IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121023

Docket: M116089

Registry:
New Westminster

Between:

Jason Michael
Currie

Plaintiff

And

Karen Lorraine
Taylor and

Daniel Allan Sharp

Defendants

Before:
The Honourable Mr. Justice Armstrong

Reasons for Judgment

Introduction

[1]            
In the early evening of June 23, 2008 the plaintiff Erin McRoy (formerly
known as Jason Michael Currie) was driving a yellow and white taxi (“the Taxi”)
en route to the City of Vernon when he attempted to turn left onto Highway 97
at the intersection with Meadowlark Road (“the Intersection”). At the same time,
the defendant Allan Sharp was driving a delivery van (“the Van”) owned by the
defendant Karen Lorraine Taylor northbound on Highway 97 approaching the Intersection.
The Taxi crossed over a portion of Highway 97 with the intention of turning
left into the southbound lane when the Van collided with the driver’s side of
the Taxi in the northbound left/center lane. The impact caused enormous damage
to both vehicles and the plaintiff was seriously injured. The issue to be
resolved in this trial is to what degree, if any, the accident was caused by the
negligence of the defendant Sharp.

Evidence

[2]            
The uncontroverted evidence is that the plaintiff had delivered a
customer to an address on Pleasant Valley Road approximately 2 to 3 blocks from
the Intersection. He drove to the Intersection and stopped behind the stop line.
The Taxi was a bright yellow 1998 Oldsmobile; there was no evidence that the
mechanical condition of either party’s vehicles were a factor in the collision.
The Van was a white 1997 Mazda MPV.

[3]            
The posted speed limit on Highway 97 was 90 km/h at the Intersection. The
weather was not a factor in the collision and there were no aspects of the road
conditions that contributed to the accident.

[4]            
Highway 97 at the Intersection is composed of two lanes northbound, two lanes
southbound, and a single lane providing left turn access to Meadowlark Road
from both directions.

The Plaintiff

[5]            
The plaintiff was a 36 year old owner/operator with Vernon Taxi and was
driving the Taxi at the time of the June 8, 2008 collision. He had owned the Taxi
for one year before the accident.

[6]            
The plaintiff had a class four driver’s license entitling him to drive taxis
and small buses. At the time of the accident he suffered from sleep apnea,
schizophrenia, and diabetes. The plaintiff was taking antipsychotic
medications, antidepressant medications and had a prescription for diabetes.
Although the plaintiff was aware that these medications caused side effects,
there was no evidence that those drugs were a factor in the collision. The
plaintiff had been treated for fatigue in May 2008 but denied experiencing any
fatigue on the date of the accident.

[7]            
The plaintiff testified that until October 2009, he had no memory or
recollection of the events relating to this accident. He described an
extraordinary event when he suddenly recovered his memory of the events
immediately preceding the accident. He was not entirely sure when the memory
returned. He denied being told about any of the accident details before his
memory retuned. He specifically denied prior knowledge of the police analysis
of the accident and he denied conversations with others before recovering his memory
about the details of the accident. However, at his examination for discovery he
testified that his wife had read the analyst report and spoken with him about
the incident before he recovered his memory. Nevertheless, he denied that his
recovered memory originated from conversations with others; he insisted that he
spontaneously achieved recall of the events prior to the collision.

[8]            
The plaintiff testified that he was very familiar with the Intersection
and with the traffic customarily found on Highway 97 in that area. He said that
after dropping his last customer at a nearby trailer park he drove onto
Meadowlark Road and came to a stop behind the stop line and stop sign at the Intersection.

[9]            
The stop line is set back about 5.35 m from the edge of Highway 97.

[10]        
He said he pulled up to the stop line at the Intersection, looked in
both directions, fastened his seatbelt, and looked again to his left to check
the state of oncoming traffic. He said he saw a white semitrailer truck some
distance down the road in the outside lane; he thought the way was clear to
commence crossing Highway 97 and complete his turn toward Vernon.

[11]        
He believed he was at the stop line for about 15 seconds; he checked
both directions, and being satisfied that the way was clear he began a steady
acceleration from the stop line.

[12]        
Initially, he said that the semitrailer was 200 yards from the Intersection
when he first saw it; he subsequently adjusted that estimate to between 100 m –
200 m from him. He said when the semitrailer was 100 m away he had plenty of
time to cross the road without incident. He said he travelled from the stop
line at a normal pace and might have stopped his vehicle before entering into
the slow lane northbound.

[13]        
In cross-examination, he altered his evidence and said he saw the
semitrailer truck “perhaps 50 metres away” from him at the Intersection and before
the impact.

[14]        
The plaintiff had intended to travel across the northbound lanes and
stop in the Highway 97 left turn lane to be sure he could safely enter the
southbound lane.

[15]        
Although he was confident that the northbound lanes of Highway 97 were
sufficiently clear to enable him to make his turn safely, it appears that he
did not see the Van. As he proceeded he was not focused on traffic coming from
his left and did not see the Van at any time until immediately before impact

[16]        
The plaintiff believed that he saw the grill of the Van approximately a half
second before he was hit. He said the nose of his car was entering into the
left lane when he saw the grill of the Van right in front of him. He had a
recollection of trying to accelerate. He could not explain why he did not see
the Van then coming towards him. The plaintiff speculated that his vision of
the Van was obscured by the semitrailer truck. I do not accept that evidence
based on the reports from the other witnesses who testified at the trial.

[17]        
The plaintiff’s evidence must be weighed carefully because of the
unusual delay in his recovered memory about the collision. It is clear that he gave
some evidence at trial that conflicted with his discovery evidence. It appears
obvious that he had discussions with others about the accident before he
recovered his memory in 2009. He acknowledged that his wife had relayed to him parts
of the traffic analysis report. He also spoke to his family and a person named
Joe about the accident before his memory returned.

[18]        
In the final analysis of his evidence, there is little controversy about
his pre-accident actions. It is my view that his evidence about the distance
between the Intersection and the semitrailer truck, which he says was between
50 m and 200 m, is quite unreliable. I do accept that he did not see the Van
until immediately before impact.

Evan Weber

[19]        
Evan Weber, a 20 year old hospitality host and bartender, was driving to
work when he witnessed the accident. He drove from his home to the Intersection
where he observed the plaintiff stopped at the stop sign for quite some time.
He noticed the driver to be waiting, apparently looking for a break in the
traffic. Mr. Weber concluded that the plaintiff missed two opportunities to
begin his turn onto Highway 97.

[20]        
He said that drivers intending to enter Highway 97 need to be patient
because the traffic is often heavy at that location. He noted that Highway 97
has two lanes running north and two lanes south with a turning lane for each
direction.

[21]        
He observed that the plaintiff was doing something while waiting at the Intersection.
Mr. Webber concluded that the plaintiff was either talking to someone or doing
some other activity because he observed the plaintiff’s face turned in one
direction and observed the plaintiff’s hands moving in a manner inconsistent
with the intention of driving.

[22]        
Mr. Webber came to a stop behind the Taxi and observed a semitrailer
truck and the Van travelling northbound on Highway 97. The Van was in the fast lane
and the semitrailer truck in the slow lane. Mr. Weber’s view of the Van and the
semitrailer truck heading toward the Intersection was clear and unobstructed.

[23]        
He estimated that the vehicles were approximately ten seconds away
although he could not estimate the distance when first questioned.

[24]        
Mr. Webber noticed that the Taxi left the Intersection and travelled
across the slow lane and the fast lane. He believed the plaintiff stopped
before the Taxi had vacated the fast lane. Mr. Webber said that the front end
of the Taxi was in the turning lane while the back end was still in the fast lane.
He believed that the majority of plaintiff’s vehicle was in the fast lane.

[25]        
Mr. Webber concluded that the Taxi had sufficient time to safely cross
the northbound lanes when he pulled away from the stop sign. He did not
accelerate quickly across the road. Mr. Weber described him as moving casually
before he stopped in the turning lane.

[26]        
The semitrailer truck was travelling in the slow lane and was
approximately a half car length behind the rear of the Van when the impact
occurred. He said that the Van could have avoided the collision because the
right lane was clear.

[27]        
Mr. Weber was of the view that the plaintiff’s decision to leave the Intersection
was, at the time, a reasonably prudent decision and that, although it was a
close call, he believed the Van could have avoided the impact.

[28]        
He also said that approximately 10 to 12 seconds passed between the time
the plaintiff commenced his movement into the Intersection, stopped, and the
impact occurred. He gave the clear impression that the Taxi had been stopped while
straddling the fast lane and turning lane for some seconds. There was no
obvious reason that the Taxi could not have proceeded fully into the turning lane.

[29]        
Mr. Weber acknowledged that it is common for vehicles to exceed the
speed limit on Highway 97 travelling at 100 km/h and more. Speed of the
oncoming traffic is uppermost in the mind of drivers entering the Intersection.
It requires a great deal of attention.

[30]        
He confirmed that the road is flat and straight for approximately one km
south of the point of impact, that there was nothing to obscure the defendant
Sharp’s vision of the plaintiff, and that it was common for vehicles to exceed
the speed limit on Highway 97 in the vicinity of the accident.

[31]        
He noted that on the photograph marked exhibit 1, a mark where he first
saw the defendant Sharp and the semitrailer. Mr. Webber did not recall whether
the Van was overtaking the semitrailer.

[32]        
He said he would have made the same turn if the Van had been south of
the point that he marked “X” on the photograph being the point where it would
have been imprudent for the Taxi to move. He said that if the Van had been
within that distance he would not have made the turn.

[33]        
He confirmed that there was considerable distance between the stop line
and the fog line for traffic entering Highway 97 from the Intersection. He said
that motorists ordinarily will creep out beyond the stop line to the fog line
in an effort to gain a better vantage point of the oncoming traffic. He noted
that before the Taxi pulled out, another vehicle passed through the Intersection.
This may have been another semitrailer but not the semitrailer truck he saw behind
the Van prior to the collision.

Ian Tuckey

[34]        
Mr. Tuckey, 47, is a professional truck driver who was travelling on
Highway 97 at the Intersection on the night of the accident. He was driving a
white Kenworth tractor-trailer in the right lane of Highway 97 approaching the Intersection.
Mr. Tuckey observed that the highway weigh scales were located between the
two east and west bound lanes of Highway 97; the weigh scale area begins
approximately one km south of the Intersection.

[35]        
He estimated that the return lane from the weigh scales merges at
approximately 300 m from the Intersection but this distance appears, on Exhibit
1, to be more likely 500 m (the merge point). As he neared the weigh scales,
Mr. Tuckey had slowed due to the possibility he might have been required to
stop at the scales but soon realized the scales were closed and he accelerated.
The Van started to overtake the Tuckey semitrailer near the weigh scales and
completed its pass of the semitrailer near the merge point. Mr. Tuckey was
travelling at just less than 90 km/h and he accelerated up to 95 km/h by the
time he passed the merge point.

[36]        
From the merge point to the Intersection and the collision the defendant
Sharp moved further ahead of Mr. Tuckey and the gap between them had increased
to between 115 m – 175 m. Mr. Tuckey saw the Taxi stopped at the Intersection
when he was 150 m – 200 m from the Intersection. He estimated that the defendant
Sharp was 50 m – 100 m from the Intersection when the Taxi moved out into
the roadway.

[37]        
As Mr. Tuckey saw the Taxi move from the stop line at the Intersection, it
appeared to him that the Van should have been moving into the right lane but
that was not happening. He could not see any reason the Van did not move to the
right lane. He said an accident started to appear imminent and two seconds
later the collision occurred. He acknowledged that there was nothing that would
have precluded the defendant Sharp from moving into the right lane and no brake
lights appeared on the Van before impact.

[38]        
Initially, Mr. Tuckey said he was about 250 m from the impact when the
collision occurred; he subsequently revised his estimate of the distance
between his vehicle and the point of the collision to 115 m. He also said that
when the Taxi moved towards the highway, the Van was 50 m -100 m from the Intersection.

[39]        
Where Mr. Tuckey’s evidence of the gap between his truck and the
intersection at the time of impact conflicts with Mr. Webber’s view, I accept
that Mr. Tuckey’s recollection is more reliable. Mr. Tuckey’s description of
the events preceding the collision were more consistent with the evidence than
Mr. Webber’s perceptions.

[40]        
Mr. Tuckey described the rate of speed of the Taxi moving from the stop
line as a “brisk walk”. The clear impression Mr. Tuckey relayed was that the
plaintiff did not travel quickly across the highway and that there was sufficient
time and opportunity for the defendant Sharp to change lanes before reaching
the Intersection.

The Defendant Sharp

[41]        
The defendant Sharp did not testify but the plaintiff read into evidence
extensive portions of the defendant Sharp’s evidence from his examinations for
discovery.

[42]        
The defendant Sharp was a 49-year-old delivery driver and was involved
in the collision. On June 23, 2008 he was driving the Van on Highway 97. He said
he had awakened at five o’clock in the morning on the day of the accident and at
the time of the accident he was returning from his day of work. He was familiar
with Highway 97 in the vicinity of the Intersection.

[43]        
He described Highway 97 at the Intersection as composed of four lanes; two
northbound and two southbound lanes with an additional turning lane for
southbound traffic. Highway 97 at and before the Intersection is flat and
straight with a speed limit of 90 km/h. He confirmed that the there was a stop
sign for vehicles on Meadowlark road turning north or south.

[44]        
He described the weather at the time of the accident as overcast and
gray; the sun was still up, but not bright.

[45]        
He saw Mr. Tuckey driving north on Highway 97 in the fast lane. He described
seeing the bright yellow Taxi at the stop sign at Meadowlark.

[46]        
He travelled down the highway and observed a transport truck pulling a
trailer ahead of him. He passed the semitrailer truck 1 km from the
Intersection.

[47]        
At his examination for discovery on August 31, 2010 the defendant Sharp
said:

201      Q         When
you had come to the front of that semitrailer

 truck,
when you were doing your pass, what was the

 distance
from Meadowlark Road?

A          A kilometer.

202      Q         Was the taxi
coming up to the stop line at that time?

A          Yes.

203      Q         So your
visibility was a kilometer?

A          Yes.

205      Q         Did you keep
your eye on that taxi?

A          Yes.

213      Q         How fast was that
taxi, did it leave the stop line?

A          It just went out slowly.

217      Q         And
the yellow taxi just gradually pulled out in front of

 you
– – through the slow lane, if I can use that?

A          Yes.

218      Q         Across
the fast lane to the point of impact, is that what

 you’re
saying?

A          Yes.

219      Q         It didn’t do a
jackrabbit start?

A          No.

220      Q         Okay. Just a normal,
everyday driving from a

 stop sign?

A          Yes.

223      Q         Is that safe to say?
How much time passed between

 the time it
pulled away, when I say “it”, I mean the

 yellow taxi,
from that stop sign till impact?

A          Oh, probably 10 seconds.

224      Q         Okay. So in that 10
seconds, what evasive action did

 you do, if
anything?

A          That’s what I said, I just
took my foot off the gas, didn’t

 have the time to put on
the brake.

225      Q         You had 10
seconds, though, correct?

A          That was 10 seconds when
I seen him leave.

227      Q         So 10 seconds from
impact you took your foot off the

 gas, is that
what you’re telling me?

A          No.

228      Q         What is your evidence,
then? How many seconds from

 impacted you
take your foot off the gas?

A          I seen
the taxi come out, in 10 seconds, in that 10

 second span, I took my
foot off the gas and bang all of

 a sudden.

[48]        
The defendant Sharp’s evidence is confusing. He saw the Taxi moving away
from the stop line but he did not take any evasive steps during the 10 seconds
the Taxi was travelling across Highway 97. He looked into his rear view mirror
but he had no time to avoid the accident. He confirmed that his vehicle did not
decelerate significantly when he took his foot off the brake before impact;
there was no reason that he could not have gone into the right lane before
reaching the Intersection.

[49]        
Later in that examination for discovery the defendant Sharp was asked:

319      Q         Did you see the
yellow taxi continually from the time it

 left the stop
line until the point of impact?

A          No.

320      Q         Where were you
looking?

A          I was looking straight
ahead.

325      Q         Okay. And you don’t
know, in that hundred metres you

 lost sight of
the yellow taxi?

A          No, I —

326      Q         I’m sorry, your
answer?

A          No, I–

327      Q         You don’t–

A          — didn’t see the taxi
from there to the impact.

328      Q         For the hundred metres
before impact, you didn’t see

 the
taxi that was in the intersection – –

A          No.

329      Q         — that must’ve travelled
into the intersection, correct?

A          No. Correct.

330      Q         Any explanation as
to why not? It was there to be seen,

 wasn’t
it?

A          Yes

331      Q         Why didn’t you
see it?

A          Because I was looking
straight ahead, and I was going

 to
look in my rear view mirror for a quick second to see

 if I could get over into the
slow lane.

…

360      Q         If I understand you
correctly in your evidence is that

 you
sort of lost track of this taxi for a time period?

A          Yes.

 361      Q         From
the stop line until the point – virtually the point

 of
impact, you lost sight of it?

 A          Yes.

[50]        
In this second part of his discovery the defendant Sharp provides a contradictory
version of the facts in that he did not see the plaintiff cross the slow lane
nor could he brake, turn or take any evasive action. He appears to have lost
sight of the Taxi from the point that it left the stop line until impact. This
evidence is not consistent with his statement that he watched the Van leave the
stop line and move into the Intersection.

[51]        
Mr. Sharp’s evidence that he saw the Taxi move from the stop line and
travel into the Intersection was clearly stated, albeit at odds with the second
description of the event. Mr. Sharp did not testify and accordingly, I accept
the evidence that he observed the Taxi over several seconds before the impact
and that he watched it move away from the stop line and into the Highway. Mr.
Sharp’s evidence that he watched the Taxi for 10 seconds is inconsistent with
the expert evidence that follows.

Dr. Amrit Toor

[52]        
Dr. Toor was qualified to give opinion evidence in the field of
mechanical engineering and accident reconstruction. He provided three written
reports. His findings include the following:

·      
under normal daylight conditions persons at the 50th percentile
would detect and identify a hazard on the road within 1.1 s of its appearance.

·      
making a decision and implementing a decision in response to a
hazard takes up to 0.7 s.

·      
the impact speed of the Van was estimated at 135 km/h falling
within the range of 130 – 138 km/h.

·      
the impact speed of the Taxi was estimated at 24 km/h within a
range of 22 km/h – 26 km/h.

·      
between 3.6 s – 4.2 s elapsed from the moment the plaintiff left
the stop line to the point of impact.

·      
when the plaintiff left the stop line the Van was 146 m from the
point of impact.

·      
the collision would have been avoided if the Taxi had travelled
an additional 4.5 m taking about 0.6 s – 2.7 s.

·      
if the Van had been delayed by 0.6 s – .0.7 s the collision would
not have occurred.

·      
if the Van had been travelling between 90 km/h – 110 km/h the Taxi
would have cleared the Van by 8 m – 33 m.

·      
a report by Sgt. Nightingale overestimated the coefficient of
friction and underestimated the post impact deceleration and impact speed of
the Van.

Sergeant Nightingale

[53]        
Sgt. Nightingale is a 30 year member of the RCMP who was a qualified traffic
analyst. He has been qualified to give expert evidence in accident
reconstruction many times since 1994. He was in charge of the RCMP accident
reconstruction division for southeast region of British Columbia.

[54]        
Sgt. Nightingale’s perspective on this investigation was driven by his
role to investigate criminal aspects of an accident scene. He mentioned this
focus when describing his analysis and conclusions as to in his assessment of the
defendant Sharp’s minimum speeds.

[55]        
Sgt. Nightingale instructed Constable Steve Lamirante (an RCMP collision
analyst at the time) to attend the accident scene on June 24, 2008. Constable
Lamirante went to the Intersection and took
photographs and measurements of the accident scene. On July 3, 2008, Sgt.
Nightingale visited the scene and returned at a quieter time on July 6, 2008 to
complete a technical survey including measurements of the Intersection and
accident scene.

[56]        
In Sgt. Nightingale’s opinion the Van contributed 90% of the force for
post impact travel of the motor vehicles.

[57]        
Sgt. Nightingale’s opinion included the following:

·      
the pre-impact speed of the Van was 119 km/h (33.16 m/s).

·      
the pre-impact speed of the Taxi was 26 km/h (7.33 m/s).

·      
the average reaction time before a driver recognizes a hazard is 0.75
s and the time required to initiate a response to the hazard is 0.75 s.

·      
the stopping distance after a driver has reacted when travelling
at 119 km/h will require 75.76 m.

·      
if travelling at a speed of 119 km/h the cumulative distance for
the defendant Sharp to stop would have been 125 m. This would not likely have
been sufficient to avoid the collision but would have drastically reduced the
magnitude of impact.

·      
if the defendant Sharp had been travelling at 90 km/h when the
plaintiff became a hazard then he would have required 80.5 m to stop and the
collision would not have occurred.

Analysis

[58]        
The assessment of liability in this case engages a consideration of the
parties rights of way, the Motor Vehicle Act, R.S.B.C. 1996, c. 318 (”MVA”),
the Negligence Act, R.S.B.C. 1996, c. 333 and the common law.

Right of Way

[59]        
The MVA sets out the statutory rights and obligations of drivers intending
to enter highways from sides streets controlled by stop signs. The first task in
this case is to determine which of the two vehicles possessed the right of way
at the time the Taxi moved from the stop line.

[60]        
Section 186 of the MVA places a duty on drivers to stop at stop
signs:

186 Except
when a peace officer directs otherwise, if there is a stop sign at an intersection,
a driver of a vehicle must stop

(a)        at the marked stop line,
if any,

(b)        before entering the
marked crosswalk on the near side of the intersection, or

(c)        when there is neither a marked crosswalk nor a
stop line, before entering the intersection, at the point nearest the
intersecting highway from which the driver has a view of approaching traffic on
the intersecting highway.

[61]        
A driver intending to enter a highway from a side road is governed by s.175
of the MVA after stopping in accordance with s. 186:

175 (1) If a
vehicle that is about to enter a through highway has stopped in compliance with
section 186,

(a)        the driver of the
vehicle must yield the right of way to traffic that has entered the intersection
on the through highway or is approaching so closely on it that it constitutes
an immediate hazard, and

(b)        having yielded, the
driver may proceed with caution.

(2)            If a vehicle is entering a through highway
in compliance with subsection (1), traffic approaching the intersection on the
highway must yield the right of way to the entering vehicle while it is
proceeding into or across the highway.

[62]        
The driver with the right of way is described as the dominant driver and
the driver required to yield the right of way is called the servient driver.

[63]        
Cars entering through highways from side streets are frequently faced
with the prospect of collisions with vehicles on intersecting through streets
when neither has yielded the right of way. The issue in these scenarios is
whether the through travelling vehicle was so close to the intersection as to constitute
a hazard after the other vehicle has stopped in compliance with s. 186; that is
whether the oncoming vehicle is so close to the intersection that there is a
risk of colliding with the vehicle emerging from the side street into its path.

[64]        
The MVA requires drivers entering the intersection to stop at the
stop line and proceed from the stop line in compliance with s. 175. The MVA
regulates these vehicle movements but does not obviate the common law duty of every
driver to exercise due care for others using the roads. It is clear that the
driver emerging onto the highway has the initial responsibility to assess
whether the oncoming vehicle is an immediate hazard.

[65]        
The leading authorities that inform the Court on liability assessment in
these kinds of collisions are: Keen v. Stene (1964), 44 D.L.R.
(2d) 350 (B.C.C.A.); Raie v. Thorpe (1963), 43 W.W.R. 405
(B.C.C.A.); and, Walker v. Brownlee and Harmon, [1952] 2 D.L.R. 450
(S.C.C.). The principles include the following:

a)    a
vehicle is an immediate hazard in circumstances where the oncoming driver is
required to take a sudden or violent action to avoid threat of the collision if
the servient driver fails to yield the right-of-way: Raie at 406.

b)    it
is the movement of the servient vehicle into the through street in the absence
of an immediate hazard that gives it the right-of-way, rather than its mere
presence at the stop sign; Keen at 360.

c)     consideration
is given to the interval of time elapsing to allow a careful oncoming driver to
realize that the servient driver is making an entry resulting in the danger of
collision; Keen at 360.

d)    the
hazard is immediate if a reasonable danger of such future collision may be
apprehended at the time of the proposed entry by the servient driver; Keen at
364 and Raie at 405.

e)    if
the dominant driver has become aware, or should become aware that the servient
driver has entered the intersection in disregard of the law, then a duty arises
to take sufficient steps to avoid the accident was; Keen at 367.

[66]        
In Keen, Mr. Justice Davey adopted the following definition
of “immediate hazard” at 359:

[A]n approaching car is an immediate hazard if the
circumstances are such as to require the driver of that car to take some sudden
or violent action to avoid threat of a collision if the servient driver fails
to yield the right-of-way. …

[67]        
Mr. Justice Harris (as he then was ) in Knight v. Li, 2011 BCSC
184 said:

[12] Note that it is the action required of the servient
driver to avoid the threat of collision – and not to avoid the collision
itself – which is relevant to assessing whether the dominant driver constituted
an immediate hazard.

[68]        
The observations of Davey J.A. at 359 are pertinent to the facts of this
claim:

…"Speed and distance generally determine what
constitutes an immediate hazard", or as it was put by Cannon J., in Swartz
Bros. Ltd. v. Wills, [1935] 3 D.L.R. 277 at 279, [1935] S.C.R. 628 at p. 632:
"…distances must be translated into time in order to determine what are
the rights of the parties."

But having said that, I must add that in most automobile
collision cases estimates of time, speed and distance do not lend themselves to
exact mathematical analysis, because the estimates are by their very nature
uncertain[…]

In my opinion s. 165 [now s. 175],
dealing with rights-of-way of drivers proceeding along through streets, and
stopped at stop signs on intersecting streets, is to be applied broadly from
the point of view of the motorist sitting in the driver’s seat, and not meticulously
by a Judge with the benefit of afterthought. The situation confronting a
motorist, even one waiting at a stop sign, is not a static, but a fluid one,
calling for quick appreciation and judgment. A driver waiting at a stop sign
ought not to enter a through street unless it is clear that oncoming traffic
does not constitute an immediate hazard. Excessive refinement of what traffic
is an immediate hazard will defeat the purpose of the right-of-way regulations
contained in s. 165 [now s. 175], and make them an inadequate and confusing
method of regulating traffic at intersections on through streets.

[69]        
It is the driver in the plaintiff’s position who must yield the right of
way if the Van was so close as to constitute an immediate hazard. The plaintiff
was obliged to delay his entry into the Intersection if the Van was so close
that there was a threat of a collision.

[70]        
The defendants rely on the decision of Barrow J. in Burgess v. Fisher,
2009 BCSC 1766 and Raie for the proposition that the point at which the
determination of whether the through travelling vehicle is an immediate hazard
is the moment before the servient vehicle begins to encroach on the through
vehicle’s lane of travel. Barrow J. based this proposition on the discussion of
a left turning vehicle under what is now s. 174 of the MVA. In Raie,
the Court of Appeal said that the punctum temoris is not when the left
turning vehicle is stopped and waiting for traffic to clear, but the moment
when the turning vehicle commences the turn.

[71]        
Raie was decided under what is currently s. 174 of the MVA,
and involved two vehicles travelling
in opposite directions on the same road. That case addresses the responsibility
of the vehicle turning left in front of the oncoming vehicle. Since the
decision in Burgess, the Court of Appeal in Salaaan v. Abramovic,
2010 BCCA 212 has made the distinction that s. 174 principles do not apply
directly to a case involving a “T” intersection because there is no possibility
of traffic approaching from the “opposite direction”. The Court is focused on
the application of s. 175(1):

175  (1) If a vehicle that is
about to enter a through highway has stopped in compliance with section 186,

(a)        the driver of the
vehicle must yield the right of way to traffic that has entered the
intersection on the through highway or is approaching so closely on it that it
constitutes an immediate hazard, and

(b)        having yielded, the driver may proceed with
caution.

[72]        
Section 186 provides that a driver must stop his vehicle at the marked
stop line if there is a stop sign at an intersection.

[73]        
Therefore, s. 175(1) directs that the point at which the assessment of
the hazard is to be made is after the vehicle entering the highway has begun
its movement from the stop line into the intersection.

[74]        
Having stopped at the stop line, s. 175(1) suggests that a motorist
about to enter a highway is entitled to proceed if it is determined that there
is no traffic on the highway that constitutes an immediate hazard

[75]        
In this case the distinction is relevant only in so far as the Taxi
travelled 5.35 m from the stop line to the fog line marking the beginning
of the travelled portion of Highway 97 during which time it was in Mr. Sharp’s
view.

Other Duties

[76]        
If a driver becomes the dominant driver, as provided for in the MVA,
then that person must continue to use reasonable care to avoid a reasonably foreseeable
collision, notwithstanding the existence of the right-of-way. The Supreme Court
of Canada in Walker at 461 described the duty:

… 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 origo mali.

[Emphasis added.]

[77]        
The decision in Salaam at para. 33 restates the
obligations of the dominant driver:

[33]      The words “immediate
hazard” appear in both ss. 174 and 175 of the Motor Vehicle Act and are
used to determine when a vehicle may lawfully enter an intersection. They
determine who is the dominant driver, but do not, by themselves, define the
standard of care in a negligence action.

[78]        
The Salaam decision is apposite to the analysis of this claim, in
part because of the similarity in the circumstances. In Salaam the facts
were:

[4]        When the defendant
was approximately 450 feet from the Intersection, he noticed the plaintiff’s
car approaching the stop sign on 120 Street. Its left turn signal was flashing.
The plaintiff did not completely stop at the stop sign, but crept forward into
the intersection. The defendant was about 350 feet away when he realized that
the plaintiff’s vehicle was proceeding “with hesitations” into the right-hand
northbound lane of Scott Road, where she “paused”, but did not stop.

[79]        
The Court of Appeal recognized that s. 175 applies to circumstances
where there are vehicles entering highways from side streets, as opposed to
left turning vehicles facing traffic approaching from the opposite side of the intersection,
which engages s.174 of the MVA. Salaam was a case involving a “T” intersection
collision as is the case in this action. The plaintiff in that case was turning
left to go south after crossing two northbound lanes of 120^th Street
in Surrey; the plaintiff was struck by an oncoming vehicle.

[80]        
I conclude that s. 175 required the plaintiff to assess the risk of an
immediate hazard at the time he is about to leave the stop line. In this case,
the duty on the through highway driver was to take notice of the vehicle
entering the highway as it left the stop line and not at the time it crosses
the “fog line”. The plaintiff was seen by the defendant Sharp at the stop line
and as he left the stop line. This is a different obligation than exists when a
driver is turning left from a through street and collides with a vehicle coming
from the opposite direction.

[81]        
In Salaam the Court said at para. 18-21:

Common Law Duty of Care

[18]      While the statutory provisions provide guidelines
for assessing fault in motor vehicle accident cases, they do not, alone,
provide a complete legal framework.

[19]      In Carich v. Cook (1992), 90 D.L.R. (4th)
322 at 326, 9 B.C.A.C. 112, this Court considered liability for an accident
that occurred when a vehicle turning left on a four-lane road was in collision
with a vehicle proceeding in the opposite direction, in the outside lane. While
the Court was considering what is now s. 174 of the Motor Vehicle Act
rather than s. 175, it is my view that the opinion expressed by Lambert J.A.
has some relevance to this case:

The question as a driver turns left
is whether there is any vehicle in any approaching lanes that constitutes an
immediate hazard. If there is, the turn should not be made. If there is not,
then the turn can be made and of course, care should be taken throughout the
turn and as each new lane is entered to make sure that the situation as it was
assessed when the turn started has not changed in the meantime. But that care
is more a matter of the ordinary duty of a reasonably careful driver and not a
duty, in my view, imposed specifically by s. 176 [now s. 174] which, in my
view, states the situation when the turn is commenced. Once the turn is
commenced both of the drivers in that situation, the one who is doing a left
turn and the ones that are approaching straight ahead in a situation where a
vehicle could turn in front of them, all must keep a proper look-out.

[20]      To the extent that there is a need to refer to a
section of the Motor Vehicle Act for this proposition, one can turn to s.
144, which requires drivers to drive with “due care and attention” and to have
“reasonable consideration for other persons using the highway”.

[21]      In the end, a court
must determine whether, and to what extent, each of the players in an accident
met their common law duties of care to other users of the road. In making that
determination, a court will be informed by the rules of the road, but those
rules do not eliminate the need to consider the reasonableness of the actions of
the parties. This is both because the rules of the road cannot comprehensively
cover all possible scenarios, and because users of the road are expected to
exercise reasonable care, even when others have failed to respect their right
of way. While s. 175 of the Motor Vehicle Act and other rules of the
road are important in determining whether the standard of care was met, they
are not the exclusive measures of that standard.

[82]        
If the defendant Sharp is found to be the dominant driver in this case, the
opinion of Groberman, J.A. will inform the court on assessing the issue of the parties’
non statutory duties of care. He said at para. 25:

[25]      A driver like the
defendant, who is in a dominant position, will not typically be found to be
liable for an accident. Drivers are generally entitled to assume that others
will obey the rules of the road. Further, though defensive driving and
courteous operation of motor vehicles are to be encouraged, they do not
necessarily represent the standard of care for the purposes of a negligence
action. A driver will not be held to have breached the standard of care simply
because he or she failed to take extraordinary steps to avoid an accident or to
show exceptional proficiency in the operation of a motor vehicle.

The Defendant Sharp’s Speed

[83]        
The first issue to be resolved is which driver was in the dominant
position at the time the plaintiff left the stop line. It appears that neither
party saw the other until immediately before the impact and neither recognized
the other as presenting a hazard to continuing in their intended direction of
travel.

[84]        
Estimates of time, speed, and distance are vulnerable to error in the
best circumstances and even more so in the prelude to, and aftermath of, a
traumatic event such as this accident.

[85]        
The plaintiff’s memory of the incident is unreliable due to several
factors, including the influence of information given to him by others prior to
the date when he recovered his recollections of the incident. In addition, the
velocity with which the accident happened, the catastrophic consequences to the
plaintiff, some inconsistencies between his discovery evidence and testimony at
trial all lead me to conclude that his report of the events may not be
reliable. I did not form the view that the plaintiff was intending to mislead
the Court; he seemed to be doing the best to explain his current understanding
of the accident.

[86]        
The defendants did not testify at trial and their evidence is derived
solely from those parts of the examination for discovery the plaintiff chose to
read into the record.

[87]        
The engineering analysis of time, speed and distance is hoped to be more
reliable than the observations of lay persons involved as participants or
witnesses. However, engineering opinion evidence is heavily dependent on proof
of certain facts and ranges of measurements. This explains in part challenges
to the accident reconstruction analyses of Dr. Toor and Sgt. Nightingale.

Dr. Toor and Sgt. Nightingale

[88]        
The opinion evidence of the speed of the Van occupied much time at trial.
The defendant Sharp acknowledges that he was most likely exceeding the speed
limit but only by a marginal amount. The defence did not call accident
reconstruction opinion evidence although a report and data analysis were prepared
for them and referred to in the cross-examination of Dr. Toor. The author of
that report, Mr. Din, obtained data and information about the damage sustained
by the vehicles which were relied upon by Dr. Toor.

[89]        
The defence thoroughly cross-examined Dr. Toor and Sgt. Nightingale in
an effort to challenge their conclusions regarding pre-impact speed of 119 km/h
(Sgt. Nightingale) and 135 km/h (Dr. Toor) of the defendant Sharp’s
vehicle before the collision.

[90]        
Dr. Toor acknowledged that accident reconstruction analysis is not an
exact science. His principal approach relied on his linear momentum analysis
with secondary reliance on damage analysis.

[91]        
The defence argued that these estimates were wholly unreliable and
should be rejected, or in the alternative given little weight in the assessment
of the defendant Sharp’s speed. The plaintiff argued that if the defendant Sharp
was travelling less than 135 km/h he ought to have foreseen the danger and been
able to take steps to avoid the collision. The corollary to that argument is
that when the plaintiff commenced making his turn onto Highway 97, the Van was
not a hazard. The plaintiff asserts that if the Van’s speed had been closer to
the posted speed limit, the defendant Sharp could have taken evasive measures
and avoided the accident. Dr. Toor opined that if the Van had been travelling
at as little as 110km/h, the Taxi would have moved through and beyond the defendant
Sharp’s lane of travel by 8 m.

[92]        
The scientific and mathematical analyses used to establish the speed of
motor vehicles prior to a collision depend on many variables and engage the
professional judgment and knowledge of the expert. Dr. Toor indicated that he
used both linear movement analysis and damage momentum analysis in order to estimate
the defendant’s speed. The damage momentum analysis was used to corroborate the
linear movement analysis. In an ideal situation, Dr. Toor suggested that the
results from each of these analyses would be identical.

[93]        
The Taxi was equipped with an airbag control module designed to record
and store data in the event of a collision via Crash Data Retrieval (CDR)
software. The data was downloaded and examined by Dr. Toor. The speed change in
the forward direction was recorded to have been 8.8 km/h, which significantly
underestimated the collision severity.

[94]        
Dr. Toor employed a secondary analysis described as “damage momentum” taking
into account the direction of force, damage sustained by the vehicles and post
impact displacement direction to produce a secondary conclusion. The linear
momentum analysis and damage momentum analysis produces similar but not
identical results.

[95]        
He assessed the post impact trajectory of the Taxi and allowed for a
range of possibilities in estimating the exact deceleration rate. Dr. Toor noted
that this analysis can be strained to conform to the CDR results. He concluded
that there was a similarity between the linear and damage momentum diagrams
that provided a higher degree of confidence in the calculated speeds and
corresponding results.

[96]        
The defence argues that Dr. Toor’s opinion is flawed and should be given
little value because:

·      
in analyzing the CDR from the Airbag Control Module he used a
different velocity change than contained in the CDR;

·      
parts were missing from the Van which affected the measurements
of crushed data essential to the analysis;

·      
the Taxi was unavailable for examination, which also affected the
measurements for the crushed data;

·      
the lack of stiffness data to accurately analyze the damage for
the make and model of the Taxi, required Dr. Toor to make an estimate as to
stiffness, thereby weakening his opinion;

·      
Dr. Toor used a wider measure of damage for the Van than was used
in the NHTSA data. He acknowledges that a narrower width would result in a
lower speed;

·      
There was a possibility that the plaintiff’s foot may have
depressed the gas pedal producing an outside force affecting his conclusion
about the speed change on impact. If this scenario occurred, Dr. Toor’s
estimate of speed would have been less;

·      
Dr. Toor relied on the assumption that all four of the Van’s
wheels locked up on collision and that if the lockup was restricted to the rear
wheels, the Van’s speed may have been 116.9 km/h on the linear momentum
analysis.

CDR Change in Velocity

[97]        
Dr. Toor said that his analysis of speeds was not dependent on the data
recovered from the CDR. He said the CDR data is used to validate his findings
but that his principle conclusions are derived from the linear momentum
analysis.

[98]        
Dr. Toor said that side collision data derived from the CDR understates
the speed change in a lateral collisions. He noted that the data derived from the
CDR analysis of the Taxi’s speed change was 8.8 km/h. He used a speed change of
22.1 km/h because, in his view, the 8.8 km/h report understated the force of
collision. He said that his approach was consistent with the evidence of the
actual damage to both vehicles. He said that his experience and skill persuaded
him that the change in velocity was more likely consistent with his use of 22.1
km/h.

[99]        
I accept that the CDR data recovery is not determinative of Dr. Toor’s
opinion and operated as a collateral measure that was consistent with his other
calculations. I also accept that Dr. Toor, in interpreting the CDR data,
adequately explained his reliance on the speed change of the impacted vehicle
was appropriate given the parameters of his analysis.

Unavailability of the Taxi for Examination

[100]     Dr. Toor
acknowledged the fact that the plaintiff’s vehicle was not available for
examination deprived him of the ability to personally observe and assess the damage.
Dr. Toor noted that the actual measurements of damage were taken by the defence’s
engineer and he incorporated that data in his crush analysis. Nevertheless, the
absence of actual measurements leads to some uncertainty.

[101]     Dr. Toor
was questioned about research data from Mr. Germaine, a recognized authority
and researcher in the field of crash analysis. Dr. Toor acknowledged that there
were possible variations resulting from the studies done by Mr. Germaine, but
that he did not view the potential of lower stiffness measurements as
necessarily producing a lower velocity for the subject vehicle.

Width of Damage

[102]     Dr. Toor
responded to questions about the width of the Van and the distortion of his
conclusions arising from that discrepancy based on the NHSTA data. Dr. Toor
denied that the affect of the NHSTA study using narrower vehicles undermined
his conclusion. He said that his conclusions would not change as long as they
were consistent with his physical observations of the damage. Although a
narrower width would result in a lower speed estimate, that conclusion arises
only if it was consistent with the physical observations.

Outside Forces

[103]     Dr. Toor
also agreed that the path of the Taxi after impact suggested the existence of
some force other than the Van striking the plaintiff. He agreed, for example,
that the plaintiff may have accelerated after impact, which would have been the
type of external force changing the trajectory of his car. If the plaintiff’s
accelerator had been depressed, then the analysis of speed would be overstated.

[104]     No
evidence was obtained from the plaintiff to suggest that his foot had been on
the gas pedal or depressed the gas pedal following the collision. While the
defendant speculates that this was a possibility that would have reduced Dr. Toor’s
estimate of the defendant Sharp’s calculated speed before impact, Dr. Toor did
not have any evidence to support the suggestion. The indication of another
force affecting the movement of the Taxi was not sufficiently clear that I
should reduce the weight to be given to Dr. Toor’s conclusion.

Two Wheel Lockup vs. Four Wheel Lockup

[105]     The defence
argued that Dr. Toor’s assumptions relied on the proposition that all four
tires on the Van locked up. The wind crush data produced an estimate of the Van
at 134.1 km/h in the mid-linear momentum analysis. He argued that if one
assumed that the rear wheels were not locked up the same analysis might produce
speeds of 116.9 km/h to 121 km/h. Dr. Toor acknowledged that a difference in
the estimated speed would occur if the assumption of full lockup did not occur.
However, Dr. Toor did not agree that the evidence disclosed that only two
wheels had locked up. He said he took into consideration the possibility that
the front right tire was deflated.

[106]     Sgt.
Nightingale opined that the defendant Sharp’s speed was a minimum of 119 km/h
and acknowledged using a coefficient of friction of 0.74 rather than 0.625 used
by Dr. Toor. Sgt. Nightingale relied on his own measurements to in calculating
the appropriate co-efficient of friction but acknowledged that if he had used
the same coefficient of friction used by Dr. Toor, his estimate of the Van’s
speed at the time of impact would have been 20% higher. He also acknowledged
that he did not have pre-impact physical data from the vehicles and confirmed that
ABS brakes do not generally make tire marks – thus further undermining his
opinion.

[107]     I observed
that Dr. Toor used a conservative coefficient of friction in his analysis of
speeds based on a paper by C.H. Warner. His use of a lower coefficient of
friction produced an estimate for the defendant Sharp’s speed greater than
estimated by Sgt. Nightingale because the physical evidence indicated that defendant
Sharp was decelerating for a greater distance (13 m) than used by Sgt
Nightingale; he believed this discrepancy resulted in Sgt. Nightingale
underestimating the speed of the Van.

[108]     The defence
argued that if the Van had not been braking post impact, as assumed by Sgt.
Nightingale, his estimate of pre-impact speed would be lower. The defendant testified
that he did not manage to apply the brakes of his vehicle before impact and Mr.
Tuckey did not see illuminated brake lights on the Van before impact.

[109]     There is a
significant variation in the expert’s opinions as to the defendant Sharp’s
pre-impact speed that arises from the assumptions and data used to form their
opinions. I accept that both experts were careful and candid in their analyses
and that Sgt. Nightingale speed estimate represented a minimum rate based
on conservative estimates.

[110]     Dr. Toor
commented that the RCMP report was not cross referenced with his other analysis
involving damage and crush considerations; he said that the results of his
analysis correspond with two additional methods of analysis which gives a
higher degree of assurance that the Van speed was between 130 km/h and
138 km/h. Both opinions are helpful in assessing the defendant Sharp’s
speed but neither are determinative.

Other Evidence of Speed

[111]     Speed is
an important feature in the evidence because it influences the analysis of
whether the Van was an immediate hazard at the time the plaintiff moved off the
stop line. In my view the observations of Mr. Tuckey are most helpful in
resolving the uncertainty relating to the defendant Sharp’s pre-accident speed.
Mr. Tuckey’s estimates appeared honest and carefully calculated, notwithstanding
the fact that there were variances between his pre-trial statements, his
evidence in chief, and in cross-examination.

[112]     To assist
in the determination of the Van’s speed leading up to the collision, I have
considered the evidence of Mr. Tuckey, including his estimates of speed and
distance in the space between the return lane from the weigh scale and the Intersection.

[113]     Mr. Tuckey
said that the defendant Sharp completed passing his semitrailer at the point
where the return lane from the weigh scale merged with Highway 97, which
according to Exhibit 2 is approximately 500 m from the Intersection.

[114]     Mr. Tuckey
testified that the distance between his semitrailer and the Van, after the defendant
Sharp passed the semitrailer, grew to between 115 m – 175 m. I have concluded
that the defendant Sharp’s speed exceeded Mr. Tuckey’s speed over this distance
and that his vehicle travelled between 115 m – 175 m beyond the Tuckey truck by
the time of impact with the Taxi.

[115]     Under
cross examination, Mr. Tuckey estimated that the Van was only 50 m from the Intersection
when the Taxi pulled away from the stop line. That estimate cannot be correct
given the uncontroverted evidence that the Taxi travelled in the range of 3.6 s
– 4.2 s from the stop line to the point of impact. Furthermore, at a minimum
speed of 95 km/h, the Van would have travelled between a minimum of 97.6 m – 124
m from the beginning of the Van’s movement across the highway to the point of
impact. In addition, the defendant Sharp testified at his examination for
discovery that he observed the Taxi moving for 10 s before impact; he also said
he did not see the Taxi on the roadway until immediately before the collision.

[116]     Mr. Tuckey
was referred to his written statement to the Calgary police signed July 9, 2008
in which he confirmed that the Van had passed him near the weigh scale and did
not return to the slow lane.

[117]     I accept
that the Van finished passing Mr. Tuckey at about the point of re-entry to the
highway from the weigh station, approximately 500 m from the Intersection. I
have concluded that Mr. Tuckey had slowed before the weigh scale to about 85 km/h
and when the Van passed him, Mr. Tuckey’s speed had returned to 95 km/h, expanding
the gap between the semitrailer and the Van in the range of 115 m – 175 m at
the point of impact with the Taxi.

[118]     In summary:

·      
The minimum increase in the gap between Mr. Tuckey’s vehicle and
the Van at the time of impact was 115 m;

·      
The Van travelled 500 m from the weigh scale merge point to the
collision in the same time that the Tuckey vehicle travelled a maximum 385 m (500
m minus 115 m) by the time of impact with the Taxi;

·      
To create the gap between the vehicles, the Van moved faster than
the Tuckey vehicle by at least 115 m over 500 m;

·      
The speed of the Tuckey vehicle was 95 km/h and would have
travelled 385 m in 14.58 s;

·      
The Van travelled an additional 115 m (a total of 500 m) in the
same 14.58 s. Travelling 500 m in 14.58 s results in a speed of 123 km/h. If
the gap between the Van and the Tuckey truck was 150 m at impact, then the Van would
have been travelling at 136 km/h at the point of impact.

[119]     It does
not appear that the defendant Sharp was able to slow his vehicle by some
measure before impact; Mr. Tuckey’s estimated that at impact his truck was
approximately as little as 115 m from the collision. These estimates of
distance and speed provide some confirmation of the opinions given by Dr. Toor
and Sgt. Nightingale in estimating the defendant Sharp’s pre-impact speed
exceeded the posted limit.

[120]     There is
no perfect mechanism for determining the actual speed of the Van at impact with
the Taxi. I am required to decide that fact on the balance of probabilities.
The reliability of opinions estimating the speeds of vehicles based on complex
calculations and assumed facts are, admittedly subject to a range of
possibilities. Where there has been a loss of physical evidence, limited data,
and estimates, the results can vary widely. I observed that Dr. Toor used three
different analyses to support his conclusions. Although he acknowledged
uncertainties and several assumptions, he achieved some consistency in the
results derived from the linear movement analysis, damage analysis and review
of the CDR data. I appreciate that the estimates provided by the experts
reflect an effort to reach a principled and well reasoned scientific analysis. The
uncertainties illustrated the assumptions used by Dr. Toor and Sgt. Nightingale
cast doubt as to the accuracy of their opinions; however, their evidence gives
me considerable assurance that the speed of the Van was significantly more than
95 km/h and possibly as much as 135 km/h.

[121]     The range
of estimates of the defendant Sharp’s speed at the point of impact are:

·      
between 85 km/h (defendant Sharp testified at the examination for
discovery that he was travelling 85 km/h)

·      
between 123 km/h and 136 km/h (based on Mr. Tuckey’s evidence,
that he was moving at 95 km/h)

·      
135 km/h suggested by Dr. Toor

·      
119 km/h estimated by Sgt. Nightingale

[122]     I have attached
significant weight to the opinions of Dr. Toor and Sgt. Nightingale
coupled with the estimates of Mr. Tuckey and the distances disclosed in the
photographic evidence. Although I do not accept the narrow opinions provided by
either expert, their analyses are helpful in reaching a conclusion. I have made
allowances for the uncertainties and some of the data incorporated in Dr.
Toor’s analysis in finding that his estimate likely exceeded the defendant
Sharp’s actual speed. The evidence satisfies me that the defendant Sharp’s pre-accident
speed was between 123 km/h and 136 km/h. Taking into account all this evidence,
I consider the defendant Sharp’s most likely pre-impact speed was 123 km/h.

[123]     I accept
Dr. Toor’s opinion that between 3.6 – 4.2 s elapsed from the time the Taxi left
the stop line and the collision happened. Sgt. Nightingale testified that
2.27 s likely elapsed between the time the Taxi left the stop line and
reached the fog line on the west side of Highway 97.

[124]     If the defendant
Sharp had travelled at 90 km/h, he would have travelled between 90 m – 105 m
after the plaintiff left the stop line. At 123 km/h the defendant Sharp would
have travelled between 123 m – 144 m before impact.

[125]     Dr. Toor’s
opinion that a motorist will detect and identify a hazard on the road within
1.1 s of its appearance, and a further 0.7 s will be required to implement a
decision in response to the hazard is greater than Sgt. Nightingale’s estimate
of the perception response time of 1.5 s. Accordingly, the defendant Sharp
would have travelled 61.5 m during the perception response time mentioned by
Dr. Toor and 51.2 m based on Sgt. Nightingale’s use of the lower estimate. Based
on Sgt. Nightingale’s opinion, I have concluded that skidding to a stop while travelling
at 123 km/h would require an additional 80.46 m; the total distance
required to stop the Van would have been 142 m (based on Dr. Toor’s estimate)
and 132.7 m (based on the Nightingale estimates).

Hazard

[126]     The
defendant Sharp observed the plaintiff had stopped at the stop line for several
seconds (he estimated 10 s) as he approached the Intersection. The plaintiff proceeded
for 3.6 s – 4.2 s to the point of impact. At 123 km/h the defendant Sharp was travelling
at 34.16 m/s and would have travelled approximately 126 m during the
plaintiff’s travel to the point of impact.

[127]     Section
175 of the MVA describes the obligation of a driver who has, at first,
stopped in compliance with s .186. Section 186 provides that a driver must stop
his vehicle at the marked stop line if there is a stop sign at an intersection.
Having stopped at the stop line, s. 175 suggests that a motorist about to enter
a highway is entitled to proceed if it is determined that there is no traffic
on the highway that constitutes an immediate hazard. I conclude that s. 175
required the plaintiff to assess the risk of an immediate hazard at the time he
is about to leave the stop line. In this case, the duty on the through highway
driver was to take notice of the vehicle entering the highway as it left the
stop line and not at the time it crosses the “fog line”. The plaintiff was seen
by the defendant Sharp at the stop line and after he left the stop line. This
is a different obligation than exists when a driver is turning left from a
through street and collides with a vehicle coming from the opposite direction.

[128]     The
defendant Sharp, travelling 33 km/h over the posted limit, would have reduced
the time available to take evasive action or stop and would not have collided
with the plaintiff in any event. It seems to me that the defendant Sharp,
having seen the plaintiff start before he left the stop line and after, neglected
to keep a proper lookout for the emergency that was developing in front of him.

[129]     Although
Dr. Toor suggested that the Taxi might not have become a visible hazard to the
defendant Sharp, I am satisfied on the evidence that the defendant Sharp was
aware that the plaintiff was proceeding on to the highway from the moment he
left the stop line. At that point, the defendant Sharp was, or ought to have
been, aware that the plaintiff was proceeding in disregard of the defendant Sharp’s
right of away.

[130]     The
plaintiff was not entitled to leave the stop line and enter the Intersection
unless there was no risk of a collision with through traffic. Any doubt about
safety of a vehicle moving into an intersection in the face of oncoming vehicle
on the through road is to be resolved in favor of the driver in the defendant’s
position.

[131]     Neither the
defendant Sharp nor Mr. Tuckey had any difficulty in identifying the bright
yellow Taxi as it was stopped on Meadowlark Road. The defendant Sharp’s discovery
evidence was equivocal as to what he saw before impact. He first testified that
he saw the Taxi leaving the stop line and followed it across his path, but then
he indicated he had not seen the Taxi after it left the stop line. At that juncture
he ought to have been aware the plaintiff might cross over into his lane.

[132]     In the
absence of evidence from the defendant Sharp on the point, it is more difficult
to assess his appreciation of the hazard presented by the plaintiff. It was
clear to me that the plaintiff did not see the Van until he saw the
grill “milliseconds” before impact.

[133]     The
plaintiff was obligated to ensure that he did not start his turn when the Van
was so close that some sudden action would be necessary to avoid the threat of
a collision. The plaintiff did not see the Van and accordingly could not have
formed the opinion that the Van was, or was not, a potential hazard or that it
was safe to enter Highway 97.

[134]     I must
still consider whether, in fact, the defendant Sharp was so close to the Intersection
to require the plaintiff to yield the right-of-way. The plaintiff relies on several
decisions from this Court in arguing that the plaintiff was the dominant driver
and entitled to the right-of-way.

[135]     The facts
in Johel v. Insurance Corporation of British Columbia, 2012 BCSC 166
are distinguishable from this case where the Court found that an unidentified
driver on the roadway had overtaken another vehicle. In Johel, the
vehicle was not a hazard at the time the plaintiff entered the highway because
it had been overtaking another vehicle when unsafe to do so.

[136]     In Leask
v. Nat Mann Lease, [1986] B.C.J. No. 2092 (S.C.), the wet road
conditions contributed to the defendant’s failure to stop in time to avoid the
collision. It is clear that the trial judge concluded that when the plaintiff
entered the through road, the defendant was not so close as to constitute an
immediate hazard. In my view, that is not the evidence in this case.

[137]     In Kamoschinski
v. Hein, [1989] B.C.J. No. 909 (Co. Ct.) the defendant was travelling 40%
over the speed limit and was a considerable distance away from the intersection
when the plaintiff turned into the road. In Kamoschinski, the plaintiff
had observed the defendant driver as the defendant was accelerating. The Court
concluded that at the time just before proceeding into the intersection, the
defendant’s vehicle was not so close as to constitute an immediate hazard under
the prevailing conditions. The Court noted that the plaintiff was entitled to
assume that the defendant’s vehicle was travelling within the speed limit and
that it was unlikely the defendant would not accelerate as it neared the intersection.
The Court concluded that there was no reasonable apprehension of danger as the
plaintiff driver entered the intersection and therefore the defendant was not
an immediate hazard.

[138]     These
facts are not apposite to this case where the plaintiff did not see the Van or
make any judgment about the immediacy of the hazard it might pose for him.
There is evidence that the defendant Sharp was accelerating, but it was well
known that vehicles regularly exceeded the speed limit in this location.

[139]     In Rollins
v. Lovely, 2007 BCSC 1752, Dickson J. concluded that the through driver was
distracted while looking at his cell phone and did not break or skid before
impact. The Court noted that when a driver concludes reasonably that there is
no immediate hazard posed by oncoming traffic and commences to cross a
multilane road, they must still keep a proper lookout as each lane is crossed.

[140]     Justice
Dickson stated that if an approaching car does not present an immediate hazard
when the manoeuvre is commenced, but later creates one by unreasonable conduct
such as speeding, the approaching driver will be held responsible for the
ensuing collision: See Devidi v. Filatow,1998 CanLII 6405 (B.C.S.C.).

[141]     The defence
relies on Godrich v. Holden, 1993 CanLII 778 (B.C.S.C.) to
support the proposition that even where the driver on the through highway sees
a vehicle stopped at a stop sign, it is reasonable for that person to expect
that the driver would not break the law and therefore a through driver is not
negligent in failing to anticipate that the merging driver would cross in
front. Nevertheless, in Cooper v. Garrett, 2009 BCSC 35, Madam
Justice Loo confirmed that a motorist exceeding the speed limit in this type of
intersection collision will be found negligent if the speed prevented the
driver from taking reasonable measures to avoid the collision.

[142]     If the
defendant Sharp’s speed was 123 km/h, he would have been between 123 m – 143 m
away from the Intersection when the plaintiff commenced crossing the highway.
The defendant Sharp would have required 142 m to perceive the hazard, respond
to the hazard and stop his vehicle. It seems to me that the defendant Sharp was
an immediate hazard at or about the time the plaintiff left the stop line.

[143]     The
defence rely on Cooper as support for the principle that travelling over
the speed limit will only constitute negligence if the driver’s speed prevented
him from taking reasonable measures to avoid the collision.

[144]     The
defence also cite Burgess, as well as Twining v. Huang, 1999
CanLII 1810 (B.C.S.C.), Alferez v. Wong, [1994] B.C.J. No. 3319
(B.C.S.C.) as cases involving similar facts in which the Court has assessed
liability at 100% against the driver entering the highway.

[145]     In my
view, the defendant Sharp was the dominant driver when the plaintiff began to
cross Highway 97 and the plaintiff remained the servient driver throughout. When
Mr. Currrie began his turn from the stop line it is clear that absent a sudden
or violent action by Mr. Sharp, there was a reasonable danger or risk of collision
from the moment he left the stop line. The plaintiff’s negligence caused or
contributed to the accident, which would not have happened if he had kept a
proper lookout and deferred to the defendant Sharp’s right of way.

Contributory Negligence

[146]     The
defendant Sharp was driving in excess of the speed limit as he approached the Intersection,
but this fact, alone, does not determine that he was in breach of his duty of
care to the plaintiff.

[147]     The
defendant Sharp observed the plaintiff at the Intersection leaving the stop
line. Why he did not continue to concern himself with the fact that the
plaintiff was not surrendering the right-of-way is something of a mystery.
Having seen the plaintiff at the stop line in the obviously bright yellow Taxi
and observing him leave the stop line, the defendant Sharp failed to act
reasonably.

[148]     Mr. Tuckey
stated that he could not see any reason why the Van could not have moved over
into his lane and avoid the collision, or brought his vehicle to a stop. The
defendant Sharp said he had checked his rear view mirror immediately before
impact. Mr. Tuckey believed there was time and space for him to change lanes
before the Intersection.

[149]     Mr. Sharp
was or should have been aware that the plaintiff was proceeding into the Intersection
in breach of his right of way. The defendant Sharp had the time and the opportunity
to avert the collision if he had been driving less aggressively.

[150]     It is
clear that if the defendant Sharp’s speed had been as little as 110 km/h, the
plaintiff would have cleared the Intersection without incident. Although speed,
in itself, is not necessarily a breach of the standard of care I have concluded
that the defendant Sharp’s speed was more than one third higher than the posted
limit and his speed that interfered with his ability to take evasive steps. He would
have had more time to react to the hazard and could have avoided the accident
by steering and/or braking. In the circumstances he could otherwise have
performed those manoeuvres which a reasonably careful and skilled driver might
have taken. I have concluded that his lack of attention to the Taxi after it
left the stop line, coupled with his excessive and unsafe speed, were a breach
of his duty of care to the plaintiff.

[151]     This case
is distinguishable from Burgess. In that case, the defendant entered the
highway when his view of traffic was obstructed. Barrow J. said that the
defendant was obliged to remain at the stop sign unless he could determine that
the approaching traffic did not pose an immediate hazard. The plaintiff reacted
prudently as soon as she saw the vehicle crossing in front of her. In this case,
there was no obstruction of the roadway to the plaintiff and the defendant
Sharp did not react to the plaintiff moving in front of him as soon as he should
have. The defendant saw the Taxi move from stopped position, and paid no attention
until the collision was imminent.

[152]     Similarly,
in Rackstraw v. Robertson, 2011 BCSC 947 there was no evidence to
establish that the speed of the defendant’s vehicle prevented him from
avoiding the accident. The plaintiff had no opportunity to see the defendant
until it entered the highway and was unable to take steps to avoid the
collision. In that case, the plaintiff had breached his duty by failing to stop
at the stop sign, failing to keep a proper lookout and failing to yield to the
Robertson vehicle as it entered the highway, all while driving with frosted
windows that were not transparent.

[153]     In Rackstraw,
the Court also indicated that it is only where drivers complied with s. 175(1)
that the servient position moves to the driver in the position of the through travelling
vehicle.

[154]    
In Salaam, the Court of Appeal assessed the plaintiff’s fault at
75%. The defendant’s fault was assessed at 25% for the following reason:

[29]      The question in this
case is whether the defendant exercised reasonable care in approaching the intersection.
When he was 350 feet away, the plaintiff’s vehicle started crossing the road
and entered into his lane of travel. A reasonable driver would have been put on
notice that the plaintiff was not obeying the rules of the road and posed a
hazard. A reasonable driver would have exercised increased caution, paid close
attention to the plaintiff’s vehicle and prepared to stop or to give it a wide
berth. Instead, the defendant insisted on his right of way. A mere 100 feet
from the intersection, when the plaintiff’s vehicle was fully in his lane of
travel and still proceeding forward, the defendant changed lanes in an attempt
to drive around her. Until the last moment, he maintained his speed. In the
best case scenario, if the plaintiff had seen the defendant’s vehicle and
stopped abruptly, the collision would have been avoided by mere inches. Instead,
the plaintiff continued forward, and the defendant’s vehicle struck the middle
of the plaintiff’s vehicle. In the circumstances, the defendant’s negligence
contributed to the accident.

[155]     In the
circumstances of this case it is hard to imagine why the defendant Sharp,
already alerted to the presence of the Taxi at the stop line, and seeing it
begin to move without regard for his right of way, did not give more attention
to the Taxi and take some measures to avoid the developing risk of a collision
as the Taxi moved forward. The defendant Sharp reported looking to his right to
see if he could change lanes but was faced with the Taxi in front of him before
being able to turn into the right lane.

[156]     In Salaam
the Court of Appeal said:

[33]      The words “immediate
hazard” appear in both ss. 174 and 175 of the Motor Vehicle Act and are
used to determine when a vehicle may lawfully enter an intersection. They
determine who is the dominant driver, but do not, by themselves, define the
standard of care in a negligence action.

[157]    
The Court then addressed the issue of duty of care:

[34]      In applying the
“immediate hazard” test in order to determine negligence, the trial judge erred
in law. Applying the correct legal test to the defendant’s conduct (i.e.,
the test enunciated in Walker v. Brownlee), the defendant had a duty to
take care when he approached the plaintiff’s car in the intersection, having
had ample warning that she was not following the rules of the road. A
reasonable driver would not have insisted on right of way, and certainly would
not have driven aggressively through the intersection, aiming to pass within
inches of the plaintiff’s moving vehicle.

[158]     Although I
have concluded that the defendant Sharp was in the dominant position he was nevertheless
aware of the plaintiff moving from the stop line for several seconds before
impact. The plaintiff entered the highway from the stop line, past the fog
line, across the right lane, and into the fast lane before seeing the defendant
Sharp.

[159]     The
defendant Sharp observed the Taxi when he was about 1/2 km or 1 km from the Intersection.
He did not see the Taxi come to a complete stop, but observed the vehicle
continually. The defendant Sharp was able to judge the Taxi’s speed; it moved slowly
from the stop line and gradually pulled out into the slow lane across the fast lane
to the point of impact.

[160]     During the
time the defendant Sharp was aware of the Taxi, he took no evasive action, and
did not apply his brakes or sound his horn. There was no reliable explanation
why the defendant Sharp could not have made an effort to enter the slow lane
and avoid the collision.

[161]     It was
difficult to comprehend why the defendant Sharp did not take some evasive or
defensive steps during the time he saw the plaintiff moving from the stop line.
There were no visual obstructions affecting his view of the Taxi. He seems to
have seen the Taxi from over 300 m from the Intersection; this is not a case
where the defendant was prevented from seeing the plaintiff as a hazard until
the instant before the collision.

[162]     The
defendant Sharp argued that the assessment of the plaintiff as a hazard could
not occur until the plaintiff had crossed the fog line; this may be germane to
the right of way issue. The issue of Mr. Sharp’s perception of the Taxi before
it crossed the fog line is important to the assessment of his negligence
notwithstanding he acquired the right of way. In this case the defendant Sharp did
not testify and did not explain why he did not respond or to take steps to
avoid the collision or lessen the impact and I am left to resolve the issue
with only the confusing answers given to questions on his examination for
discovery.

[163]     There was
no evidence that the defendant Sharp was relying on his right of way as set out
in s. 186 of the MVA in continuing toward the Intersection while the
Taxi started crossing the highway.

[164]     The
defendant Sharp might have been aware that the plaintiff was a hazard for as
many as 4 seconds before impact. It is difficult to imagine what the he was
thinking during the time the he was proceeding toward the Intersection at the
same time the plaintiff was moving into the Highway.

[165]     Mr. Weber
said that he perceived that it was safe to cross the Intersection at the time the
plaintiff crossed the stop line. Mr. Weber had a clear view of the semitrailer
and the Van. This is some evidence to support the plaintiff’s claim that when
he left the stop line the Van did not appear to be a hazard.

[166]     Mr. Tuckey
believed that the defendant Sharp had time and opportunity to change lanes and
avoid the collision.

[167]     It may be
that the defendant Sharp’s speed, almost 30 km/h over the posted limit
contributed to the misapprehension of Mr. Weber about the safety of the
plaintiff commencing the crossing.

[168]     The
question I must answer is whether a reasonable driver in the defendant Sharp’s
position would have been put on notice that the plaintiff was not obeying the
rules of the road and ignoring the defendant’s right of way with insufficient
time to take steps to avoid the collision.

[169]     In my
view, the plaintiff was not keeping an adequate lookout or paying sufficient
attention to the roadway as he proceeded from the stop line. The defendant
Sharp had the Taxi in view for some time before it crossed the fog line; he
failed to appreciate that a collision was likely to occur unless he took some
evasive action.

[170]     I conclude
that defendant Sharp was not keeping a proper lookout and that due to his speed
and inattention to the unfolding situation clearly visible in front of him, he deprived
himself of the chance to take steps to avoid the collision or to reduce the
severity of the impact. Although the Van was the dominant vehicle, the evidence
satisfies me that the defendant Sharp should have recognized that the Taxi had
failed to yield the right of way in sufficient time to take measures to avoid
the collision. The engineering evidence is that the plaintiff’s vehicle was
moving from the stop line for as many as 4.2 s before impact and not 10 s as
suggested by the defendant Sharp.

[171]     The
experts opined that to detect and identify a hazard and implement a decision in
response to the hazard would take approximately 1.5 s to1.8 s; Sgt. Nightingale
estimated this interval at 1.5 s. These estimates are averages and do not
specifically describe the circumstances facing the parties; it is an estimate
based on scientific research presenting a range of possibilities. However, it
is likely that the defendant Sharp had between 2.1 s. and 2.7 s. form the first
movement of the Taxi to take evasive measures. He did not keep a proper look
out in the circumstances of this case.

Conclusion

[172]     This is not
a case where there is any evidence that the defendant believed that the
plaintiff was respecting his right of way and would not move from the stop line
into his path of travel. Similarly, this is not a case where the plaintiff is
able to say that he misjudged the speed of the defendant (although he may very
well have done so) or could otherwise explain why he traveled onto Highway 97
when the defendant was coming so quickly towards the intersection.

[173]     The evidence
demonstrates that but for the defendant Sharp’s excessive speed toward
the intersection, he should have been able to take reasonable measures to avoid
the accident. He could have braked and/or changed direction in sufficient time
to avoid the collision or significantly lessen the impact.

[174]     In my
view, a reasonable driver in the defendant Sharp’s position would have been put
on notice that the plaintiff posed a hazard and should have exercised caution,
and taken steps to avoid the risk that was developing in front of him. He was
aware that the plaintiff was entering the Intersection from 3.6 – 4.2 seconds
before impact; he had up to 2.1 s and 2.7 s after detecting the danger and deciding
on his response to avoid the collision. Instead, the defendant Sharp continued
without reducing his speed and deprived himself of the opportunity to take
available evasive measures.

[175]     I also
find fault with the defendant Sharp for failing to keep a proper look-out after
he became aware that the Taxi was moving from the stop line when he was 123 m –
143 m metres away. His failure to maintain a proper look-out is another reason why
he did not respond to the Taxi’s movement in a timely way. His negligence
contributed to the accident.

[176]     The
plaintiff’s negligence is composed of his failure to keep a proper lookout and
observe the presence of the defendant Sharp and, as a result of that error, he failed
to yield the right-of-way to the defendant and caused this collision.

Apportionment of Fault

[177]    
Where, as here, the fault of two or more persons combine to cause a
loss, liability will be apportioned.  Apportionment is governed by the Negligence
Act.  The relevant provisions are set out below:

s.1 Apportionment of liability for damages

(1)        If by the fault of 2 or more persons damage or
loss is caused to one or more of them, the liability to make good the damage or
loss is in proportion to the degree to which each person was at fault.

(2)        Despite subsection (1), if, having regard to all
the circumstances of the case, it is not possible to establish different
degrees of fault, the liability must be apportioned equally.

(3)        Nothing in this section operates to make a person
liable for damage or loss to which the person’s fault has not contributed.

s.4 Liability and right of contribution

(1)        If damage or loss has been caused by the fault of
2 or more persons, the Court must determine the degree to which each person was
at fault.

s.6 Questions of fact

In every action the amount of
damage or loss, the fault, if any, and the degrees of fault are questions of
fact.

[178]     The determination
of fault depends on the extent of blameworthiness, that is, the degree to which
each party is at fault, and not the degree to which each party’s fault has
caused the loss. The Court assesses degrees of fault not degrees of causation.

[179]    
In Alberta Wheat Pool v. Northwest Pile, 2000 BCCA 505, Finch,
J.A. (as he then was), explained the test at paras. 45-46:

In my view, the test to be applied here is that expressed by
Lambert, J.A. in Cempel, supra, and the Court’s task is to assess
the respective blameworthiness of the parties, rather than the extent to which
the loss may be said to have been caused by the conduct of each.

Fault or blameworthiness
evaluates the parties’ conduct in the circumstances, and the extent or degree
to which it may be said to depart from the standard of reasonable care. 
Fault may vary from extremely careless conduct, by which the party shows a
reckless indifference or disregard for the safety of person or property,
whether his own or others, down to a momentary or minor lapse of care in
conduct which, nevertheless, carries with it the risk of foreseeable harm.

[180]    
In Aberdeen v. Township of Langley, Zanatta, Cassels, 2007 BCSC
993; reversed in part in Aberdeen v. Zanatta, 2008 BCCA 420,
Groves J. enumerated factors that can be used in assessing relative
degrees of fault under the Negligence Act.  At para. 62 he
endorsed the factors in assessing relative degrees of fault set out by the
Alberta Court of Appeal in Heller v. Martens, 2002 ABCA 122 as follows:

1.         The nature of the duty owed by the tortfeasor to
the injured person…

2.         The number of acts of fault or negligence committed
by a person at fault…

3.         The timing of the various negligent acts. For
example, the party who first commits a negligent act will usually be more at
fault than the party whose negligence comes as a result of the initial fault…

4.         The nature of the conduct held to amount to fault.
For example, indifference to the results of the conduct may be more
blameworthy… Similarly, a deliberate departure from safety rules may be more
blameworthy than an imperfect reaction to a crisis…

5.         The extent to which the conduct breaches statutory
requirements. For example, in a motor vehicle collision, the driver of the
vehicle with the right of way may be less blameworthy…

[Authorities
omitted]

[181]    
Groves J. added the following at para. 63:

6.         the gravity of the risk created;

7.         the extent of the opportunity to avoid or prevent
the accident or the damage;

8.         whether the conduct in question was deliberate, or
unusual or unexpected; and

9.         the knowledge one
person had or should have had of the conduct of another person at fault.

[182]     I have
considered the comparative blameworthiness and the relative degree by which
each driver departed from the standard of care expected of them in the
circumstances.  The various factors I have considered are the nature of
the departure from that standard of care, the magnitude, and the gravity of the
risk each of them created.

[183]     In my view
the plaintiff was obliged to yield the right-of-way and failed to do so, likely
because he did not see the Van which was clearly visible. The defendant Sharp
travelled at a speed more than one third above the limit and failed to take any
timely measures to avoid the collision. The defendant Sharp also failed to keep
a proper lookout and that, combined with his speed, deprived him of the
opportunity to avoid the collision. In the end, when he realised that the Taxi
was moving in front of him he looked to the right to attempt a lane change but
was travelling too fast to be able to change lanes. I conclude that the
plaintiff was more blameworthy. I apportion the liability for this collision 75%
to the plaintiff and 25% to the defendants.

[184]    
The parties will be at liberty to make submissions as to costs. Unless
the parties wish to make oral submissions, the plaintiff is to make written
submissions, if necessary, within 30 days of this judgment and the respondent
shall provide written submissions within 30 days of receiving the plaintiff’s
submissions.

“Armstrong J.”