IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141128

Docket: M67424

Registry:
Nanaimo

Between:

Biserka
Glavica

Plaintiff

And:

Patrick
Lott

Defendant

Before: The Honourable Madam
Justice Watchuk

Reasons for Judgment

I.                
INTRODUCTION

[1]            
On the evening of September 3, 2011 a motor vehicle collision
between the plaintiff, Biserka Glavica, and the defendant, Patrick Lott
occurred on Zorkin Road, which is the exit road from the Departure Bay ferry
terminal in Nanaimo, B.C.

[2]            
This trial was limited to the determination of liability.

[3]            
It is the plaintiff’s position that the defendant, on turning left on to
the exit road from a parking lot, caused his vehicle to collide with the left
side of her vehicle.  She submits that the defendant is 100% at fault for the
collision.

[4]            
The defendant submits that the plaintiff suddenly changed lanes into his
lane of travel and that she is therefore liable for the collision.  In the
alternative, he submits that the plaintiff was contributorily negligent because
she did not see him, a potential hazard, waiting at the stop sign to exit the
parking lot.

II.              
THE EVIDENCE

A.             
Facts Not in Dispute

[5]            
The following evidence is not in dispute.  The disputed evidence will be
set out below in the evidence of both parties and the two witnesses.  Where
findings of disputed fact must be made, they will be addressed in the analysis.

[6]            
In order to determine liability, one fact which must be determined is whether
Ms. Glavica was driving in the left or right hand lane of Zorkin Road at
the time that Mr. Lott drove past the stop sign and exited the parking
lot.

[7]            
September 3, 2011 was the Saturday night of the Labour Day long
weekend.  The collision occurred in the evening at approximately 9:30 p.m. 
The roads were dry and it was dark but Zorkin Road has streetlights.

[8]            
The plaintiff’s daughter, Faith Siklic, had been in Vancouver that day
for a shopping trip with Helen Bergstrom, a local chiropractor, and her two
daughters.  Dr. Bergstrom and the three girls were returning from
Vancouver by ferry to Departure Bay in Nanaimo.

[9]            
The plaintiff picked up the group at the Departure Bay ferry terminal. 
She was driving her 2009 Pontiac G3 hatchback.  As she arrived late, there was
no other traffic leaving or arriving at the terminal at the time of the collision. 
They were the last people to leave the terminal.

[10]        
During the drive, Dr. Bergstrom was the front passenger.  Faith
Siklic sat in the rear middle seat and Dr. Bergstrom’s daughters sat in
the rear left and rear right seats.  The rear seat passengers did not witness
the collision.

[11]        
From the foot passenger pick-up area of the terminal, the exit road
makes a 90° turn to the left and then becomes Zorkin Road.  Zorkin Road curves
to the right shortly before reaching the intersection with Stewart Avenue. 
Zorkin Road has two lanes of travel heading away from the ferry terminal toward
Stewart Avenue and one lane of travel in the opposite direction.  The two lanes
heading away from the terminal are separated by a broken line road marking in
the area of the collision.

[12]        
Near the end of the right hand curve there is an exit from a parking lot
on the left side of Zorkin Road.  There is a stop sign at that exit.  The
parking lot contains several businesses, including Beefeater’s Restaurant and
Miller’s Landing Pub.

[13]        
Past the parking lot exit near the Stewart Avenue intersection, the two
lanes on Zorkin Road split into four lanes: two left turn lanes, one lane for
travel straight through the intersection, and one lane for travel straight
through the intersection or turning right.  The left lane divides into the two
left turn lanes and the right lane divides into the latter two lanes.  Zorkin
Road then becomes Brechin Road on the other side of Stewart Avenue.

[14]        
Mr. Lott met his friend Brendan Lindgren for dinner at Beefeater’s
Restaurant near the ferry terminal between 5:30 and 6:00 p.m.  Mr. Lindgren
had been out boating that day.  After using the boat launch near the ferry
terminal that evening, Mr. Lindgren phoned the defendant and invited him
for dinner.  They left the restaurant shortly before 9:30 p.m.

B.             
The Plaintiff’s Evidence

[15]        
Ms. Glavica was very familiar with the area because she had worked
for B.C. Ferries out of the Departure Bay terminal for approximately six months
in 2006 or 2007.  She drove that stretch of Zorkin Road regularly during that
period.  She knew that she had to be in the left lane before the lanes split to
access the left turn lanes at the intersection in order to drive Dr. Bergstrom
and her children home and then go to her home.

[16]        
The plaintiff and Dr. Bergstrom testified that the plaintiff was
driving in the left lane on Zorkin Road well before the collision.  Both gave
evidence that the plaintiff changed into the left lane before the 90° curve to
the left on the exit road from the terminal, and that she remained in that lane
until the collision.  She was travelling at 20 to 25 km/h in a 30 km/h
zone.

[17]        
Shortly after passing the exit from the parking lot, as Dr. Bergstrom
was turned to the left at about 45°
and looking behind to speak with her daughter, she saw the defendant’s
vehicle coming toward them fast.  There was no time to react other than to
shout something.  The plaintiff heard her exclaim “Wow wow” and then
immediately heard the boom of the defendant’s vehicle hitting hers.  The
plaintiff did not see the defendant’s vehicle before the collision, but Dr. Bergstrom
had a direct view of the defendant’s vehicle.  The left rear side of the
plaintiff’s vehicle was struck by the front right corner of defendant’s vehicle
which had approached from the left rear.

[18]        
Dr. Bergstrom testified that the plaintiff was travelling in the
left lane prior to the collision, and that she was not making a lane change.

[19]        
The photographs of the plaintiff’s vehicle show damage to the rear
portion of its left side, while the photographs of the defendant’s vehicle show
damage to its front right corner below the headlight.  The plaintiff submits
that the vehicle damage is consistent with the testimony of Dr. Bergstrom
and the plaintiff.

C.             
The Defendant’s Evidence

[20]        
The defendant testified that as he was stopped at the stop sign leaving
the restaurant parking lot, he saw the plaintiff’s vehicle approaching on
Zorkin Road from the right in the right lane.  There was no other traffic in
either direction.  He made a safe left turn crossing the sidewalk and the
oncoming lane and was fully in the left lane.  He had changed into second
gear.

[21]        
The plaintiff passed him in the right lane then swerved into his lane. 
She did not do a shoulder check.  The collision occurred when the plaintiff’s
vehicle made contact with the right side of his front bumper and quarter panel
of his Chevy Cavalier.

[22]        
The defendant’s friend, Mr. Lindgren, testified on behalf of the
defendant.  He and the defendant have known each other since meeting in school
in approximately 2002.  They have remained friends since.

[23]        
Mr. Lindgren and the defendant left in separate vehicles from the
parking lot with the defendant leaving first and Mr. Lindgren stopping
behind him at the stop sign at the exit.  Mr. Lindgren testified that he
saw the plaintiff sideswipe the defendant’s vehicle when the defendant pulled
out from the parking lot onto the left lane of Zorkin Road.

[24]        
 Mr. Lindgren testified that he then backed up and parked in the
parking lot, then went to the scene of the collision.  He asked if everyone was
okay.  The defendant says that Mr. Lindgren was through the intersection
and parked on Brechin Road and that they texted later.  Neither the plaintiff
nor Dr. Bergstrom saw Mr. Lindgren or his vehicle near the scene of
the collision.

III.            
THE LAW

A.             
Statutory Provisions

[25]        
The relevant statutory provisions are sections 144, 151, 175, 176,
and 186 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, [the “MVA”]
which are set out below:

Careless driving prohibited

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

(a)  without due care and attention,

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

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

(2)  A person who contravenes subsection
(1) (a) or (b) is liable on conviction to a fine of not less than $100 and,
subject to this minimum fine, section 4 of the Offence Act applies.

Driving on laned roadway

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

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

(b)  must not drive it from one lane to
another if that action necessitates crossing a solid line,

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

Emerging from alleys

176(1)  The driver of a vehicle in a
business or residence district and emerging from an alley, driveway, building
or private road must stop the vehicle immediately before driving onto the
sidewalk or the sidewalk area extending across an alleyway or private driveway,
and must yield the right of way to a pedestrian on the sidewalk or sidewalk
area.

(2)  The driver of a vehicle about to
enter or cross a highway from an alley, lane, driveway, building or private
road must yield the right of way to traffic approaching on the highway so
closely that it constitutes an immediate hazard.

Stopping at intersections

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.

B.             
Credibility and Reliability

[26]        
As the issue of liability arises from the different versions of events
presented by the witnesses, an assessment of the credibility and reliability of
the witnesses is necessary.

[27]        
The approach to the assessment of credibility is set out in Hardychuk
v. Johnstone, 2012 BCSC 1359 at paras. 8-10 as follows:

[8]        The factors to be
considered when assessing credibility were summarized by Dillon J. in Bradshaw
v. Stenner, 2010 BCSC 1398, as follows:

186      Credibility involves an assessment of the
trustworthiness of a witness’ testimony based upon the veracity or sincerity of
a witness and the accuracy of the evidence that the witness provides (Raymond
v. Bosanquet (Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)).  The
art of assessment involves examination of various factors such as the ability
and opportunity to observe events, the firmness of his memory, the ability to
resist the influence of interest to modify his recollection, whether the
witness’ evidence harmonizes with independent evidence that has been accepted,
whether the witness changes his testimony during direct and cross-examination,
whether the witness’ testimony seems unreasonable, impossible, or unlikely,
whether a witness has a motive to lie, and the demeanour of a witness generally
(Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont. H.C.); Faryna v. Chorny,
[1952] 2 D.L.R. 152 (B.C.C.A.) [Faryna]; R. v. S.(R.D.), [1997] 3
S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of the evidence
depends on whether the evidence is consistent with the probabilities affecting
the case as a whole and shown to be in existence at the time (Faryna at
para. 356).

[10]      The typical starting
point in a credibility assessment is to presume truthfulness: Halteren.
Truthfulness and reliability are not, however, necessarily the same.  A
witness may sincerely attempt to be truthful but lack the perceptive, recall or
narrative capacity to provide reliable testimony.  Alternatively, he or she may
unconsciously indulge in the human tendency to reconstruct and distort history
in a manner that favours a desired outcome.  There is, of course, also the
possibility that a witness may choose, consciously and deliberately, to lie out
of perceived self-interest or for some other reason.  Accordingly, when a
witness’s evidence is demonstrably inaccurate the challenge from an assessment
perspective is to identify the likely reason for the inaccuracy in a cautious,
balanced and contextually sensitive way.

[28]        
If all witnesses appear credible, the following principle set out in Hou
v. McMath, 2012 BCSC 257 at para. 27 is applicable:

[27]      When all witnesses
appear credible, and it is difficult to choose between two possible scenarios,
it is not enough to say the plaintiff has not made out her case.  As the trial
judge, I must go on to consider from an objective basis, which scenario is more
in harmony with the preponderance of probabilities: Faryna v. Chorny
(1951), [1952] 2 D.L.R. 354, 4 W.W.R. (N.S.) 171.  See also Gariepy v.
Ritchie, [1993] B.C.J. No. 2304, 1993 CarswellBC 2058 (S.C.).

C.             
The Plaintiff’s Submissions

[29]        
In applying these principles, the plaintiff submits that her testimony
and that of Dr. Bergstrom is more credible, reliable and in harmony with
the preponderance of probabilities than that of the defendant or Mr. Lindgren. 
In support of that conclusion the plaintiff submits:

(a)           
The plaintiff was a very credible witness.  She has a clear recollection
that she was driving in the left lane well before the Collision occurred and
prior to passing the exit from the parking lot.

(b)           
The plaintiff knew the area and the traffic patterns well.  She had
previously worked for BC Ferries for six months in 2006 or 2007 and drove that
same stretch of Zorkin Road regularly during that time.  She had driven past an
overhead sign at the beginning of Zorkin Road which says to “KEEP LEFT” [in]
order to go South.  She was planning to turn left onto Stewart Avenue and knew
that she needed to be in the left lane in order to access the left turning
lanes at the intersection.  It does not accord with common sense to suggest
that the plaintiff, having such knowledge of the area and knowing her
destination, would be driving in the right lane all the way from the ferry
terminal and then suddenly change lanes at the last moment right before the
intersection.

(c)           
Dr. Bergstrom is the only truly independent witness to the Collision. 
Neither she nor her daughters were injured or have any claims of their own
regarding the Collision.  She is merely an acquaintance, not a friend, of the
plaintiff.  She has no interest in the outcome of this matter.

(d)           
Dr. Bergstrom’s evidence was clear, straightforward, and entirely
consistent with the evidence given by the plaintiff.

(e)           
Dr. Bergstrom had turned to speak to her daughter in the rear left
seat at the time of the Collision.  She saw the defendant’s car drive quickly
into the side of Ms. Glavica’s car.  She confirms that the plaintiff was
travelling in the left lane well before the Collision.

(f)             
The defendant suggests that the plaintiff drove by him in the right lane
after he had pulled into the left lane.  He asserts that the plaintiff drove
past nearly the full length of [his] vehicle, apparently without the plaintiff
or Dr. Bergstrom noticing his vehicle, and then made a sharp lane change
into the front right corner of his car.  All of this, the defendant alleges,
occurred within about two to three car lengths of the exit from the parking
lot.  He had just shifted into second gear.  It is submitted that the defendant’s
version of events is highly implausible.  A much more likely explanation is
that the defendant was simply mistaken about which lane the plaintiff was
travelling in when he pulled out.  It was dark and he made a mistake in
judgment.

(g)           
The defendant’s testimony at trial was significantly different than his
examination for discovery evidence regarding Mr. Lindgren’s actions after
the Collision.  At the examination for discovery of March 28, 2014, less
than three months ago, he stated in precise detail that Mr. Lindgren had
pulled out from the stop sign, drove past the scene of the collision, went
through the intersection, pulled over onto the shoulder of Brechin Road 10-20
metres past the intersection, turned on his hazard lights and observed the
parties through his tinted rear truck window (Mr. Lindgren testified that
his rear window was not tinted).  At trial, the defendant initially testified
that he did not recall what Mr. [Lindgren] did after the Collision.  In
cross-examination, he agreed that his evidence at the discovery was accurate,
including the fact that Mr. Lindgren did not get out of his vehicle after
the Collision.

(h)           
Mr. Lindgren has been a close friend of the defendant for more than
a decade.  He is not a truly independent witness.  His evidence at trial was
not just casual.  It was flippant and cavalier.  He did not [take] these
proceedings or his role in them seriously.

(j)             
Mr. Lindgren testified that, at the time of the Collision, he was
even further back from stop sign than the view shown in Exhibit 2, Tab 4. 
Although he was adamant in cross-examination that he could see cars coming from
the right along Zorkin Road from that location, that contention is not
consistent with the photographic evidence.  His view of traffic approaching
from the right would clearly have been blocked by the building located to the
right of the stop sign.  The defendant himself agreed that he did not have a
good view of the traffic coming around the corner on Zorkin Road until he
pulled right up to the stop sign.  Therefore, the plaintiff submits that Mr. Lindgren
did not have an adequate opportunity to accurately determine which lane Ms. Glavica
was travelling in as she approached the parking lot exit on Zorkin Road.

(k)           
Mr. Lindgren testified that the Collision occurred as soon as the
defendant pulled out from the stop sign.  Mr. Lindgren says it happened so
fast that he did not have time to pull up to the stop sign himself.  That short
timeline is more consistent with the plaintiff’s version of events than that of
the defendant.

(l)             
Mr. Lindgren testified that, after the Collision, he parked his
truck in the parking lot directly across from the area where plaintiff’s and
defendant’s vehicles were stopped on Zorkin Road.  He stated that he got out of
his truck and stood beside it but did not approach the parties.  Contrary to
the signed statement that he provided to ICBC on September 15, 2011 in
which he said “I did not hear their conversation”, Mr. Lindgren testified
at trial that he was able to hear “exactly” the conversations of the parties at
the scene.  Neither the plaintiff, Dr. Bergstrom, nor the defendant recall
Mr. Lindgren standing anywhere near the scene, let alone close enough to
hear their conversations.

(m)         
There were various inconsistencies between the evidence of the defendant
and that of his own witness, Mr. Lindgren.  For example, the defendant
says that he did not have any conversations or communications with Mr. Lindgren
at the scene of the Collision.  He says that they communicated via text
messages later that evening after they both had left the area.  Mr. Lindgren,
on the other hand, testified that he went onto Zorkin Road and helped the
defendant replace the headlight that had detached from the defendant’s car in
the Collision.  Mr. Lindgren denied communicating with the defendant by
phone or text message that evening.

D.             
The Defendant’s Submissions

[30]        
The defendant’s submissions are focused primarily on the relevant legal
principles rather than on the specific facts of this case.  The defendant made
the following arguments:

(a)           
Based on his position, the defendant had a clear view of the plaintiff’s
vehicle as it drove towards the location where the collision took place.

(b)           
The plaintiff clearly testified that she did not see the defendant’s
vehicle because she had her eyes on the road.  She should have been checking to
see if any vehicles were exiting or preparing to exit from the parking lots.  Her
testimony indicates that the plaintiff failed to scan the area for potential
hazards as she was driving.

(c)           
Dr. Bergstrom, the passenger in the plaintiff’s vehicle, saw the
defendant’s vehicle and exclaimed “wow wow” before the collision.  If the
plaintiff had been using due care and attention, she should have been able to
see what her passenger was seeing.

IV.           
ANALYSIS

[31]        
It is first necessary to determine the factual issue of the lane in
which Ms. Glavica was driving.  If she was driving in the right lane as
the defendant alleges, the collision occurred when she changed lanes.  If,
however, her lane of travel was the left lane, the collision occurred when the
defendant collided with her as he entered that lane.

[32]        
The nature of the vehicle damage does not assist either party’s position
since the damage is consistent with both versions of events that they have put
forth.  The damage could have been caused by the fault of either party.

[33]        
The evidence of the plaintiff and Ms. Bergstrom was clear,
internally and externally consistent and unimpeached on cross-examination.  I
prefer the evidence of the plaintiff where it differs from that of the
defendant.

[34]        
The plaintiff was familiar with the area and knew where she had to turn
left at Stewart Avenue.  I find as fact that she was in the left lane as she
approached the intersection to make that left turn.

[35]        
The defendant’s actions on his evidence that he turned into the left
lane when the plaintiff was in the right lane at that location are not
indicative of careful driving but of haste.  There were no other vehicles on
the road at the time.  If his intention was as stated to make a safe left turn
into the left lane, there was no need for haste when seconds later the
plaintiff’s vehicle would have passed by and the road would be clear.  This was
not a situation where a driver was attempting to fit into a line of traffic.

[36]        
I further find that the evidence of Mr. Lindgren is not reliable.  He
did not appear to appreciate the seriousness of these court proceedings.  His
opportunity to observe was impaired.  While waiting near the stop sign, his
line of vision to the right was partially blocked by a shed to the right of the
stop sign.  It is highly unlikely that he would have seen the plaintiff’s
vehicle approaching from his vantage point behind the defendant’s vehicle.  I
find that, at best, he was mistaken about the nature of the collision.

[37]        
The defendant exited quickly having changed into second gear in the
short distance between the stop sign and the left lane.  I find that in his
haste he was mistaken as to the location of the plaintiff’s vehicle, which was
in the left lane as it had been for some distance prior to the collision.

[38]        
I find that the defendant’s vehicle hit the plaintiff’s vehicle as the
plaintiff’s vehicle was travelling in the left lane and the defendant attempted
to enter the lane in which her vehicle was located.

[39]        
The defendant also cites s. 151(b) of the MVA and submits that
Ms. Glavica breached that provision when she crossed a solid line.  This
argument is based on Ms. Glavica’s testimony that she changed lanes before
the 90° turn on the exit
road and crossed a solid line while doing so.  Although I have found as fact that
Ms. Glavica did cross a solid line at that time, no liability flows from
that lane change because it was not a cause of the collision.

[40]        
Section 144(1)(a) and (b) of the MVA prohibit driving a
motor vehicle on a highway without due care and attention, or without
reasonable consideration for other persons using the highway.

[41]        
Section 186 of the MVA requires a driver of a vehicle to
stop at a stop sign at an intersection.  In this case, there was a stop sign at
the exit of the parking lot.  Since there was no marked stop line or marked
crosswalk, the defendant was required to stop, pursuant to s. 186(c),
before entering the intersection, at the point nearest the intersecting highway
from which he had a view of approaching traffic on the intersecting highway.

[42]        
Once the defendant stopped pursuant to s. 186 to wait to enter the
highway, s. 176 of the MVA was engaged and required him to yield
the right of way to traffic on the highway which was approaching so closely
that it constituted an immediate hazard.  The plaintiff’s vehicle constituted
an immediate hazard when the defendant turned onto Zorkin Road.  Hers was the
dominant vehicle.

[43]        
In this case the public parking lot driveway leading up to the stop sign
falls within the meaning of “driveway” in s. 176 of the MVA.  Therefore,
s. 176(2) required the defendant to yield the right of way to any traffic
approaching on Zorkin Road so closely that it constituted an immediate hazard,
in this case, the plaintiff’s vehicle.

[44]        
I find that the defendant’s car was stopped at the stop sign.  He was
not doing anything out of the ordinary to alert the plaintiff that he would
leave the stop sign and enter her lane.  The plaintiff had the right of way and
was entitled to assume that the defendant would yield.

[45]        
I further find that the defendant’s vehicle struck the rear left side of
the plaintiff’s vehicle, which is consistent with the defendant not leaving the
stop sign until the plaintiff was already passing the exit.

[46]        
Finally, I find that Dr. Bergstrom only witnessed the collision
because she was turned toward the back of the plaintiff’s vehicle when the
collision occurred.  The plaintiff did not have any reasonable opportunity to
avoid the collision.

[47]        
In these circumstances the defendant’s conduct fell below the standard care
required of a reasonably careful and prudent driver.  He was driving without
due care and attention and without due regard for other users of the roadway. 
He left the stop sign, failed to yield to a closely approaching vehicle which
was an immediate hazard, and collided with the plaintiff’s vehicle.  I find the
defendant liable for the collision which was the cause of the plaintiff’s
ensuing damages.

[48]        
Regarding the allegation of contributory negligence, the burden is on
the defendant to establish that the plaintiff had a sufficient opportunity to
avoid the collision if she had been driving prudently (Scholpp v. Porter et
al., 2002 BCSC 1372 at para. 8).  Put another way, the defendant
must prove that the plaintiff’s failure to take reasonable care, if any, was a
proximate cause of the collision.

[49]        
In Scholpp, Madam Justice Stromberg-Stein, as she then was,
considered the obligations of a driver who has stopped at a stop sign at an
intersection.  That driver must yield the right of way to traffic that has
entered the intersection or is approaching so closely that it constitutes an
immediate hazard (para. 8).  Users of the highway are entitled to proceed
on the assumption that other users will observe the traffic regulations. 
Although the right to drive on that assumption is not absolute, there is no
obligation to maintain special preparation for unseen emergencies or mere
possibilities (para. 8).  A standard of perfection is not imposed on every
driver that requires the driver to be on the lookout for every conceivable
eventuality (para. 18).

[50]        
In Niloufari v. Movahedi, 2014 BCSC 680, the plaintiff made
a right-hand turn to enter the highway from a parking lot.  He made a wide turn
to get past parked cars, and in doing so, his front driver’s side struck the side
of the defendant’s vehicle as it went past the exit in the opposite direction
(para. 37).  Pursuant to s. 176(2) of the MVA, the defendant
was the dominant driver having the right of way.  Madam Justice Fitzpatrick
found that the defendant did absolutely nothing to contribute to the accident
because she was entitled to assume that the plaintiff would remain stopped and
allow her vehicle to pass by, unless he could make his turn safely (para. 43). 
The Court also found that the defendant’s vehicle was “clearly an immediate
hazard by reason of the fact that the collision occurred” (para. 43).

[51]        
The plaintiff, like the defendant in Niloufari, was entitled to
assume that Mr. Lott would not leave the parking lot exit until she had
passed by him and his turn could be made in safety.  The plaintiff’s vehicle
was clearly an immediate hazard and Mr. Lott was required to yield to her.

[52]        
The plaintiff had the right of way while
the defendant was at the stop and she was entitled to assume that the defendant
would yield.  The defendant made a left turn and rapidly speeded up into second
gear.  The evidence indicates that the accident happened very quickly.  In
these circumstances I do not find that Ms. Glavica breached the standard
of care of a reasonably prudent driver by failing to respond to the defendant’s
driving. 

[53]        
There is no evidence that the plaintiff caused or contributed to the collision.
Therefore, the defendant is solely at fault for the collision.

[54]        
Liability is therefore assessed 100% to the defendant.

[55]        
The plaintiff is entitled to her costs on Scale B unless there are
matters of which I am unaware.  If either party wishes to make submissions as
to costs, submissions may be made in writing within 30 days of today’s date
with reply 15 days thereafter.

“The Honourable
Madam Justice Watchuk”