IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130312

Docket: 43541

Registry:
Vernon

Between:

Marlene Guadalupe
Catala Soto

Plaintiff

And

Andrew Leonard
Peel, Jeremy Patrick Chouinard

Norman James Good
and

John Doe, Executor
of the Estate of Brenda Mary Good, Deceased

Defendants

And

Jennifer
Scott

Third
Party

And

Insurance
Corporation of British Columbia

Third
Party

– and –

Docket: 44732

Registry:
Vernon

Between:

Marlene Guadalupe
Catala Soto

Plaintiff

And

Jennifer Scott

Defendant

And

Andrew Leonard
Peel, Jeremy Patrick Chouinard

Norman James Good
and

John
Doe, Executor of the Estate of Brenda Mary Good, Deceased

Third
Parties

And

Insurance
Corporation of British Columbia

Fourth
Party

– and –

Docket: 44537

Registry:
Vernon

Between:

Jennifer Bernice
Scott

Plaintiff

And

Norman James Good,
John Doe Executor

of the Estate of
Brenda Marie Good, Deceased,

Jeremy Patrick
Chouinard, Andrew Leonard Peel

Defendants

– and –

Docket: M084741

Registry:
Vancouver

Between:

Norman James Good

Plaintiff

And

Andrew Leonard
Peel, Jeremy Chouinard,

Jennifer Bernice
Scott, and Marlene Catala Soto

Defendants

And

Insurance
Corporation of British Columbia

Andrew Leonard
Peel, Jeremy Chouinard and John Doe,

Executor of the
Estate of Brenda Mary Good, deceased

Third
Parties

– and –

Docket: M093670

Registry:
Vancouver

Between:

Norman James Good

Plaintiff

And

Andrew Leonard
Peel, Jeremy Chouinard,

Jennifer Bernice
Scott, and Marlene Catala Soto

Defendants

And

Insurance
Corporation of British Columbia

Andrew Leonard
Peel, Jeremy Chouinard and John Doe,

Executor
of the Estate of Brenda Mary Good, deceased

Third
Parties

Before:
The Honourable Mr. Justice Jenkins

Reasons for Judgment

I.                
Introduction

[1]            
These five actions all arise from a very serious motor vehicle accident
which occurred in the evening hours of August 15, 2007 on the Trans-Canada
Highway at a point approximately 3.5 kilometers west of Salmon Arm, B.C.

[2]            
There are two issues I have been asked to decide in this trial; these
issues are common to the five actions.

[3]            
The first issue is liability for claims arising from this accident and
the second issue is whether or not the driver of one of the vehicles
responsible for the accident was driving with the consent, actual or implied,
of the owner of that vehicle under section 86 of the Motor Vehicle Act, R.S.B.C.
1996, c. 318 [the “MVA”].

[4]            
I will start these reasons with a summary of the background of the
parties followed by a review of the evidence of the accident, and finally, my
findings on each of the two issues.

II.              
The Parties

[5]            
Norman James Good and his late wife, Brenda Good, resided in Kitimat,
B.C. and in August of 2007 they were vacationing at their summer home at Blind
Bay, B.C., which is west of Salmon Arm. At the time, Mr. Good was a
practicing chiropractor in Kitimat. Mr. and Mrs. Good were planning
to eventually move into the home in Blind Bay permanently as their retirement
home.

[6]            
With them on vacation was their youngest daughter, Jenelle, who at the time
was 11 years old. Mr. and Mrs. Good were also the parents of three
other adult children.

[7]            
On the evening of August 15, 2007, Mr. and Mrs. Good together
with Jenelle had attended a bible study in Salmon Arm which had ended for the
evening at approximately 8:30 p.m. After briefly speaking to other participants
at the bible study at the close of the meeting, the Goods returned to their
late model Honda Pilot (the “Honda”), which is a full-size SUV, to begin the
drive to their summer home.

[8]            
Before leaving Salmon Arm, Mr. Good stopped at a Dairy Queen and
purchased ice cream cones for himself, his wife and Jenelle at approximately
9:00 p.m. and then headed out onto the Trans-Canada Highway in a westerly
direction towards Blind Bay.

[9]            
Jennifer Scott is a practical nurse who resides in Calgary, Alberta. At
the time of the accident she was 29 years of age. Ms. Scott’s roommate,
both now and at the time of the accident, is Marlene Catala Soto [hereinafter
Marlene Catala]. In 2007, Ms. Catala was 27 years old, and was also a
practical nurse. She has since become a registered nurse.

[10]        
On August 15, 2007, Ms. Scott and Ms. Catala left Calgary in
the early afternoon, planning to drive to Scotch Creek, B.C. to visit Ms. Catala’s
mother on a one week vacation. They were driving in a Ford Focus automobile
owned by Ms. Catala. Accompanying them were two small dogs and a cat.

[11]        
Ms. Scott and Ms. Catala shared driving duties that day. On the
portion of the trip from Calgary to Golden, B.C., Ms. Catala was driving.
In Golden, they took a refreshment break and Ms. Scott took over driving.
After leaving Golden, Ms. Scott stopped briefly for gasoline in Salmon Arm
while Ms. Catala purchased a soft drink.

[12]        
Just before 9:00 p.m., around the same time that the Good family headed
west, Ms. Scott pulled onto the westbound lane of the Trans-Canada Highway
to continue the final leg of their trip to Scotch Creek.

[13]        
In the summer of 2007Jeremy Chouinard was 26 years of age and owned a
moving company operating in the Shuswap Lake area and was living in a rented
house on Centennial Drive in Blind Bay, B.C. Mr. Chouinard had been living
in the Shuswap – North Okanagan area since childhood.

[14]        
At trial, Mr. Chouinard described himself as a “big time drinker”
and a “heavy alcoholic” in and around 2007. He also described the Centennial
Drive residence as a “party house”, acknowledging frequent partying and
drinking at the house over the summer months in particular. Mr. Chouinard
has a lengthy criminal record with several convictions for assault and
mischief.

[15]        
In the summer of 2007 there were various other people staying from time
to time at the Centennial Drive residence including his former girlfriend,
Chrissy Stewart.

[16]        
Mr. Chouinard was the registered owner of a 2002 Ford Explorer (the
“Explorer”) which vehicle was driven by Mr. Andrew Peel at the time of the
accident on August 15, 2007.

[17]        
Andrew Peel had grown up in the Salmon Arm area and was 40 years old as
of August 2007. He had first met Mr. Chouinard in Salmon Arm when Mr. Chouinard
was 13 years of age. He was an experienced draftsman in the field of sawmill
equipment. Over several years leading up to August of 2007, Mr. Peel had
been an extreme alcoholic and had been addicted to cocaine, which, he says
interfered with every aspect of his life. Mr. Peel had returned to British
Columbia from New Brunswick in early 2007 after having been convicted of
assault and other charges for failure to appear. He was on parole as of August
2007.

[18]        
At approximately 9:00 p.m. on August 15, 2007, Mr. Peel drove the
Explorer owned by Mr. Chouinard from the residence on Centennial Drive and
onto the Trans-Canada Highway heading eastbound.

III.            
The Accident

[19]        
There is a stretch of the Trans-Canada Highway approximately 3
kilometers west of Salmon arm which is a long, straight stretch of
approximately 2 kilometers. In that area the highway consists of two lanes with
a paved and outer gravel shoulder on each side of the highway. There is a
broken yellow line down the center of the highway and solid white lines to the
outside of each travelling line, referred to as “fog lines”, which designate
the beginning of the paved portion of the shoulders. From the gravel shoulder
there is a drop off on the south side of between 2-3 meters and less of a drop
off on the north side.

[20]        
The speed limit on this stretch of the Trans-Canada Highway was 90 kmh
at the relevant time.

[21]        
There is no highway lighting on this stretch of highway. There was
evidence that sunset on August 15, 2007 was at 8:16 p.m. and the end of “civil
twilight” was recorded as 8:52 p.m. Therefore, at just after 9:00 p.m. that
evening, the sky was almost completely dark.

[22]        
August 15, 2007 was a beautiful warm Okanagan summer evening. The roads
were clear and dry.

[23]        
There is considerable conflicting evidence of what occurred on this
stretch of the Trans-Canada Highway on the evening in question.

[24]        
Mr. Peel has no recollection of what occurred, save for the “feeling
of hitting” and a “vague picture” of the impact. This is unsurprising given
that he had been drinking heavily on that day, had not slept at least the night
before and, as he stated, was on a “three day tear”. He had also been consuming
cocaine. Considering his state of inebriation, fatigue and drug use at that
time, I have little confidence that any of the statements by Mr. Peel as
to the occurrences of August 15, 2007 are accurate or reliable.

[25]        
As Mr. Peel was driving eastbound, Mr. Good was proceeding
westbound in the Honda. His wife, Brenda Good, was sitting in the front
passenger seat and his daughter Jenelle was sitting behind Mr. Good. All three
were wearing over-the-shoulder seat belts.

[26]        
I should point out that although the Good family was travelling in the
westbound lane of the Trans-Canada Highway, when the accident occurred, the
Good vehicle was actually travelling in a northerly direction on the section of
the highway in the seconds prior to the accident. Therefore, any residual
sunset which would have been in the western sky would not have affected Mr. Good’s
vision.

[27]        
Mr. Good’s evidence was he had no recollection of seeing any
headlights of vehicles behind the Honda once he turned onto the straight
stretch of highway. He also stated in evidence that he was travelling at the
speed limit of 90 kmh. The Honda’s headlights were on.

[28]        
Ms. Scott was meanwhile driving the Ford Focus westbound and recalls
other westbound vehicles in front of here which were “a safe highway distance
in front of the Ford Focus.” She, too, testified that she had turned on the
headlights and was travelling at 90 kmh. Ms. Catala was sitting in the
front passenger seat and had started to doze off. She was not able to offer any
evidence of events just prior to the accident.

[29]        
Mr. Good then noticed the lights of an oncoming eastbound vehicle begin
to drift over into the westbound lane. He assumed that vehicle must have been passing
another eastbound vehicle. After a few seconds of seeing the headlights of the
vehicle coming towards him in the westbound lane, the observed vehicle pulled
back into the eastbound lane. Mr. Good was not concerned once the oncoming
vehicle, which was the Explorer being driven by Mr. Peel, had returned to
the eastbound lane.

[30]        
Very shortly thereafter, likely within a few seconds, the vehicle that
we now know to have been the Explorer (driven by Mr. Peel), swerved into
the westbound lane, but this time the Explorer was much closer to Mr. Good’s
Honda. At first the Explorer was travelling head on towards Mr. Good but
then began to drift further into the westbound lane and onto the shoulder of
the westbound lane.

[31]        
Realizing that he was in imminent danger from the oncoming vehicle, Mr. Good
stated he “dropped his ice cream cone on the console”, “hit the brakes and kept
braking hard” when the oncoming vehicle was in the westbound lane and on the
shoulder. Mr. Good also stated that when the oncoming vehicle was on the
westbound shoulder, he also moved more towards the center of the highway but
that he did not move over the center line.

[32]        
Suddenly, as the eastbound vehicle neared Mr. Good’s Honda, the
Explorer suddenly veered right, back into the westbound lane, towards the Good’s
Honda. Mr. Good saw gravel flying from the shoulder of the highway and
realized that impact was inevitable. He also stated that the oncoming vehicle
never did seem to slow down.

[33]        
The Explorer impacted the Honda on the front passenger’s side and pushed
the Honda over into the eastbound lane. Immediately before impact, when seeing
the gravel flying, Mrs. Good said “oh” or “oh no”. Mrs. Good died,
likely immediately after impact.

[34]        
Mr. Good was injured and was in shock as a result of the impact
with the Explorer. He was not aware of a second impact which occurred shortly
after the impact with the Explorer, possibly within one or two seconds, when
the Ford Focus driven by Ms. Scott struck the left side of the Honda in the
area of the driver’s door and the rear door on the driver’s side close to where
Janelle was sitting.

[35]        
Ms. Scott testified that in the few seconds leading up to the
accident, she was travelling at the 90 kmh speed limit and was neither gaining on,
nor falling behind the vehicle in front of her, which we now know was the Honda.

[36]        
The first “unusual” action noted by Ms. Scott was when she noticed
headlights come out of the eastbound lane and that the vehicle was driving
eastbound in the westbound lane , towards the vehicle in front of her, i.e. the
Honda. She then saw the oncoming vehicle move onto the westbound shoulder as if
it was going “head on” towards the Honda which had also moved closer to the
westbound shoulder. She knew something was very wrong and she described the
scene unfolding in front of her as if the vehicles were “playing chicken”.

[37]        
Ms. Scott’s reaction to this situation was to move over towards the
eastbound lane, believing she had enough room to get around the Honda and the Explorer
before any other oncoming traffic was likely to approach the scene. She stated
that as she started to move over the center line she noticed the Explorer come
off of the shoulder and so she moved further over into the eastbound lane. She
then saw bright lights and there was a crash. Ms. Scott said that she felt
“weightless” and her car had a “soft landing” on the driver’s side and landed
in a “ditch” adjacent to the eastbound lane of traffic, facing eastbound.

[38]        
In her evidence, Ms. Scott stated that she had not had time to “hit
the brakes”. By the time of the accident her Ford Focus had gained on the Honda
and she testified that she never saw the brake lights on the Honda come on. She
further stated, “if I had put on the brakes I don’t know what would have
happened” and that her first instinct was to not hit the brakes but to try to
evade “what was happening on the shoulder”.

[39]        
Under cross-examination Ms. Scott stated that she only saw the
headlights drift over into the westbound lane on one occasion, unlike Mr. Good
who had seen headlights drift over the center line on two occasions. An
independent witness, Ms. Heather Schiefke, who was driving eastbound
behind Mr. Peel, also stated that what we now know as the Explorer passed
over the center line on two occasions. I accept the evidence of Mr. Good
and Ms. Schiefke that the Explorer passed over the center line on two
occasions. However, I do not as a result find that Ms. Scott’s failure to
see the first occasion when the Explorer crossed the line to be an indication
of a lack of credibility on her part or evidence that she was not maintaining a
careful lookout as was suggested at trial. I come to this conclusion based on
two pieces of evidence. First, I find that Ms. Scott’s vehicle would
likely not have turned the bend in the highway by the time the Explorer crossed
the line the first time and so would not have seen the Explorer cross the
center line the first time. Secondly, even if she had turned the bend in the
highway, her vehicle was much smaller than the Honda in front of her which may
have blocked her sight line of the Explorer’s headlights. In any event, I do
not consider Ms. Scott’s failure to notice the Explorer’s first entry into
the westbound lane to be relevant to the issue of her liability.

[40]        
Finally, Ms. Scott stated on cross-examination:

I had time to avoid [the Explorer] by going into the
eastbound lane. It seemed a collision was inevitable and the other car could
bounce into my path. My instincts were to get out of there and I went left.

and:

I was following at a safe highway
distance and had enough time to stop without hitting the car in front.

[41]        
The independent eye witness, Ms. Schiefke, was driving eastbound
behind the Explorer and stated that the Explorer was getting ahead of her, even
though she was travelling at the posted speed limit. She saw that vehicle move
into the westbound lane and then came back into the eastbound lane and almost
into the ditch on the eastbound side. The driver of the Explorer continued to
correct its course and then overcorrected back into the westbound lane where it
stayed until the collision. From Ms. Schiefke’s view point, the Explorer
had drifted into the westbound lane, then back into the eastbound lane, and
then into the westbound lane for a second time in what was described as a “jerking
motion”. When she saw the Explorer go back into the westbound lane the second
time, she could see headlights coming towards her and slowed as she could see
that something was about to happen and she wanted to stay back. The Explorer
stayed in the westbound lane until the collision. She recalled only one impact.

[42]        
After the accident, Ms. Schiefke pulled her car to the side of the
road to assist Ms. Scott and Ms. Catala.

[43]        
From the time Mr. Good noticed the Explorer move into the westbound
lane for the second time (when he realized there was great danger) to the time
of the impact could only have covered a few seconds in time. At first the Honda
was travelling at 90 kmh and the Explorer, based on the evidence of Ms. Schiefke
was travelling faster than her speed of 90 kmh, the Honda and the Explorer
would have been travelling towards each other at a speed of approximately 180
km per hour. I accept that for Mr. Good and Ms. Scott, there was no
time to explore and consider alternative means of avoiding the clear danger.

[44]        
There is no question that the person primarily responsible for this
horrific collision was Mr. Peel. A question I am being asked to decide is
whether Ms. Scott, in attempting to maneuver around the Honda and the
Explorer in an effort to avoid a collision, was negligent in the operation of
the Ford Focus. As Ms. Scott was driving a vehicle owned by Ms. Catala,
Ms. Catala would also be vicariously liable for the negligence of Ms. Scott.
More specifically, the question is: did Ms. Scott drive in a negligent
manner so as to be partially responsible for the impact between the Honda and
the Ford Focus so as to cause the injuries suffered by Mr. Good and his
daughter, Janelle?

A.             
RCMP Investigation

[45]        
The first officer on the scene after the accident was Cst. Kevin Mayes
who, upon arriving at 2128 hours attempted to find the drivers and explore
whether alcohol may have been involved in the accident. This was because a call
to 911 had mentioned that alcohol appeared to be a factor. Two witnesses
pointed to Mr. Peel as the driver of the Explorer. After approaching all
three vehicles and determining there had been a fatality in the Honda, Cst.
Mayes found Mr. Peel in an ambulance and joined him in the ride to the
hospital. Cst. Mayes stated that Mr. Peel was uncomfortable, was arguing
with the ambulance attendants, and was waving his arms wildly. Cst. Mayes
determined from his behaviour and from the liquor on his breath that Mr. Peel
was impaired and arrested him for impaired driving causing death. Later, Cst.
Mayes obtained a warrant for a blood sample and that sample resulted in a
Certificate of Analysis indicating a blood alcohol of 274 milligrams of alcohol
in one hundred millilitres of blood, i.e. the Certificate indicated that Mr. Peel’s
Blood alcohol reading was approximately 3.5 times the legal limit. The accuracy
of this certificate was not disputed at trial.

[46]        
Cst. Mayes found Mr. Peel to be incoherent and generally unable to
respond to questions. He was also not satisfied Mr. Peel understood the
demand for a blood sample which resulted in Cst. Mayes obtaining a blood
warrant.

[47]        
Mr. Peel was eventually released from hospital and was taken to a
cell in the Salmon Arm RCMP detachment.

[48]        
On August 16, 2007 Cst. Mayes attended a towing yard where he located
the Explorer driven by Mr. Peel and owned by Mr. Chouinard. Among
other items found in the Explorer, Cst. Mayes located two letters to Mr. Peel.
The first was a letter from the Bank of Montreal to Mr. Peel and the
second was from Community Corrections to Mr. Peel at the address which he
determined to be that of Mr. Chouinard. Community Corrections in Salmon
Arm was the office administering Mr. Peel’s parole after his return to
B.C.

[49]        
Days later Mr. Chouinard attended at the detachment and refused a
statement as he told Cst. Mayes he “did not want to be screwed by ICBC”. Also
at that time, Cst. Mayes sought a statement of Mr. Chouinard’s then
girlfriend, Christie Stewart, who also refused a statement at that time but did
provide a statement at a later date.

[50]        
Cst. Mayes also determined that Mr. Chouinard had not reported to
the RCMP or any other authority that the Explorer was stolen before or on
August 15, 2007.

[51]        
Cst. Sean Orb also attended at the scene of the accident at
approximately 2300 hours. Cst. Orb is a qualified collision analyst; however,
his evidence was restricted to factual evidence, rather than opinion, due to
his report having been filed outside the time period prescribed in the Rules.
As well, Cst. Orb took many photographs of the scene of the accident and gave
evidence explaining several photographs.

[52]        
Cst. Orb’s evidence identified a “rolling tire imprint” in the west
bound gravel shoulder leading to the ditch on that side as well as two tire marks
in the paved west bound shoulder. Weight shift marks and gouges were both
located in the west bound lane; the natural inference to be drawn from these
markings is that they indicate a change of direction. He also located white
paint smears on a road sign post in the westbound gravel shoulder and a white
plastic wheel flair to the north of the highway sign. The Explorer was white in
colour. This evidence corroborates the evidence of Mr. Good, Ms. Scott
and Ms. Schiefke describing the Explorer having drifted over the westbound
lane into the gravel shoulder.

[53]        
Additionally, there was an antifreeze fluid spray pattern leading to the
final position of the Explorer.

[54]        
Regarding the Honda, Cst. Orb reported “extensive damage to the right
side”, i.e. the passenger side. He also noted that “the driver’s door had
several dents. Green paint smears were located on the rear left alloy wheel and
the driver’s door.” The green paint smears matched the colour of the Focus.
Silver paint from the Honda was found on the right side panels of the Focus and
“structural components [of the Focus] were peeled towards the rear of the
vehicle”. Cst. Orb stated that the structural components referred to “had been
attached by glue and had peeled towards the rear”.

[55]        
Reviewing the evidence of Cst. Orb, especially in relation to the
collision between the Honda and the Focus, and the evidence of Ms. Scott,
I find the same to be consistent with the evidence of Ms. Scott that the Focus,
attempting to pass the pending collision by moving to the eastbound lane, deflected
off of the driver’s side of the Honda shortly after the much more violent
impact between the Explorer and the Honda. Upon being struck by the Explorer on
the right or passenger’s side, the Honda was pushed into the eastbound lane where
the Honda was struck with a glancing impact, sending the Focus over the
eastbound shoulder and down into the ditch beside the highway.

[56]        
Under cross-examination, Cst. Orb stated that he did not see any
pre-impact tire marks from the Honda or the Focus.

[57]        
The final member of the RCMP to testify was Cst. Steven Rose. Cst. Rose
did not attend at the scene of the accident but did report to the detachment
shortly after midnight of the day of the accident to assist Cst. Mayes in his
effort to obtain a search warrant authorizing a blood test of Mr. Peel and
otherwise assist with paper work.

[58]        
Cst. Rose was also involved in the release of Mr. Peel from custody
at the detachment late the next morning. He had observed Mr. Peel in his
cell and engaged in a discussion with him regarding the accident and eventually
went over to the cell counter in the detachment as Mr. Peel was making two
phone calls. Cst. Rose was standing a few feet from Mr. Peel while Mr. Peel
was making the calls and Mr. Peel was aware that Cst. Rose could hear at
least Mr. Peel’s side of the conversation. Cst. Rose also took notes of
the conversation as it continued prior to release of Mr. Peel from
custody.

[59]        
Of significance during that conversation is the following:

a)    Mr. Peel
said he wanted to call “Jay Smith” and provided Cst. Rose with some phone
numbers.

b)    After dialing
the number, Mr. Peel told the person he had called that he had been in an
accident, had gone to the hospital, received a 24 hour suspension, had hit the
steering wheel, was in pain and asked the person to come pick him up at the
RCMP detachment.

c)     Mr. Peel
told the person he called that he “didn’t know much, they haven’t told me
much”, “I took the vehicle, I understand, I’ll put it in writing”, “I don’t
want to come back there”, and “I got no money”.

d)    After hanging up
he said to Cst. Rose, “I took the vehicle without consent. I drove away after
an argument. I got up and left. I want to make that a part of this.”

[60]        
Mr. Peel did not make a statement in writing and left after calling
a taxi which soon came to pick him up. Cst. Rose was clearly of the opinion
that Mr. Peel was told by the person on the other end of the call to make
sure he told the RCMP that he had taken the Explorer without consent. The
inference to be drawn is that Mr. Peel had not called “Jay Smith” but had
called the owner of the Explorer, who was Mr. Chouinard.

[61]        
Mr. Chouinard testified at trial and stated he had received a call
from Mr. Peel advising of the accident and that Mr. Peel told him there
was a fatality, but denies having told Mr. Peel what to tell the RCMP.

IV.           
Facts Relevant to the Issue of Consent for Mr. Peel to drive the
Explorer

[62]        
At this point, it is important to recall that both Mr. Chouinard,
the owner of the Explorer, and Mr. Peel, who was driving the Explorer at
the time of the accident, testified at the trial. These two men had known each
other for many years and had become reacquainted early in 2007 upon Mr. Peel’s
return to the Salmon Arm area, where they had both been raised.

[63]        
Mr. Chouinard was renting a home during 2007 at an address on Centennial
Drive in Blind Bay, B.C., which is a relatively rural area west of Salmon Arm.
The home was large, having four bedrooms. Mr. Chouinard insisted in
evidence that no one else was living in the home during the summer of 2007,
which is disputed by Mr. Peel. Mr. Peel testified that on his return
to the Salmon Arm area, he was on parole as a result of a conviction while he
had been in New Brunswick, was in need of a place to stay and was offered a
room by Mr. Chouinard in the Centennial Avenue house. Mr. Peel stated
that the agreement was that Mr. Chouinard was letting him stay at the
house “until he could get back on his feet.” He accepted the offer and was
provided with a downstairs bedroom as well as an office where he could work
online as a draftsman. Mr. Peel stated that he moved into the house in
late May or early June of 2007.

[64]        
Mr. Peel also stated that while he was living there, Mr. Chouinard’s
then girlfriend, Christie Stewart, was also living at the house more than 50%
of the time.

[65]        
Mr. Peel admitted that during 2007 and for several years previous,
he had been drinking alcohol daily, was dependent on alcohol and that his drinking
problem “interfered with everything”. He was also dependent on cocaine and
testified that he had been diagnosed as bipolar, for which he was consuming
medication.

[66]        
Mr. Chouinard referred to the home, with a smile on his face, as a
“party house”. As previously mentioned he admits to being an alcoholic and was
a “big time drinker” as of 2007. Gatherings and parties during which alcohol
and narcotics were consumed in excess were the norm during the summer of 2007.
The afternoon and evening of August 15, 2007 was no exception.

[67]        
Mr. Peel also testified that he had been told that Mr. Chouinard
had a bad temper, signs of which were readily apparent during Mr. Chouinard’s
testimony during the trial. Mr. Peel also admitted to having a criminal
record which included several convictions for assault.

[68]        
During the summer of 2007, Mr. Peel was the owner of a Dodge
Durango SUV, however, Mr. Peel testified that vehicle had been impounded
as of mid-July for lack of insurance but later corrected himself and stated
that, in fact, his driver’s license had been suspended. As there was no bus
service in the area of the Centennial Drive house, Mr. Peel was therefore
dependent on others for transportation. He stated in evidence that he had
obtained the consent of Mr. Chouinard to drive the Explorer on occasions
prior to August 15, 2007. He stated that Mr. Chouinard would allow him to
drive the Explorer when Mr. Chouinard “wanted something picked up” or “to
do errands”. Mr. Peel stated he never kept the keys to the Explorer.
Instead, he testified that they were always stored in one of a few places: in
the “junk drawer” in the kitchen shared by the occupants; in Mr. Chouinard’s
bedroom; or, in Mr. Chouinard’s pocket. On the occasions when he drove the
Explorer, he stated he had always asked Mr. Chouinard for permission. Mr. Peel
stated that Mr. Chouinard usually gave him permission but if it was “just
me wanting to get out, he [Chouinard] would say no.”

[69]        
Mr. Chouinard’s evidence regarding the use by Mr. Peel of the
Explorer before August 15, 2007 was that Mr. Peel had gone to the store a
few times for groceries. He also stated that on occasion he had refused Mr. Peel’s
request for the keys to the Explorer. He was also emphatic in stating more than
once that he would never allow someone to drive his vehicle if that person had
been drinking. In this vein, Mr. Chouinard answered, “you just do not do
those things [give a car to an impaired person]. It is like stabbing someone in
the eyeball with a knife or giving a child a gun”.

[70]        
Based upon my observations of Mr. Chouinard during the trial
including his deliberate avoidance of answering many questions while under
cross-examination, I have no hesitation in finding that Mr. Chouinard’s sole
concern while giving evidence was to attempt to avoid liability which could attach
to him should it be found that he consented to Mr. Peel driving the
Explorer on the evening of August 15, 2007. Mr. Chouinard expressed
concern that he did not want “to get screwed by ICBC” but in reality, by
avoiding questions and constantly stating “I don’t know”, he was deliberately
attempting to subvert the true account of the events of August 15, 2007 so as
to avoid liability.

[71]        
On August 15, 2007, Mr. Peel had returned to the Centennial Drive
house in the late morning after staying with friends in Digamous. He admitted
he had been on a three day “tear” consuming plenty of alcohol and cocaine and
that he had not slept during those three days. He went to lunch with Mr. Chouinard
and other friends at a nearby golf course where Mr. Peel stated that he
drank a “couple of cocktails” and some water.

[72]        
They returned to the Centennial Avenue house in the afternoon where Mr. Peel
and Mr. Chouinard were joined by Christie Stewart, her aunt and others. Based
on the unreliability of Mr. Peel’s evidence, and the lack of credibility
of Mr. Chouinard, I find it impossible to determine exactly how much
alcohol was consumed by Mr. Peel once they returned to the house. The only
reliable evidence of how much Mr. Peel had to drink is found in the Certificate
of an Analyst of Mr. Peel’s blood sample which was filed in evidence which
certified that Mr. Peel’s blood alcohol level was 274 milligrams of
alcohol in one hundred millilitres of blood. The sample of blood was taken
about 4 hours after the time of the accident which would mean that it is more
likely than not that Mr. Peel’s blood alcohol level was significantly
higher at the time of the accident.

[73]        
At some point in time on August 15, which Mr. Peel estimated was
5:30 p.m., those present determined that guests expected for that evening’s
party that evening liked to drink tequila and so the plan became to prepare for
a tequila party which would require several shot glasses for those
participating. Mr. Peel stated that Mr. Chouinard then gave him the keys
to the Explorer so Mr. Peel could drive to Sorrento, a nearby town, to pick
up some shot glasses for the party. Mr. Peel testified that the trip to
Sorrento took approximately 30 minutes.

[74]        
Mr. Chouinard actually did admit, during his examination for discovery
and at trial, that he there was a party at the house on August 15, 2007 and
there were “very many people” at the party, that he consumed alcohol, and when
asked what he was drinking, beer, wine or hard alcohol, he stated “Don’t
remember, probably a little bit of everything.” He also admitted that Mr. Peel
was at the party.

[75]        
I find, based on all of the evidence, that when Mr. Chouinard gave
the keys to the Explorer to Mr. Peel it had to be readily apparent to Mr. Chouinard
that Mr. Peel had been drinking alcohol as they had been together since
the late morning of that day. Again, in my view, Mr. Chouinard’s repeated
answer of “I don’t know” represented a continued attempt by him to avoid
answering truthfully. His trial testimony that he had no recollection of having
given the keys to the Explorer to Mr. Peel so as to go out and purchase
the shot glasses was one of the few occasions when Mr. Chouinard did not
answer “I don’t know”. Instead, he fully denied having done so; this, to me,
demonstrates that he provided a definitive answer only when he thought it might
assist his position.

[76]        
Also, Mr. Peel stated that on his return from purchasing the shot
glasses, he did not return the keys to the Explorer to Mr. Chouinard and
that Mr. Chouinard did not ask for them. If Mr. Chouinard was as
concerned about Mr. Peel having used his vehicle while impaired as he
claims to have been, it would make sense that he would have demanded the return
of the keys. Mr. Peel did say that he returned the keys to the kitchen
drawer where they were commonly stored.

[77]        
From the time he returned with the shot glasses to the time of the
accident, Mr. Peel testified that he consumed two shots of rye whiskey and
a couple of beers.

[78]        
Finally, the evidence is uncontradicted that at no time did Mr. Chouinard
contact or attempt to contact the authorities to report that the Explorer had
been stolen or taken without his consent. Although Mr. Chouinard denies
having known that Mr. Peel had taken the Explorer on the evening of August
15, 2007 following the argument with him, he stated that by some point the next
day, and in particular when Mr. Peel placed a telephone call to him from
the RCMP detachment, he was aware that the Explorer was gone from his
residence.

[79]        
Mr. Chouinard also testified that although he recalled having
received a telephone call from Mr. Peel on August 16, 2007 during which he
learned of the accident, he testified that he did not tell Mr. Peel what Mr. Peel
should tell the police. However, he also confirmed that he did not give a
statement to the RCMP when requested to do so.

[80]        
I will deal firstly with the question of whether Ms. Scott was
negligent in her operation of the Ford Fusion before turning to the second
issue of whether Mr. Chouinard consented to Mr. Peel driving the
Explorer on August 15, 2007.

V.             
LIability

A.             
Liability of Mr. Peel

[81]        
It was uncontentious at trial that Mr. Peel was negligent. The only
live question was whether liability ought to be apportioned amongst any of the
other defendants.

B.             
Was Mr. Good Negligent in his operation of the Honda Pilot?

[82]        
In action # 43541 a claim was made against Mr. Good for negligence,
however, that allegation was not seriously pursued at trial. Counsel for Mr. Peel
and Mr. Chouinard stated in argument that “the evidence does not indicate
anything that Norman Good could have done differently to avoid or lessen the
impact of the accident”.

[83]        
Counsel for Ms. Scott and Ms. Catala submit that Mr. Good
should be apportioned some liability only if Ms. Scott and Ms. Catala
are found partially responsible for the accident. This contingent argument is
based on their submission that “if this court determines that it is appropriate
to scrutinize the minutiae of the dynamics of the accident and find liability
on any party other than Mr. Peel, Good’s driving ought not to escape
criticism”, In their submissions they point to the evidence that Mr. Good
was eating an ice cream cone, the discrepancy in the evidence as to whether Mr. Good
applied his brakes leading up to the accident, and the fact that Mr. Good
admits to not having seen the Scott vehicle in his rear view mirror.

[84]        
In response to this argument I would say that negligence must be
determined based upon the evidence as it applies to each driver in question.
The outcome as to Ms. Scott’s liability does not, in any way, determine
the liability of Mr. Good absent evidence that establishes Mr. Good’s
negligence on the civil standard of proof.

[85]        
As the fact of the case unfolded it became readily apparent that Mr. Good’s
actions were not negligent. I would dismiss any claims against him.

C.             
Was Ms. Scott negligent in her operation of the Ford Focus?

[86]        
Counsel for Mr. Good and his wife’s estate allege that Ms. Scott
should shoulder some blame for the collision. More particularly, it is alleged
that she should have recognized a dangerous situation materializing in front of
her and should have braked until it was clear what was going to happen.
Instead, she continued on, moving into the eastbound lane, eventually striking
the driver’s side of the Honda before continuing into the ditch on the
eastbound side of the highway.

[87]        
Mr. Nairne, counsel for Mr. Good, refers to the decisions of Power
v. White, 2012 BCCA 197 and Stankowski v. Samant, 1993 CanLii 586
(BCSC) which essentially find that when a driver fails to take reasonable
precautions to avoid a dangerous situation, even when the other driver is
driving erratically, the failure to take reasonable precautions amounts to
negligence.

[88]        
I have also been referred to the recent decision of the Supreme Court of
Canada in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181 in
which the court found that a plaintiff cannot succeed unless he or she would
not have suffered the loss “but for” the negligent act or acts of a defendant
and the applicability of the “material contribution” test. More specifically,
Chief Justice McLachlin stated the following at para. 46:

[46]      The foregoing discussion leads me to the following
conclusions as to the present state of the law in Canada:

1.     As a
general rule, a plaintiff cannot succeed unless she shows as a matter of fact
that she would not have suffered the loss “but for” the negligent act or acts
of the defendant. A trial judge is to take a robust and pragmatic approach to
determining if a plaintiff has established that the defendant’s negligence
caused her loss. Scientific proof of causation is not required.

2.    
Exceptionally, a plaintiff may succeed by showing that the defendant’s
conduct materially contributed to the risk of the plaintiff’s injury, where (a)
the plaintiff has established that her loss would not have occurred “but for”
the negligence of two or more tortfeasors, each possibly in fact responsible
for the loss; and (b) the plaintiff, through no fault of her own, is unable to
show that any one of the possible tortfeasors in fact was the necessary or “but
for” cause of her injury, because each can point to one another as the possible
“but for” cause of the injury, defeating a finding of causation on a balance of
probabilities against anyone.

[89]        
Considering the ratio of Clements, before a “but for”
analysis can be undertaken it is necessary to determine if Ms. Scott breached
the standard of care in her operation of the Ford Focus. If Ms. Scott’s
driving met the standard of care it will not be necessary to consider the issue
of causation.

[90]        
The question is, did Ms. Scott fail to take reasonable precautions
to avoid an accident by maintaining her speed, pulling over the yellow line
into the eastbound lane and thereby attempting to get around the pending
accident between the Explorer and the Honda?

[91]        
In assessing the actions of Ms. Scott, it is very important to keep
in mind the very short period of time, likely a few seconds, between the time
when Ms. Scott did or should have realized there was imminent danger
facing her and the time within which she would have been able to react. Looking
at the events in hindsight, it would be very easy to judge after a considered
analysis of the alternatives available to Ms. Scott and the time within
which a reasoned decision can be achieved and assessed.

[92]        
Our courts have found that drivers in emergency situations are compelled
to make split second decisions without the ability to assess all
considerations. In Wormell v. Hagen [2009] B.C.J. No. 1717, Mr. Justice
Goepel, cited the following extract from Walls v. Mussens Ltd. et al (1969),
11 D.L.R. (3d) 245 at 247-248 (N.B.C.A.):

. . . where the plaintiff is compelled to make a quick
decision in the ‘agony of the moment’ he is not expected to take into account
all the considerations that a calmer appraisal of the situation might present
to the mind. Perfect foresight and presence of mind are not required. This
rule, sometimes called the ‘agony of the moment’ rule, is merely a particular
application of the rule that the standard of care required of both plaintiff
and defendant is that of a reasonable man.

[93]        
Also, in Ayers v. Singh (1997), 85 B.C.A.C. 307, [1997]
B.C.J. No. 350, the Court of Appeal was faced with a situation of
assessing the actions of a driver faced with an option of stepping on his
brakes as opposed to swerving to avoid a collision and at paras. 13 and
14, Lambert, J.A. stated:

13  The trial judge
in this case referred to the agony of the moment and in doing that he must have
had in mind the fact that the plaintiff’s first reaction was to look for a way
of avoiding the accident rather than to step on his brakes. The trial judge may
have been suggesting that the other course of action, namely, to step on the
brakes first, would have been preferable, but is attributing that error in
judgment to the agony of the moment rather than to negligence.

The Court of Appeal went on to find that there was no
palpable and overriding error in that case: para 14.

[94]        
In this case, it has been alleged that Ms. Scott must have been
either following too closely behind the Honda or was not keeping a reasonable
lookout of what was happening in front of her. Regarding the former, there is
no evidence which could lead me to disbelieve Ms. Scott’s evidence that
she was keeping a safe highway distance behind the Honda. Mr. Good
testified that he did not even see lights of any vehicles behind him in the
seconds leading up to the accident.

[95]        
As well, Ms. Scott stated that she did not see the brake lights of
the Honda engage which would contradict the evidence of Mr. Good that he
was breaking very hard once the Explorer came over to the westbound lane and
shoulder. Cst. Orb testified that he did not locate any pre-impact tire marks
from the Honda, which also would seem to contradict the evidence of Mr. Good
that he had been breaking very hard. I suspect that in the pending chaos and
“agony of the moment”, with horrifying results likely, that the parties would
have a difficult time recalling exactly what happened during those critical few
seconds.

[96]        
Ms. Scott testified that she could see the oncoming danger and
described the pending collision as two cars “playing chicken”. It would not be
surprising if, over a few seconds, with one vehicle headed in her direction at
high speed, that she may not have noticed the brake lights of the Honda engage,
if they had in fact been engaged.

[97]        
In retrospect, Ms. Scott had two choices. The first would have been
to brake and attempt to come to a stop before colliding with either vehicle.
Although braking may have prevented the Focus from impacting the side of the Honda,
the efficacy of this possible aversion was not established on the evidence and such
a conclusion would therefore require speculation. Furthermore, if she had
braked hard while staying in the westbound lane, it is equally plausible that
she could have put herself and her passenger in a position of increased risk of
collision and serious injury; no one knew at the time whether the Explorer was
going to continue on a line to impact either or both of the westbound vehicles.

[98]        
By turning into the eastbound lane at a time when there were no
immediate oncoming vehicles in that lane, Ms. Scott was attempting to steer
clear of the pending crash in the westbound lane. Ms. Scott had no way of
knowing that the Explorer would turn into the Honda and push it into the
eastbound lane, and thus into the path of the Ford Focus.

[99]        
Accordingly, I find that by attempting to turn away from the westbound
lane where the oncoming Explorer was positioned to run head on into the Honda, Ms. Scott
was taking reasonable care to avoid a collision and her actions within those very
few seconds did not constitute negligence on her part.

[100]     Having
found that Ms. Scott was not liable for the damages that resulted from the
collision of the Ford with the Honda, I now turn to the second issue at trial.

VI.           
Did Mr. Chouinard consent to Mr. Peel operating the Explorer?

[101]     As a
preliminary matter, I will make a few brief comments about the witnesses that
gave evidence on this issue. The Court heard from Mr. Chouinard, Mr. Peel
and Ms. Stewart.

[102]     As I have made
abundantly clear at earlier points in these reasons, I do not find Mr. Chouinard
to be a credible or reliable witness. His evidence appeared to be contrived to
advance his legal position and his very selective memory as to the events on the
date of the accident and the following day belies any alternative finding.
Mr. Peel presented as a forthright witness in some areas but not in others.
There was argument that some aspects of his testimony had been tailored to suit
the interests of Mr. Chouinard. I find that argument persuasive on the
evidence; particularly in light of the evidence of Cst. Rose and Ms. Stewart.
Where Mr. Peel’s evidence contradicts that of Cst. Rose or Ms. Stewart
in any significant way, I prefer their evidence. While Ms. Stewart admits
to having been a heroine user at the time of the accident, I find that she
presented as a credible and forthright witness in relation to the matters
before the court.

[103]     Determination
of this issue requires a consideration of section 86 (1) of the Motor
Vehicle Act, which reads as follows:

86 (1) In the case of a motor vehicle that is in the
possession of its owner, in an action to recover for loss or damage to persons
or property arising out of the use or operation of the motor vehicle on highway,
a person driving or operating the motor vehicle who

a)     is living
with, and as a member of the family of, the owner, or

b)     acquired
possession of the motor vehicle with the consent, express or implied, of the
owner,

is deemed to be the agent or
servant of, and employed as such by, that owner and to be driving or operating
the motor vehicle in the course of his or her employment with that owner.

[104]     In this
case, subsection 86(1)(b) is the relevant to the determination of whether Mr. Peel
“acquired possession of the motor vehicle with the consent, express or implied,
of the owner”. Both counsel for Mr. Good and counsel for Ms. Scott
and Ms. Catala allege that Mr. Chouinard provided express or
implied consent to Mr. Peel to drive the Explorer on August 15, 2007.

[105]     The
evidence satisfies me that Mr. Chouinard permitted others to drive his
Explorer even when those persons were without a valid driver’s license.
Specifically, I accept the evidence presented at trial that Mr. Chouinard
gave the keys to the Explorer to Mr. Peel so as to allow Mr. Peel to
travel to town to pick up the shot glasses for the planned tequila party.

[106]     I also
accept that Mr. Chouinard had to have known that Mr. Peel had been
drinking alcohol during that day. As mentioned, Mr. Peel and Mr. Chouinard
had been drinking at the nearby golf course over lunch, there was more drinking
on their return to the Centennial Drive house and there is further evidence
that Mr. Peel was under the influence of drugs. After Mr. Peel
returned with the shot glasses, the evidence is clear that in the evening there
were a number of people present at the party and that there was drinking at the
party.

[107]    
In Morrison v. Cormier Vegetation Control, [1996] B.C.J. No. 2601
(C.A.) [Morrison] at para. 24, Goldie, J.A. stated:

It is apparent the legislature
has imposed a heavy burden on those who have within their power the control of
motor vehicles. In the language of the old authorities the mischief aimed at is
the perceived irresponsibility of owners in their control of the possession of
motor vehicles. The reason for legislative intervention may be traced, in part
at least, to the appalling consequences of reckless use of motor vehicles.
Irresponsibility on the part of those who may deny or confer possession of
motor vehicles may be seen as the reason for the legislative initiative. The
legislation in question must be regarded as remedial.

[108]     The
quotation of Goldie, J.A. has been referred to often and was recently cited in
the Court of Appeal decision of Snow (Committee of) v. Friesen, 2010 BCCA 416.

[109]    
The Morrison decision also included a discussion of how the
availability of keys to the vehicle and the “free exercise of the owner’s will”
can amount to express consent under then section 79(1) of the Motor Vehicle
Act (now section 86 (1)). In that case, the defendant driver was employed
as a salesman by the defendant car dealership. As a salesman, the driver had
access to the spare keys to vehicles in stock at the dealership for the purpose
of demonstration of vehicles to customers of the dealership. The salesman,
contrary to the policy of his employer, took a luxury vehicle to an out-of-town
auto show without the knowledge of the employer. At paras. 27 and 28
Goldie, J.A. stated:

[27]      Possession of an automobile is acquired with the
transfer of the means of control. The vehicle itself may be, say in a parking
lot, but when keys which enable their possessor to enter and operate the
vehicle, wherever it may be, possession is acquired within the meaning of
s-s 79(1) of the Motor Vehicle Act. The transfer of the means of
possession – the keys to open and operate the vehicle – convey the required
degree of exclusivity of control. Cf: Holt v. Dawson, [1939] 3 All E.R. 635
(C.A.). I emphasize that in the case at bar there has been express consent to
the Employee acquiring control of certain automobiles through the availability
of the keys; the custody of the D plates and the key to the place where they
were kept. This consent, as contrasted with instructions of use, was never
revoked or limited.

[28]      The arrangements
described in detail by the trial judge alter the principle of statute. Carter,
by the “free exercise of the owner’s will” enabled the Employee to acquire
possession of the white Alfa on 23 May 1993 and whether the use to which he put
it thereafter was one of which Carter would approve is immaterial if, in his
driving or operation of the vehicle, he was at fault.

[110]     In the
case at bar, Mr. Chouinard agreed he had, on previous occasions, consented
to Mr. Peel driving the Explorer and Mr. Peel was made aware of where
the keys could be located, that is, in Mr. Chouinard’s bedroom, on his
person or in the “junk drawer” in the kitchen of the house. Mr. Peel
testified that the keys were “usually in the junk drawer” or “he (Mr. Chouinard)
would hand me keys or tell me where they were”. The two letters found in the
Explorer by the RCMP after the accident, both addressed to Mr. Peel, one
of which was to the address on Centennial Drive, amount to further evidence
that Mr. Peel had been using the Explorer on prior occasions. The evidence
presented at trial leads me to find that there was no agreement between Mr. Chouinard
and Mr. Peel that required Mr. Peel to specifically ask to drive the
car on each and every occasion.

[111]     Additionally,
Mr. Peel’s practice, based on his own evidence, was to return the keys to
the kitchen, either in the drawer or on the counter above, which is what he did
on returning to the house on August 15, 2007 after using the Explorer to pick
up the shot glasses. Mr. Chouinard made no attempt to take away or hide
the keys from Mr. Peel during the early evening of August 15, 2007. When Mr. Peel
got into an argument with Mr. Chouinard during the party that evening, the
keys were still in the kitchen drawer where they had been placed not long
before. The evidence shows that he took the keys and proceeded to back out
towards the road. I accept that Mr. Chouinard either saw Mr. Peel
leave or was made aware that he had left soon thereafter.

[112]     I find
that on August 15, 2007, Mr. Chouinard voluntarily handed the keys to the
Explorer to Mr. Peel to enable Mr. Peel to drive to pick up some shot
glasses. At that time, Mr. Chouinard knew that Mr. Peel had been
drinking that day and he also knew that Mr. Peel continued drinking at the
Centennial Drive house into the evening. Mr. Chouinard never asked for the
keys to be returned to him. Instead, they remained in place accessible to Mr. Peel.
I am satisfied on balance that Mr. Chouinard never revoked the express
consent he had given to Mr. Peel earlier in the day.

[113]     Having
found Mr. Chouinard expressly consented to Mr. Peel driving the
Explorer that day, there is no need to consider any implied consent.

VII.          
Conclusion

[114]    
The claims against Ms. Scott, Ms. Catala and Mr. Good are
dismissed. Having found that Mr. Chouinard consented to Mr. Peel
driving the Explorer, Mr. Chouinard is liable pursuant to s. 86 of
the Motor Vehicle Act.

“The Honourable Mr.
Justice Jenkins”