IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150319

Docket: 49512

Registry:
Kamloops

Between:

Isobel Lapointe

Plaintiff

And

John Doe, Jane Doe
and
Insurance Corporation of British Columbia

Defendants

Before:
Master McDiarmid

Reasons for Judgment

[1]            
This is an application by the plaintiff for summary judgment on the
liability issues in this action.

[2]            
The factual basis underlying this application is set out in Part 2 of
the notice of application at paragraphs 1-9 as follows:

1.     This
action arises out of a motor vehicle accident which occurred on May 9, 2013, on
Highway 1 at or near Hilltop Gardens Farm and Campground, approximately 7
kilometres from Spence’s Bridge, British Columbia.

2.     At all
material times, the plaintiff was the driver of a 2003 Hyundai Elantra bearing
British Columbia license plate number 965 DXD (the “Elantra”), travelling
southwest on Highway 1.

3.     At
approximately 2:30 pm at or near Hilltop Gardens Farm and Campground, a large
white pick-up truck towing a trailer (the “Truck”) crossed the double yellow
centreline, recklessly forced the Elantra over the shoulder of the road where
it rolled over and came to rest on its roof (the Accident”).

4.     At the
site of the Accident, Highway 1 is a three-lane highway, with one lane for
southwest traffic, and two lanes for northeast traffic. The southwest and
northeast lanes are separated by a double yellow centreline and passing is
prohibited by posted traffic signs.

5.     There were
no witnesses to the Accident. The plaintiff saw the male driver of the Truck
when the Truck was beside the Elantra, but she was unable to determine the
identity of the driver, the precise make or model of vehicle, or the license
plate number of the Truck.

6.     As a
consequence of the Accident, the plaintiff alleges she has sustained injuries
and loss, particulars of which are not limited to but include the following:

a.         injury to her neck,
including fractured vertebrae;

b.         injury to her back;

c.         injury to her ribs,
including fractured ribs;

d.         injury to her left hand;

e.         injury to her left
wrist;

f.          injury to her left
foot;

g.         headaches;

h.         sleep disturbance;

i.          depression; and

j.          anxiety

7.     The
plaintiff was in hospital in Kamloops, British Columbia, and then convalesced
at her daughter’s home in Kamloops so that she could attend follow up
appointments at the hospital, until approximately July, 2013, when she returned
to Spence’s Bridge to continue her recovery. The Accident was reported to ICBC
by the plaintiff’s daughter the day after the Collision, on May 10, 2013.

8.     In an
attempt to determine the identity of the Unknown Motorist, in the summer of
2013 the plaintiff inquired with the Lytton R.C.M.P. detachment, and posted
signs on the bulletin boards in Spences Bridge, Merritt and Lytton. She also
inquired with local people who may have witnessed or have knowledge of the
Truck. Upon retaining the law firm of HMZ Law, the plaintiff posted two ads in
the Ashcroft Cache Creek Journal newspaper on November 14, 2013 and November
21,2013.

9.    
No response was received to these attempts to ascertain the identity of
the Unknown Motorist of the Truck.

[3]            
The notice of civil claim, in paragraphs 2 and 3, sets out that the
defendants are an unknown owner and unknown driver, and that the Insurance
Corporation of British Colombia (“ICBC") is named as a nominal defendant
pursuant to s. 24 of the Insurance (Vehicle) Act, R.S.B.C., 1996 c. 231.
There are prerequisites to bringing and succeeding in an action against ICBC as
set out in ss. 24(2) and (5) as follows:

(2) Proceedings must not be brought against the corporation
as nominal defendant under this section unless the person bringing them gives
written notice to the corporation as soon as reasonably practicable and in any
event within 6 months after the accident that caused the bodily injury, death
or property damage.

(5) In an action against the corporation as nominal
defendant, a judgment against the corporation must not be given unless the
court is satisfied that

(a) all reasonable efforts have
been made by the parties to ascertain the identity of the unknown owner and
driver or unknown driver, as the case may be, and

(b) the identity of those persons or that person, as the
case may be, is not ascertainable.

[4]            
In addition to satisfying the requirements of s. 24(2) before commencing
proceedings and satisfying the requirements of s. 24(5), the plaintiff must
also, of course, prove the general issue of negligence, in particular the
negligent driving of the unknown driver.

[5]            
In its response to civil claim, ICBC has denied that the defendants,
John Doe and/or Jane Doe, or the registered owner and/or negligent driver of
the unknown motor vehicle, have denied that the accident referred to in the
notice of civil claim was caused by the unidentified motorist, and have denied
all of the facts in the notice of civil claim relating to allegations of
negligence against an unknown driver. They have denied that the accident was
caused by the unidentified motorist and have alleged that at the time of the accident
the plaintiff was negligent and have set out detailed particularization of the
allegations of the plaintiff’s negligence.

[6]            
In its response to civil claim, Part 3: Legal Basis, at paragraph 2,
ICBC pleads as follows:

2.         In answer to the whole of the
Notice of Civil Claim herein, if an accident occurred either as alleged or at
all, and if the identity of the owner/driver of the vehicle alleged to have
struck that of the Plaintiff is not ascertainable, either as alleged or at all,
none of which is admitted but denied, this Defendant says that the Plaintiff
did not make all reasonable efforts to ascertain the identity of the person or
persons hereinbefore referred to and this Defendant says that by reason of that
failure to make all reasonable efforts to ascertain the identity or identities
of the persons hereinbefore mentioned, the Plaintiff is not entitled to
indemnity from this Defendant and this Defendant pleads and relies upon Section
24(5) of the Insurance (Vehicle ) Act, R.S.B.C. 1996, c. 231.

[7]            
By its notice of application, the plaintiff is seeking determination of
two issues:

a)    whether she has
satisfied the requirements of s. 24(5); and

b)    whether she has
established liability against the defendants for the negligence (negligent
driving) as she alleges caused the accident.

[8]            
This application is brought pursuant to Rule 9-6(2) and (5) of the Supreme
Court Civil Rules, B.C. Reg. 168/2009, which reads as follows:

Application

(2) In an action, a person who files an originating pleading
in which a claim is made against a person may, after the person against whom
the claim is made serves a responding pleading on the claiming party, apply
under this rule for judgment against the answering party on all or part of the
claim.

Power of court

(5) On hearing an application under subrule (2) or (4), the
court,

(a) if satisfied that there is no
genuine issue for trial with respect to a claim or defence, must pronounce
judgment or dismiss the claim accordingly,

(b) if satisfied that the only
genuine issue is the amount to which the claiming party is entitled, may order
a trial of that issue or pronounce judgment with a reference or an accounting
to determine the amount,

(c) if satisfied that the only
genuine issue is a question of law, may determine the question and pronounce
judgment accordingly, and

(d) may make any other order it considers will further the
object of these Supreme Court Civil Rules.

[9]            
In its application response, ICBC opposes the application. It sets out
the legal basis for its opposition at paragraphs 2-7 as follows:

2.         The
facts set out in Part 4 of this Response to Application, and in the affidavits
relied upon by both the Plaintiff and the defendant, ICBC, are sufficient to
suggest triable issues with regard to both liability and the plaintiffs obligations
under s. 24(5) of the Insurance (Vehicle) Act. Consequently, this matter
is not appropriate for resolution by way of summary judgment.

3.         Mr.
Justice Savage in Haghdust v. British Columbia Lottery Corp., 2011 BCSC
1627 (B.C. S.C.), leave to appeal to BCCA refused, Haghdust v. British
Columbia Lottery Corp., 2012 BCCA 120 (B.C. C.A. [In Chambers]) described
Rule 9-6 as follows:

The Rule provides that if a Court is "satisfied that
there is no genuine issue for trial with respect to a claim or defence",
the Court "must pronounce judgment or dismiss the claim accordingly: Rule
9-6(5)(a). In my view, this standard, that there is "no genuine issue for
trial" is no different than the "bona fide triable issue"
standard under the old rule. Thus, for a claim to be dismissed on a summary
judgment application, it must be manifestly clear that there is no matter to be
tried: Progressive Construction Ltd. v. Newton (1981), 25 B.C.L.R. 330
(S.C.).

4.         The court in Skybridge
Investments Ltd. v. Metro Motors Ltd. (c.o.b. Metro Ford), 2006 BCCA 500
(CanLII), stated:

[12]…The judge’s function is limited
to a determination as to whether a bona fide triable issue arises on the
material before the court in the context of the applicable law. if a judge
ruling on a Rule 18(6) application must assess and weigh the evidence to
arrive at a summary judgment, the "plain and obvious" or "beyond
a doubt" test has not been met.

[emphasis added]

5.         This
action arises out of a claim made pursuant to section 24(1) of the Insurance
(Vehicle) Act. For a claim pursuant to section 24(1) to be successful, the
requirements of section 24(5) must be met. Section 24(5) of the Insurance
(Vehicle) Act states:

(5) In an action
against the corporation as nominal defendant, a judgment against the
corporation must not be given unless the court is satisfied that

(a)        all
reasonable efforts have been made by the parties to ascertain the identity of
the unknown owner and driver or unknown driver, as the case may be, and

(b)        the identity of those persons
or that person, as the case may be, is not ascertainable.

6.         In Houniet
v. ICBC, [1992] B.C.J. No. 692 (S.C.)(GL), Sheppard Co. Ct. J. described
the purpose of s. 24(5) of the Insurance (Vehicle) Act [then s. 23(5)]
at paragraph 23:

It is an attempt to discourage persons who
have suffered damage or injury as a result of their own negligence trying to
recover compensation for that damage or injury by inventing an unknown driver
of another vehicle on whom they can blame the accident. In every case where a
claim is made under section [24], a suspicion will exist that the unknown
driver has been “invented”.

7.         In this case, there were no
witnesses to the accident. The only evidence implicating an unidentified
vehicle comes from the Plaintiff and her husband, Paul Lapointe. Their evidence
is contradicted by evidence obtained from the RCMP. At issue is the reliability
and credibility of the Plaintiff and Paul Lapointe, whose evidence should be
tested at trial under cross-examination.

[10]        
In support of her application, the plaintiff swore an affidavit on
January 30, 2015, filed February 2, 2015. Relevant portions of her sworn
testimony are set out in paragraphs 1-6, 9-15 and 18-20, as follows:

1.         I am
the plaintiff in the within action, and as such have personal knowledge of the
facts hereinafter deposed save and except where same are stated to be on
information and belief and where so stated, I verily believe them to be true.

2.         On
May 9, 2013, my husband, Paul Lapointe (“Paul"), and I were returning from
Kamloops to Spences Bridge after having his van serviced and visiting with my
daughter Paula Yorke in Kamloops. I was driving my 2003 Hyundai Elantra bearing
British Columbia license plate number 965 DxD (the “Elantra”). I followed Paul
who was driving his van.

3.         After
stopping in Cache Creek for lunch, we continued home to Spences Bridge. I was
awake and alert. I was travelling at a speed of approximately 90 kilometres per
hour, and I believe the speed limit on that stretch of highway to be 100
kilometres per hour. When I was only minutes from my home, driving on Highway 1
near the Hill Top Gardens campground, a large white truck (the “Truck”) sped up
behind me very fast. There is no passing permitted on this stretch of Highway
1, as there is a double solid yellow line and posted “no passing” signs.

4.         The
Truck came up beside me and swerved in close to my Elantra, so close I could
have touched a person sitting in the passenger seat of the Truck. The Truck
continued moving into my lane while it was positioned directly beside me and as
it moved slightly ahead of the Elantra, moving into my lane before it had
passed me. I saw the driver was a Caucasian male with brown hair. I yelled, hit
my horn and applied my brakes, which caused me to slow down a bit, but the
Truck continued to move to the right further into my lane, and in closer to my
Elantra, and pushed me off of the road (the “Accident”). I have no recollection
of the Elantra rolling or colliding into the ditch.

5.         I have
been told that I was air lifted to Royal Inland Hospital in Kamloops, British
Columbia following the Accident, though I have no independent recollection of
this. When I woke up in the hospital with Paul and my daughter, I was shocked
to be in hospital and only remembered the Truck pushing me off of the road.

6.         After
waking up at the hospital I explained to Paul that the Truck had pushed me off
of the road.

9.         I.C.B.C.
became involved and set up meetings for me with an occupational therapist.

10.       Once I
returned to Spences Bridge, I spoke to the Lytton R.C.M.P. about the Accident,
but they were not aware of the identity of the driver. The R.C.M.P. suggested
that I put up signs advertising for information about the Truck and driver of
the Truck for the date of May 9, 2013, because someone might just remember. A
few months after the Accident, Paul and I put up signs on message boards in the
Spences Bridge post-office, in Merritt by the Field’s store, and in Lytton by
the bank and by the grocery store. We did not think to make and keep copies of
these signs.

11.       I have
been advised since the Accident that the police assumed that I had fallen
asleep while driving. I was wide awake and recall the events of that day right
up until when I was pushed off of the road by the Truck.

12.       Paul
and I also spoke to the people we knew in our community about what had happened
and that we did not know who the other driver was. A local resident, Mike Rice,
inquired with the people who lived close to the scene of the Accident, and
advised me that nobody saw anything. No one we spoke to had any input as to who
the unidentified driver may be.

13.       I have
reviewed the Response to Civil Claim filed by ICBC. In response to paragraphs
1-4 of Part 3 of the Response to Civil Claim, I was never advised by anyone at
ICBC that there are statutory requirements under section 24 of the Insurance
(Vehicle) Act, R.S.B.C. 1996. c. 231 (the “Act”) to make all reasonable efforts
to ascertain the identity of the unknown owner and driver or unknown driver, as
the case may be.

14.       I
retained the law firm of HMZ Law on November 1, 2013, which published
advertisements in the Ashcroft Cache Creek Journal newspaper looking for the
driver of the Truck. True copies of those advertisements are attached to this
my affidavit as Exhibit 2.

15.       I
submitted a Hit and Run Application to I.C.B.C. on November 1, 2013. A true
copy of that Application is attached to this my affidavit as Exhibit 3.

18.       In the
Response to Civil Claim, the Defendant claims that I was negligent, and that I
did not make all reasonable efforts to ascertain the identity of the
unidentifiable owner/driver of the Truck, and therefore I am not entitled to
indemnity from the Defendant per section 24(5) of the Act.

19.       I made
many efforts and inquiries to ascertain the driver of the Truck in the months
following the Accident. Furthermore, at the time of the Accident I was driving
just slightly under the speed limit of the highway, within my designated lane,
and paying attention. When faced with the Truck edging me out of my lane, I
attempted to get the driver’s attention and slow down, however, the Truck did
not yield.

20.       I attended for an examination
for discovery conducted by the solicitor for I.C.B.C. on September 8, 2014

[11]        
It is apparent from a review of exhibit 1 to the plaintiff’s affidavit (the
ICBC claim file report), that a report was made to ICBC on May 10, 2013. The “accident
details” portion of the document sets out a date of loss of “09MAY2013",
confirms a location at “SPENCES BRIDGE, HILLTOP GARDEN, TRANS CANADA HWY”, and
contains the statement “COLLISION CLAIM – PAULA YORKE/DAUGHTER CALLED AND DID
NOT HAVE ANY DETAILS."

[12]        
The advertisements attached to the plaintiff’s affidavit as exhibit 2
read as follows:

[13]        
The plaintiff’s husband, Paul Lapointe, also swore an affidavit on
January 3, 2015 and filed February 2, 2015. At paragraphs 2-9, 12 and 14 he deposes
as follows:

2.         On May 9, 2013, Isobel and I
were returning home to Spences Bridge from Kamloops, British Columbia
travelling on Highway 1. We had stayed the night in Kamloops at our daughter
Paula Yorke’s residence because we had brought my van into Kamloops to be
repaired. I was driving my van and Isobel was driving her Hyundai Elantra.

3.         I was driving in front of
Isobel on the way home from Kamloops. We stopped at a cafe called Annie’s in
Cache Creek for lunch, which is our usual practice when we drive from Kamloops
to Spences Bridge. Isobel was alert and awake. After lunch we continued on our
way to Spences Bridge.

4.         About 5 kilometres north of our
home on Highway 1, I passed the Hill Top Gardens campground to my right. At
this part of the highway, there is only one lane proceeding in our direction,
and passing is prohibited by a double solid yellow line as well as posted “no
passing” signs.

5.         I was moving into the part of
the road that curves to the left when I noticed in my rear view mirror that a
newer model white truck (the “Truck”) was pulling out to pass Isobel. I
continued into the left curve and didn’t see the Truck finish passing Isobel.
About 8 seconds later the Truck was around the curve and up behind me pulling
out to pass me as well. The Truck was swerving and driving extremely fast while
it passed me such that I had to move my van over in the lane to stay out of the
Truck’s way. I noticed that the Truck was pulling a black open flat deck
trailer.

6.         I thought to myself this could
be an Alberta driver, based on the way the Truck was driving, but I noticed it
had a BC licence plate. I did not think to read the licence plate number.

7.         Once the Truck had finished
passing me and disappeared from my view I checked my rear view mirror again for
Isobel. I saw that her Elantra hadn’t come around the curve behind me, and
based on the distance she was behind me on the stretch of road beside Hill Top
Gardens I should have been able to see her by then. I wondered if she had
pulled over, so I pulled a U- turn. Once I returned to the straight stretch of
road by Hill Top Gardens I saw a cloud of dust rising by the driveway to Hill
Top Gardens.

8.         As I drove closer to the dust I
saw it was Isobel’s Hyundai Elantra upside down in the ditch. I pulled over my
van and got out, and saw that Isobel was unconscious in the driver seat of her
car. I thought she might be dead but I started talking to her to try and wake
her up. Mike Rice from Hill Top Gardens came down the driveway and said that he
saw the dust.

9.         The police and first responders
attended at the scene and Isobel was air lifted to Royal Inland Hospital. I
mentioned that the Truck that had passed both Isobel and myself to the police
officer at the scene. In the hospital, when Isobel woke up she explained to me
that the Truck had run her off of the road.

12.       A few
months later, Isobel and I put up signs on message boards in Spences Bridge at
the post office, in Merritt near the Fields store, and in Lytton both near the
bank and the grocery store. The signs asked for anyone who had witnessed or had
information about a white truck that was travelling on Highway 1 through
Spences Bridge on May 9, 2013 around 2-2:30 pm to call our phone number or
leave a message. I did not think to make and keep copies of the signs we put
up. Even after speaking to the people we knew in the Spences Bridge area, no
one could provide any information as to the identity of the driver of the
Truck.

14.       I was interviewed about my
wife’s accident by Bruce Paxton, an insurance adjuster for I.C.B.C. on November
18, 2014.

[14]        
In the responding materials, ICBC has filed two affidavits, one from
Bruce Paxton, an independent adjuster who was retained by ICBC to investigate
the plaintiff’s claim and one by Janine McInnes, a legal assistant employed by
counsel for ICBC. Both affidavits commenced with the paragraph wherein the
deponents identify themselves and swear that each deponent has:

…personal knowledge of the facts
and matters hereinafter deposed to, save and except where same are stated to be
based on information and belief, and where so stated I believe the same to be
true.

[15]        
Both affidavits contain hearsay statements. The Paxton affidavit attaches
a letter Mr. Paxton wrote to the Lytton RCMP on September 3, 2014, so the
evidence Mr. Paxton gives about contacting the Lytton detachment is not
hearsay; Mr. Paxton’s evidence about writing the letter and contacting the RCMP
is admissible, and the letter is admissible. However, none of that provides
admissible evidence in respect of issues which I must determine. There is no
admissible evidence from the investigating officer, Constable Phillips.

[16]        
The McInnes’ affidavit attaches documents prepared by others. Exhibits A
and B to her affidavit are, respectively, a copy of a motor vehicle traffic
collision police investigation report dated May 10, 2013, which references a
collision on May 9, 2013, reported May 9, 2013. Exhibit B is the code sheet.

[17]        
Paragraphs 5-8 of the McInnes’ affidavit read as follows:

5.         We are
in possession of the Code Sheet for the MV6020. Box 31 is for “Contributing
Factors" for Vehicle 1. The number 19 is listed as "Fell Asleep"
on the Code Sheet. Attached hereto and marked Exhibit "B” to this my
Affidavit is a true copy of the Code Sheet for the MV6020.

6.         We are
in possession of the Narrative Synopsis drafted by Constable Phillips and dated
May 9, 2013. In that document Constable Phillips describes the accident as a
“single vehicle accident" and states that ‘‘no criminal actions
contributed to collision". Attached hereto and marked Exhibit “C" to
this my Affidavit is a true copy of the Synopsis dated May 9, 2013.

7.         I have
reviewed the documents received from the RCMP and none of the documents
indicate that the RCMP conducted any investigations relating to another
vehicle, nor do the documents indicate further contact was made with the RCMP
by the Plaintiff in relation to the Accident. 

8.         We are in possession of the
treatment records of Royal Inland Hospital for the period of May 9, 2013 to May
16, 2013. Within these treatment records the Plaintiff is described as an
insulin dependent diabetic. Within these treatment records are notes making
reference to the Accident. I reviewed these notes and could not locate any
notes making reference to the involvement of another vehicle in the Accident.
Attached hereto and marked Exhibit “D” to this my Affidavit is a true copy of
the treatment record pages containing the above-noted notes.

[18]        
The plaintiff has been examined for discovery. No portion of her
discovery evidence was placed before me. In particular, nothing was provided
from her discovery which contradicts her affidavit evidence.

[19]        
Plaintiff’s counsel submits that all of the evidence put forward by ICBC
is inadmissible hearsay. In support of this proposition, she refers to a
decision of Master McCallum in Willis v. Steele, 2008 BCSC 1001, where at
para.10 he quotes the decision of our Court of Appeal as follows:

[10]      The defendant’s
application is supported by an affidavit of a legal assistant made on
information and belief relying on what she was told by the defendant. In A.L.
Sott Financial (Newton) Inc. v. Vancouver City Savings Credit Union, 2000
BCCA 143, the court held at paragraph 9 of the reasons that, "It is well
settled that, because Rule 18 leads to a final order if the applicant succeeds,
evidence on information and belief is not admissible". In those circumstances,
the defendant’s motion cannot succeed under Rule 18 as it is not supported by
the required affidavit.

[20]        
 She also relies on the decision of Madam Justice Southin in Olynyk
v. Yeo (1988), 33 B.C.L.R. (2d) 247 (C.A.), as cited by Mr. Justice Lander
in British Columbia v. Harris, 2003 BCSC 1257 at para. 38:

[38]      It is likely the case that very few of the exhibits
appended to the Province’s affidavits are admissible as business records under
s. 42. In Olynyk v. Yeo (1988), 33 B.C.L.R. (2d) 247 (C.A.), Madame
Justice Southin provided an explanation of the business records rule at pp.
253-54:

I am of the opinion that this
section is directed to recording "facts" occurring in the ordinary
course of the business of the maker of the document and required to be
recorded. For instance, if a meteorologist records in the usual documents of
his office that it was raining at such and such a time, whether he saw the rain
or a fellow meteorologist did, the document is admissible to prove that it was
raining. But if he writes down that his fellow meteorologist saw an accident on
his way to work, that is not a fact being recorded in the usual and ordinary
course of his business and is not admissible as such in proof of the occurrence
of the accident.

The words "to record in that
document a statement of the fact" mean, in our opinion, that the fact
occurred within the observation of someone who has a duty himself to record it
or to communicate it to someone else to record as part of the usual and
ordinary course of business.

It is part of the usual and
ordinary course of the business of a hospital and its staff to record
"history" for the purpose of treating the patient but the
"facts" in the history are not facts which occurred within the observation
of the maker of the statement or within the observation of any other person
whose observation it is part of the usual and ordinary course of business of
the maker to record. There was no one on the staff of the hospital who could
have given "direct oral evidence" of the cause of the fall.

In Matheson et al. v. Barnes et
al., [1981] 2 W.W.R. 435, Locke J. (as he then was) quoted with approval
from the Judgment of Griffiths J. of the Ontario High Court in Setak
COMDUter Services Corporation Ltd. v. Burroughs Business Machines (1977) 15
O.R. (2d) 750, 76 D.L.R. (3d) 641:

Moreover, the section is intended
to make admissible records which, because they were made pursuant to regular
business duty, are presumed to be reliable. The section was not intended to
make hearsay evidence of any third party admissible. Hearsay statements should
only be admitted where the maker of the writing and the informant or informants
are both acting in the usual and ordinary course of business.

Locke J. then went on and found that
a statement given to an insurance adjuster by a witness, the witness having
died, was not admissible because "there was no duty on the deceased
witness to make the statement".

There was no duty on whoever provided the information as to
the cause of the fall to make or cause to be recorded that fact.

[21]        
Plaintiff’s counsel has also drawn the court’s attention to the decision
of Mr. Justice Groves in Aberdeen v. Langley (Township), 2006 BCSC 2064,
were at para. 20 his Lordship writes:

[20] I have concluded, as I have
indicated, that this accident report has no value. In applying the principled
approach to the admission of hearsay, it is not reliable in my view as a result
of the failure of the police officer to discuss the accident, before
determining its origins, with Mr. Aberdeen. Nor is anything in the accident
report necessary, as evidence of the accident can be evidence called through
the police officer.

[22]        
In its response to the submission that the evidence proffered by ICBC is
inadmissible, ICBC relies on the position of Mr. Justice Esson, as he then was,
in Progressive Construction Ltd. v. Newton (1980), 25 B.C.L.R. 330, as
cited by Madam Justice Hyslop in Anhalt v. Flowers, 2013 BCSC 1378 at
paras. 10, 36 and 37:

[10]      In Progressive Construction Ltd. v. Newton,
[1980] B.C.J. No. 2112, 25 B.C.L.R. 330 p, Mr. Justice Esson, in considering an
application pursuant to the predecessor of Rule 9-6, previously Rule 18,
stated:

[9] The most important of the basic principles which
governed applications under O. 14 was:

A litigant must be allowed his day in Court, and must not be
deprived of a trial in the ordinary way unless it is manifestly clear that he
is without a defence that deserves to be tried. It is not the function of a
Judge who hears an application under 0. 14 [predecessor to Rule 18] to try
disputed issues of fact or law. His duty and power are limited to determining
whether, on the relevant facts and applicable law, there is a bona fide triable
issue.

[36]      Mr. Justice Esson was referring to in Progressive
Construction Ltd. comments on evidence that may not be in an admissible
form:

[17] It was also held in cases decided under O. 14 that
information and belief affidavits were not admissible in answer to a motion for
summary judgment: W.H. Malkin Ltd. v. Jackson (1963), 44 W.W.R. 63. It
may no longer be necessary to prohibit a respondent to a R. 18 application from
relying upon information and belief. It is obviously right that an applicant
who invokes this extraordinary procedure should not be allowed to rely upon
anything but direct evidence. But to apply the same rule to respondents may be
unfair. The respondent, at that stage, need only raise a doubt as to whether it
is manifestly clear that his case is bad. There are two bases on which he might
now be permitted to rely on affidavits deposing to statements by others as to
material facts. One is that, by a combination of R. 40(42) and 51(9), there is
a discretion to permit statements on information and belief. The other possible
basis is that an affidavit testifying to what somebody else has said may be
direct evidence of a fact which, on the application, is material for the
respondent to prove, i.e., that he has knowledge of a potential witness. Often
it is impractical, by reason of constraints of time or distance, to obtain
affidavits from potential witnesses, and sometimes it is impossible — there
being no power equivalent to the subpoena which can require a person to swear
an affidavit.

[37]      In Federal Business Development Bank v. Pallan,
[1978] B.C.J. No. 1068, 9 B.C.L.R. 59, Mr. Justice Toy had before him an
application pursuant to Rule 18 of the then Rules. The plaintiff was seeking
judgment on a guarantee of the three personal defendants who opposed such a
judgment. Mr. Justice Toy stated:

[7]        Plaintiff’s counsel correctly submitted to me
that an application under R. 18(1) is for a final order and consequently the
defendants may not rely upon information and belief or hearsay evidence, the
receivability of which is restricted to interlocutory applications pursuant to
R. 51(9). I am therefore bound to ignore the information and belief evidence
contained in paras. 9 and 10 of the Mr. Pallan’s affidavit.

…

[13]      The facts upon which the defendants must rely to
establish this defence are not within the defendants’ sphere of knowledge or
activities and it is unlikely that the evidence in support thereof could be
obtained without a full disclosure by a discovery of documents and examinations
for discovery of the plaintiff’s officers or agents. Accordingly, at this stage
it is impossible for me to say that on an application of this kind such a
defence is devoid of merit.

[23]        
In Anhalt, Hyslop J. reviews the relevant law with respect to
summary judgment applications, most salient of which are as follows:

a)    disputed issues
of fact or law cannot be tried in a Rule 9-6 application;

b)    the rule is to
weed out claims or defences that have no chance of success;

c)     the burden
of proving “no chance of success" rests with the person seeking judgment;
and

d)    if the applicant
discharges her obligation to demonstrate that there is no issue to be tried,
then the court must allow the application.

[24]        
The bar on a motion for summary judgment is high; a plaintiff seeking
summary judgment bears the evidentiary burden of showing that there is no genuine
issue of material fact requiring trial. Each side must put its best foot
forward.

[25]        
A judge is not to weigh conflicting evidence on a summary judgment
application.

[26]        
A master has no jurisdiction to hear a summary trial, and cannot weigh
conflicting evidence on a summary judgment application.

[27]        
Associate Chief Justice Cullen considered the applicability of Rule 9-6
in Valoroso Foods (1996) Ltd. v. Ma-Nina Limited, 2014 BCSC 880, wherein
reaching a decision that no triable issue exists on one of the issues in that
case, he states:

[40]      He relies on the applicable test under Rule 9-6 as
set out in Haghdust v. British Columbia Lottery Corporation, 2011 BCSC 1627,
leave to appeal dismissed 2012 BCCA 120, at paras. 14 and 15 as follows:

[14] The underlying purpose of the
summary judgment procedure has been described as preventing claims (or
defences) "…that have no chance of success from proceeding to
trial" because "[t]rying unmeritorious claims imposes a heavy price
in terms of time and cost on the parties to the litigation and on the justice
system": Canada (Attorney General) v. Lameman, 2008 SCC 14 at para.
10.

[15] The Rule provides that if a Court is "satisfied
that there is no genuine issue for trial with respect to a claim or
defence", the Court "must pronounce judgment or dismiss the claim
accordingly: Rule 9-6(5)(a). In my view, this standard, that there is "no
genuine issue for trial" is no different than the "bona fide triable
issue" standard under the old rule. Thus, for a claim to be dismissed on a
summary judgment application, it must be manifestly clear that there is no
matter to be tried: Progressive Construction Ltd. v. Newton (1981), 25
B.C.L.R. 330 (S.C.).

[28]        
 In dealing with the issue of whether or not the plaintiff has complied
with the requirements of s. 24(5), I was referred to a decision of Madam
Justice A.W. McKenzie, as she then was, in Munday v. Munday, (19
November 1999), New Westminster Registry S30651 and S30652. MacKenzie J. writes:

[12]      It is clear on the
uncontradicted evidence of the plaintiff that she complied with this
legislation. The defendant’s suggestion that the plaintiff ought to have posted
a notice at the intersection, or to have put advertisements in newspapers, does
not make sense. A person who accelerates away from an accident is not likely to
respond to such efforts. The plaintiff acted reasonably by telephoning I.C.B.C.
immediately after the accident to an I.C.B.C. adjuster and obtaining the names
and telephone numbers of independent witnesses. I find she complied with s. 24
of the Insurance (Motor Vehicle) Act. The plaintiff made “all reasonable
efforts” to ascertain the identity of the unknown driver because his or her
identity was “unascertainable” within the meaning of the section. She could not
obtain the licence plate number because the driver escaped; posting notices or
placing advertisements would serve no purpose: see Strauss v. Insurance
Corp. of British Columbia, [1995] B.C.J. No. 1400 (B.C. Prov. Ct.) (Q.L.)
and Crotty v. Insurance Corp. of British Columbia (1^st May
1999), New Westminster No. S039253 (B.C.S.C.). In summary, the action was
properly brought against I.C.B.C. as nominal defendant for the second accident.

[29]        
I was also assisted by a decision of Chief Justice Finch in Holloway
v. ICBC, 2007 BCCA 175, where in considering the question of whether the
plaintiff in that case had taken all reasonable steps to ascertain the identity
of the unknown owner and driver, the Chief Justice writes:

[13]      One comes then to the third ground raised by
I.C.B.C., namely that the judge made a palpable and overriding error in finding
that the plaintiff had taken all reasonable steps to ascertain the owner and
driver of the vehicle which struck her. Counsel for I.C.B.C. agreed, as I
understand his submission (see Appellant’s Factum, para. 67) that the question
of reasonableness contains a subjective element, that is to say, a
consideration of the plaintiff’s conduct in light of her own physical and
mental condition at the time, and in all of the circumstances. Counsel points
to the plaintiff’s admitted ability to make observation of the driver’s and the
vehicle’s appearance immediately following the accident, details of her
conversation with him, where the vehicle went after their conversation and so
on. Counsel says this shows that the plaintiff had ample opportunity to obtain
information as to the identity of the owner and driver.

[14]      However, as the trial judge correctly observed, the
important question was not whether the plaintiff had the opportunity to obtain
the necessary information, but why she failed to act on that opportunity. He
concluded her "condition" as that word is used in Leggett, supra,
provided an adequate explanation. In my respectful opinion there was evidence
to support that conclusion. On the plaintiff’s evidence, which was the only
evidence before the Court, immediately before impact she heard a screeching
vehicle. The vehicle struck her, knocked her off her feet, and carried her some
distance on its hood. When she went to speak to the driver he started
"shouting" at her. She lost her "composure", and walked
away. When she recovered herself and returned to get the necessary information,
the vehicle had driven away.

[15]      The judge concluded
that these post-accident circumstances left her in such a condition that it was
not reasonable for her to obtain the information before it was too late. In my
respectful opinion, on the uncontested evidence before the judge, this was a
conclusion that was reasonably open to him to reach. I see no basis on which
this Court could properly interfere in the result. I would dismiss the appeal.

Is there a genuine issue for trial with respect to the defence that the
plaintiff did not make all reasonable efforts to ascertain the identity of the
unknown driver/owner?

[30]        
The evidence here can be summarized as follows:

a)    the day after
the accident the plaintiff’s daughter telephoned ICBC;

b)    police and first
responders attended at the scene;

c)     once the
plaintiff returned to Spences Bridge, she spoke to the RCMP about the accident;

d)    a few months
after the accident, the plaintiff and her husband put up signs on message
boards – Counsel for ICBC has submitted that because the plaintiff and her
husband did not keep copies of the signs and posted the signs a few months
after the accident, reliability and credibility of their statements that they
put up the signs is disputed. There is no evidence before me to contradict the
evidence of the plaintiff and her husband in this regard;

e)    once counsel
were retained, advertisements were placed. The advertisement is reasonably
descriptive in that it sets out the approximate time and at the time, date, and
location and as well describes “a white truck towing a trailer”. ICBC submits
that the advertisements were seeking witnesses to the accident and did not ask
readers for assistance in locating the driver or the truck.

[31]        
In submissions, ICBC’s counsel contested the veracity of the evidence,
but offered no contradictory admissible evidence.

[32]        
ICBC submits that a court must assess the reasonableness of the efforts
and, therefore, must evaluate the evidence and submits that evidence cannot be
assessed or weighed, nor can a determination of reasonableness be made.

[33]        
Masters routinely assess evidence on summary judgment applications, for
example in foreclosures. Documents are reviewed to ensure that they are signed.
Affidavit evidence is reviewed to ensure that it is made with personal
knowledge and is accurate. I am satisfied that there is no genuine issue for
trial with respect to whether or not the plaintiff has made reasonable efforts
to ascertain the identity of the unknown driver/owner. There is no evidence
which contradicts the affidavit evidence of the plaintiff (who has been
examined for discovery) and her husband.

Has the plaintiff established the general issue of liability?

[34]        
I am troubled by the failure of ICBC to provide admissible evidence with
respect to this issue. Constable Phillips, who spoke to Mr. Paxton, is
obviously available to have provided an affidavit of his own. His notes, even
if they were admissible, set out his own observation of skid marks. This does
not help the defendant. Obviously there would only be skid marks on any
pavement if a vehicle was skidding. It seems to me to be unlikely that a
vehicle proceeding off the road as a consequence of the driver falling asleep
would be skidding. The police officer does not appear to be an accident
reconstruction expert; any opinions offered in his notes are speculation. His
evidence is not provided as first hand evidence such as is generally required
for a summary judgment application.

[35]        
All of the cases provided to me dealing with determination of liability
were summary trial applications, before a judge who had the jurisdiction to
hear a summary trial and weigh evidence, something I cannot do.

[36]        
In its response, ICBC has relied on, inter alia, Rule 22-1 which
deals with chambers proceedings. Rule 22(7) sets out some of the powers of the
court on hearing a chambers application. Rule 22(7)(a) and (d) are as follows:

Power of the court

(7)Without limiting subrule (4), on the hearing of a chambers
proceeding, the court may

(a) grant or refuse the relief
claimed in whole or in part, or dispose of any question arising on the chambers
proceeding,

(d) order a trial of the chambers proceeding, either
generally or on an issue, and order pleadings to be filed and, in that event,
give directions for the conduct of the trial and of pre-trial proceedings and
for the disposition of the chambers proceeding.

[37]        
Even if I were to conclude that this accident was caused wholly or
partially by an unidentified driver, the issue of any contributory negligence,
such as the proper driving of the plaintiff in the circumstances, would still
need to be determined at a trial, or perhaps a summary trial.

[38]        
Rule 9-6(5)(d) says the court may make any other order it considers will
further the object of these rules.

[39]        
Accordingly, I am dismissing what is sought in the notice of application
at paragraph 4, but not as an adjudication on the merits. The plaintiff has
leave to seek the same relief either by way of trial or summary trial, in front
of a judge.

[40]        
I find that the plaintiff has complied with s. 24(5). There is no
genuine issue for trial with respect to the defence of failure to make all
reasonable efforts. There is no evidence to be weighed on this issue. The
plaintiff has, in the circumstances of this case, made all reasonable efforts.
I order that Part 3, paragraph 2 of the response to civil claim filed by ICBC
be struck.

[41]        
The application was brought to simplify issues in this litigation. Although
the plaintiff has not been wholly successful, she has been partially successful.
She will have her costs of this application in any event of the cause, not
payable forthwith.

“Master
R.W. McDiarmid”

MASTER McDIARMID