 172,

168 Except as provided by the bylaws of a
municipality or the laws of a treaty first nation, a driver must not turn a
vehicle so as to proceed in the opposite direction

(a)        unless the driver can do so
without interfering with other traffic, or,

(b)        when he or she is driving

(v)        in a business district,
except at an intersection where no traffic control signal has been erected.

[74]        
Section 15 of the City of Burnaby Bylaw No. 4299 (the “Bylaw”)
states:

15.       Upon those streets
which have been marked or signed for angle parking by appropriate traffic
control devices, the driver of a vehicle shall park such vehicle at an angle
and in such manner that it is headed substantially in the general direction of
the movement of traffic on the side of the street on which such vehicle is
parked,

[75]        
The physical evidence does not support her assertion that she had pulled
in and then pulled back to align her car.  In her first version, her alignment
could not have been as she asserted.  In her second version, I cannot accept
that she would have backed up in the manner stated since that would not have
aligned her more closely with the parking space.  Even if I accepted her second
version, the damage to her vehicle indicates that she was pulling across the
path of the defendant’s vehicle given they connected just at the front of the
passenger door.

[76]        
Her assertion that the defendant was 4 to 5 parking spaces away when she
saw him (by which time she was moving into his lane) indicates that the
defendant would have minimal time to attempt to stop.

[77]        
As noted earlier, the defendant turned left onto Sunset Street.  He
turned into the inside lane closest to the yellow centre line and immediately
changed lanes into the right lane nearest the parking stalls.  The distance
from the corner to the accident location is no more than approximately 7 to 8
parking stalls.  Clearly this whole sequence of events unfolded over mere
seconds.

[78]        
The damage to the vehicles is only consistent with the plaintiff turning
right from the inside lane on Sunset Street across the path of the defendant. 
In doing so, the plaintiff was acting contrary to the Act and the Bylaw. 
The defendant had the right of way and was entitled to proceed on the
assumption that other drivers would respect that right of way.  The effect of
s. 151(a) is to make the plaintiff the servient driver.  The fact that she was
in breach of the Act does not determine that she was negligent.  (Dickie
Estate).  However, when she violated the Act and the Bylaw,
her duty of care increased.  (Hadden v. Lynch, 2008 BCSC 295).

[79]        
Given the plaintiff thought she was in the only lane of Sunset Street, I
am satisfied that she would not have been concerned about turning across the
defendant’s lane: she did not believe it existed as a lane of travel.  As a
result, her manoeuvre, even if I accept she signalled, was undertaken without adequate
warning to the defendant driver.

[80]        
The plaintiff seeks to place some responsibility on the defendant
driver.  The onus to do so rests on the plaintiff.  The plaintiff must
establish that as a reasonably careful and skilful driver the defendant driver,
after becoming aware of her presence in his lane, had sufficient opportunity to
avoid the accident.  (Walker v. Brownlee and Harmon (1952), 2 D.L.R. 450;
Ferguson v. All-Can Express Ltd. & other, 2001 BCCA 57).

[81]        
In Tucker (Guardian Ad Litem of) v. Asleson et al (1993), 102
D.L.R. (4th) 518, at p. 554, 78 B.C.L.R. (2d) 173 (C.A.) Southin J.A. refers to
certain principles enunciated by the Supreme Court of Canada, in which the
court quoted Cartright J. in Walker as follows:

While the decision of every motor vehicle collision case
must depend on its particular facts, I am of opinion that when A, the driver in
the servient position, proceeds through an intersection in complete disregard
of his statutory duty to yield the right-of-way and a collision results, if he
seeks to cast any portion of the blame upon B, the driver having the
right-of-way, A must establish that after B became aware, or by the exercise of
reasonable care should have become aware, of A’s disregard of the law B had in
fact a sufficient opportunity to avoid the accident of which a reasonably
careful and skilful driver would have availed himself; and I do not think that
in such circumstances any doubts should be resolved in favour of A, whose
unlawful conduct was fons et origio mali.

[82]        
The plaintiff’s onus must be met by reliable evidence relating to time,
distance and speed.  In Haase v. Pedro (1970), 21 B.C.L.R. (2d) 273, cited
in Tucker at p. 558 , the court stated that a party must establish
by:

…definitive evidence and on the balance of probabilities
that the [defendant] had time, distance and opportunity to take effective
measures to counteract the effect of his, the [plaintiff]’s negligence.

[83]        
The evidence of the defendant is that the plaintiff turned across his
lane without signalling her intentions.  The plaintiff’s assertion that she
first saw the defendant when he was 4 to 5 parking spaces away is consistent
with the defendant’s evidence that the turn was made immediately in front of
him.  The defendant states he was not speeding.  The speed limit was 50 km per
hour.  The distance involved on the evidence of the plaintiff was limited.  The
resulting time available to the defendant to react was also limited.  That
reaction time is to be judged by the “the standards of normal persons and not
by applying the standards of perfection” (Tucker at p. 554).

[84]        
The actions of the plaintiff would not be anticipated by a reasonable person. 
Her conduct was so out of the norm that the defendant would have no reason to
anticipate her attempt to park by crossing over his lane of travel.  There was
no evidence that such a manoeuvre was common practice.  At best, had she
signalled, the expectation of a reasonably competent driver would be that she
was signalling a lane change.  As required by s. 151 of the Act, the
plaintiff had the obligation to ensure that her movement towards the parking
space could be completed safely and not affect the travel of the defendant
driver.

[85]        
The plaintiff has failed to establish that the defendant had the time,
distance or opportunity to react and avoid the plaintiff.  The evidence of the
defendant is consistent with the physical evidence; that of the plaintiff on
either of her versions is not.  As noted in Haase, any doubts are to be
resolved in favour of the defendant.

[86]        
For these reasons I am satisfied that the necessary findings of fact can
be made in this summary application and that it is not unjust to do so.  I am
satisfied that the plaintiff was solely responsible for the accident and that
no liability rests with the defendant.  The plaintiff’s claim is dismissed.

Costs

[87]        
Counsel requested the opportunity to address the issue of costs.  They
shall have liberty to make written submissions on costs.

“Punnett
J.”