IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150727

Docket: S124938

Registry:
Vancouver

Between:

Abdi Ali Mohamed

Plaintiff

And

Intransit
BC Limited Partnership, SNC-Lavalin Group Inc.,
Canada Line Rapid Transit Inc., doing business as Translink
and ProTrans BC Operations Ltd.

Defendants

Before:
The Honourable Mr. Justice Voith

Reasons for Judgment

Introduction

[1]            
On July 17, 2010, the plaintiff, Mr. Mohamed, suffered a fall while
exiting the Aberdeen SkyTrain station in Richmond. Mr. Mohamed asserts
that he was misled by signage above an escalator that said “Way Out”, and that depicted
the figure of a person descending a set of stairs as well as an arrow that
pointed downwards. The escalator was, in fact, ascending. Mr. Mohamed
asserts that when he stepped onto the top step of the escalator, he lost his
balance and fell, and that he thereby injured his right knee.

[2]            
The defendants, based on various forms and pieces of evidence, argue
that Mr. Mohamed never attempted to use the escalator. Instead, they say
that he exited the SkyTrain station using a set of stairs that are immediately
adjacent to the escalator. They further argue that his injury occurred when he
stumbled on these stairs.

[3]            
The following distinct issues are raised, in concept, by this action:

i)        How did Mr. Mohamed
injure himself at the Aberdeen SkyTrain station? This issue also brings into
question the admissibility of various pieces of evidence relied upon by the
defendants.

ii)        Did the settlement that Mr. Mohamed
received in 2011, for an accident that he was involved in in 2006, include
and/or provide compensation for the injury that is the subject matter of this
action?

iii)       If the injury occurred,
as Mr. Mohamed asserts, and if the 2011 settlement does not prevent Mr. Mohamed
from advancing the present claim, the following further questions arise:

a)       Were the defendants
negligent?

b)       If so, did that negligence cause Mr. Mohamed’s
injury?

c)       If so, what is the measure of Mr. Mohamed’s
loss?

d)       Was Mr. Mohamed’s own
behaviour negligent and, if so, did that negligence contribute to his loss?

[4]            
Counsel agrees, however, that each of the first two of the foregoing
issues are, independently, dispositive of this action. By reason of the
conclusions I have arrived at, I have, therefore, only addressed the first of
the issues identified.

Background

[5]            
A number of background facts are straightforward. I propose to address more
specific evidence in the context of the issues that such evidence addresses.

[6]            
Mr. Mohamed is now 44 years old. He was born in Somalia and left
that country when he was 15 years old. He has a grade-four education. He
eventually made his way to Canada as a refugee and came to Vancouver because he
believed there would be more work for him here.

[7]            
He held various jobs over the first several years that he was in
Vancouver. Eventually, he became involved in commercial and residential
construction. He initially worked as a labourer, and over time, he began to do
more skilled forms of work including work as a carpenter. He has lived in
Richmond, at various locations, for more than two decades.

[8]            
On November 21, 2006, Mr. Mohamed was a passenger on a bus that was
involved in a significant motor vehicle accident (the “2006 Accident”). As a
result of that accident, Mr. Mohamed suffered a number of serious and
enduring injuries.

[9]            
Of particular significance and relevance is the fact that Mr. Mohamed
suffered a severe and ongoing balance disorder. This balance disorder prevented
him from being able to work and from carrying out many of his day-to-day
activities. In addition, it caused him, in the ensuing years, to fall numerous
times. Some of the falls were serious, with Mr. Mohamed injuring himself
in some new way or being rendered unconscious. His dizziness was made worse by
his moving his head quickly, by his being in a car or on a bus, by light and,
in fact, by his riding on either escalators or elevators.

[10]        
Over time, Mr. Mohamed developed some strategies that abated these
difficulties, but it is clear that the difficulties with his balance continued
to be a significant problem at the time of his fall at the Aberdeen SkyTrain
Station.

[11]        
Mr. Mohamed also suffered other injuries as a result of the 2006
Accident. These injuries are, however, less relevant to this action and I need
not address them directly.

[12]        
Mr. Mohamed’s claim for the injuries and loss he suffered as a
result of the 2006 Accident was resolved in or about July 2011.

[13]        
Because the injuries Mr. Mohamed suffered as a result of the 2006 Accident
prevented him from working, no past or future wage loss claim is advanced in
this action. The only claims advanced on his behalf at the trial of this action
are for general and special damages, as well as for some modest costs of future
care.

The Events of July 17, 2010

a)       The Plaintiff’s Evidence

[14]        
On July 17, 2010, Mr. Mohamed had travelled from his home in
Richmond to the Commercial Drive area in Vancouver. He was at a sports bar,
called Joe’s Cafe, with friends from about 2:00 p.m. until about 9:30 or 10:00
p.m. He says he had two beer over this time. He then returned to Richmond,
first taking two different buses and then the SkyTrain from the station located
at the intersection of Cambie and Broadway, along the Canada Line, to Richmond.

[15]        
Though he would normally get off at the last station on the line, the Richmond-Brighouse
Station, he got off at the Aberdeen Station on this occasion. He was to meet a
casual friend to discuss the possibility of their sharing accommodation together.

[16]        
The physical description of the Aberdeen Station, of the signage at that
station, and of the means of egress from the station, are all relevant. They
are also all matters in respect of which there is no dispute.

[17]        
Passengers who exit the SkyTrain are immediately faced with a sign that
says “Way Out”. On each side of these words are arrows pointing in opposite
directions indicating two separate means of exit. One arrow points to the
depiction of what is clearly an elevator with two figures within it, one being
in a wheelchair. The opposite arrow points to the depiction of a figure
descending a flight of stairs with a further arrow that points downward.

[18]        
Persons who choose to follow this second sign are required to walk
around a metal railing. As they come around this railing, they are faced with
both an escalator and a flight of stairs that are parallel to each other, and
separated by a short distance.

[19]        
It is common ground that on July 17, 2010, a further sign that said “Way
Out”, beside the pictograph of a figure descending stairs and an arrow pointing
downwards, was positioned over the escalator.

[20]        
It is also agreed that that escalator, in fact, ascends. The stairs, on
the other hand, allow passengers to descend to street level so they can then
exit the station.

[21]        
Mr. Mohamed says that he saw the sign above the escalator and
believed the escalator would lead him out of the station. Instead, when he
stepped onto the escalator with his right foot, it threw him, he became dizzy,
and he then fell down hitting his right knee. He says he injured his knee and
then hit his head. He also says he hurt his buttocks on the edge of the treads
on the escalator when he fell.

[22]        
He says the “machine spit him out” and that he crawled away. He said he
was unable to get up and called for help. He said his knee was swollen. He then
crawled to the railing to the left of the escalator. He was unable to stand up,
crawled under the railing separating the escalator and the stairs and then got
up.

[23]        
He says that he again called for help without success. He took the
stairs down, jumping on his left leg and holding the railing. At one point,
there is a landing on the stairs. He looked down, and saw “a lady”. He says he
called for help and asked for an ambulance. She waited for him at the bottom of
the stairs, used an emergency phone and called for an ambulance.

[24]        
He says he then sat on a bench and spoke to the young woman who he
understood to be a SkyTrain attendant. An ambulance arrived shortly thereafter
and Mr. Mohamed was taken to Richmond Hospital where he was treated and then
released.

b)       The Defendants’ Evidence

[25]        
The defendants assert, as I have said, that Mr. Mohamed was not
injured on the escalator. Rather, they say he stumbled while partway down the
stairs. Accordingly, they argue that the placement of the sign over the
escalator, and whether that sign and its location was misleading, did not cause
Mr. Mohamed’s injury and cannot ground any claim in either negligence or
under the Occupiers Liability Act, R.S.B.C. 1996, c. 337.

[26]        
To understand the evidence the defendants rely on, and the legal
attributes of that evidence, some fuller understanding of aspects of the defendant
ProTrans BC Operations Ltd.’s (“ProTrans”), operations, policies and physical
facilities is relevant. Furthermore, because I have concluded that this body of
evidence both addresses and disposes of the plaintiff’s claim, I have developed
the evidence in greater detail than I otherwise would.

[27]        
The Canada Line has 16 stations. Those stations are continuously
monitored by almost 500 cameras. The activities at the average station are
overseen by between 25-40 cameras.

[28]        
ProTrans has its offices in Richmond. One component of those offices is
a control room. That control room is perhaps twice the size of a large
courtroom. The operations of the Canada Line are monitored from this control room.
Some aspects of those operations pertain to matters such as train operations
and power supplies. Others pertain to matters of equipment usage, such as the
stairs, escalators and elevators at each station, and to matters of safety for
employees, contractors and passengers.

[29]        
The control room is operated 24 hours each day by four different
operators and a supervisor. At the front of the control room is a screen that
is perhaps 60 feet wide and that has approximately a hundred different monitors
on it. Sixty of these monitors are fixed at various locations at each station such
as at the platform edges. Others are safety triggered. For example, a fall on
an escalator may cause different sensors to activate a camera. Escalators have
sensors that can be activated or triggered by both weight and resistance. When
the sensors are triggered, the escalator will stop and a camera will swing to
that escalator. These sensors are placed on the escalator’s platforms as well
as on its treads and handrails. All escalators have dedicated cameras.

[30]        
Different cameras are also dedicated to different safety devices. For
example, if an alarm goes off, a camera will swing to that area. Similarly, if
a call is made from an emergency phone, a camera will swing to the phone and
persons within the control room will be able to see the person they are
speaking to.

[31]        
Operators in the control room have the ability to access any camera in
any given circumstance. In addition, all incidents are also required to be reported
to the control room. Thus, a Canada Line attendant who reports an injury or
incident will contact the control room. The control room will contact Emergency
Health Services (“EHS”) for an ambulance, if necessary. The control room will
again bring up the attendant who has called in on a camera, often together with
the passenger or person who is injured. Persons within the control room will then
access the relevant camera footage of the incident or accident immediately.
This allows the control-room operators to potentially relate useful information
to EHS personnel about how the injury occurred or where the individual is
injured.

[32]        
In this case, the Canada Line attendant who assisted Mr. Mohamed at
the Aberdeen Station, and who called the control room to obtain an ambulance
for him, was Ms. Laeeq. Ms. Laeeq, thereafter, in accordance with
standard procedure, generated a record of what had happened (the “Laeeq
Report”). In 2010, the practice was to have Canada Line attendants complete a
written report of all incidents that they were involved in. They were trained
in how to complete these reports. All such written reports were thereafter transcribed,
verbatim, into what is known as the SharePoint System.

[33]        
The operators in the control room also rely on various types of record-keeping
and daily logs. For present purposes, it is important that, at the time in
question, when an incident of some sort occurred, various types of records were
automatically and consistently generated. One such record was an Excel spreadsheet
that identified, inter alia, the station in question, the nature of the
incident, the start and end time of the incident, the time when the log was
created and the author of the log (the “Excel Log”).

[34]        
In this case, the Excel Log indicated that an incident occurred at the
Aberdeen Station, that an ambulance was requested, that the event commenced at
23:20 hours and that the event ended at 23:45 hours – this being when the
ambulance arrived on scene. These time entries are rounded to the nearest five
minutes. This particular log was created at 23:49 hours by “Anni Cihan”.

[35]        
In addition, a brief written note of the incident or event would be
generated and would shortly thereafter be entered into a computer. The
particular log entry made for the incident involving Mr. Mohamed (the
“Control-Room Log Entry”) is relevant and I will return to it.

[36]        
These various records were required for various reasons and by various
authorities. ProTrans is International Organization for Standardization (“ISO”)
certified for safety, engineering and environmental matters. One aspect of this
certification requires stringent levels of record-keeping. In addition,
ProTrans is certified by the British Columbia Safety Authority (“BCSA”). That
certification, again, requires that ProTrans document particular matters in a
particular way, that it maintain certain records, and that it deliver certain
records to the BCSA.

[37]        
ProTrans will also further investigate incidents and accidents. The
Director of the Health, Safety, Quality and Environmental (“HSQE”) Services
Department will, on the next day following an incident, assign that incident
for further investigation to one of two HSQE coordinators. In this case, Ms. Martin,
who gave evidence at trial, was the HSQE coordinator who was assigned to the
investigation pertaining to Mr. Mohamed’s incident.

[38]        
Ms. Martin holds a Certificate in Occupational Health and Safety
and is a Certified Registered Health and Safety Professional. Before joining
ProTrans in February 2009, she had worked in various positions that had health
and safety as their focus for more than a decade.

[39]        
It is important that Ms. Martin investigates a broad range of
incidents from contractor-safety infringements, to environmental issues, to
employee and passenger accidents.

[40]        
In this case, as in all cases, upon being delegated the incident
pertaining to Mr. Mohamed, Ms. Martin first accessed the incident
report of Ms. Laeeq that had been entered into the SharePoint System and
then obtained a copy of the relevant entry from the control-room log. The first
document, the Laeeq Report, contained various categories of information as well
as the following summary:

The passenger exited a train at ABS O/B. To go downstairs, he
tried using the escalator going up to the platform, at which point he fell on
his knee. He says he didn[’]t see the escalator was going up and it was an
accident. After he fell, he says he walked to the bench outside ABS station on
his own. After sitting there for 10 minutes, he saw me and waved me over and
informed me that he had hurt himself. I asked him where the pain was and if he
needed an ambulance. He said he needed an ambulance. At that point, I asked
Control to dispatch the ambulance. We asked him not to move his knee as he
waited. He said he is on medication but doesn[’]t know the names. [ERA] arrived
on scene at 23:40 and took the passenger to Richmond General @ 23:47. How did
the incident occur: Passenger accidently took the escalator going up to go
downstairs.

How were they injured: He fell on
his knee on the escalator The passenger was intoxicated Footwear: Sneakers,
good condition

[41]        
The Control Room Log Entry stated:

23:22 CLA Sabeequa LAE-01 requesting EHS for a Pax that fall
down the stairs

23:22 EHS called

23:43 EHS at station

23:46 Pax taken by EHS to Richmond

General Hospital Incident is
Bookmarked and happened at 23:12

[42]        
The foregoing log entry requires some explanation. The 23:22 entry
refers to when Ms. Laeeq called in asking for an EHS vehicle for a
passenger who had fallen down the stairs. “PAX” means or refers to a passenger.

[43]        
Mr. Robinson, a control-room supervisor who gave evidence at trial,
but who did not make the foregoing entry, explained that the various entries pertained
to both what the control-room operator who made the entry was told, as well as
what he or she would have seen on the video screen when they recovered the
relevant videotape and played it. Thus, what Ms. Laeeq reported to the control
room and what her report indicates is that Mr. Mohamed said he fell on the
“escalator”. However, the Control-Room Log Entry reflects both that report and
the control-room operator’s subsequent review of the video, thus explaining the
note that Mr. Mohamed fell down the “stairs”.

[44]        
The control-room operator, who brought up the video from the relevant
cameras, reported and recorded when the incident actually occurred. Thus, the
last entry on the log, “Bookmarked and happened at 23:12”, means that the tape
from the relevant camera was bookmarked at 23:12 hours, that being the time when
the operator saw the incident that gave rise to the report. Specifically, this
is the time when Mr. Mohamed would have fallen.

[45]        
The timing in the Control-Room Log Entry, assuming its accuracy,
established that Mr. Mohamed fell at 23:12, that Ms. Laeeq called the
control room at 23:22, and that an EHS vehicle arrived at the station at 23:43.
The latter two times generally aligned with both the Laeeq Report and with the Excel
Log I referred to earlier.

[46]        
With these two records in hand, Ms. Martin went to the computer room,
a room that can only be accessed by a very limited number of individuals, where
she was able to access the relevant recordings from all relevant cameras at the
Aberdeen Station. She located the events in question using this “bookmark” in
the Control-Room Log Entry and described the procedures she then followed.
Simply put, she is able to bring up multiple recordings from multiple cameras
on one computer screen at the same time. She is able, through the bank of
cameras in the station that are available to her, to track the route of a
passenger as he or she gets off a train and as they then take the stairs or
escalator or elevator to exit that station.

[47]        
In this case, Ms. Martin said she viewed all of the relevant cameras
available to her. She reviewed those cameras and the relevant recordings several
times. With the aid of a drawing or depiction of the physical layout of the
Aberdeen Station, she was able to describe the specific cameras she relied on.
She further said that she will often review particular scenes up to 20 times in
order to ensure she has observed certain details accurately. Thus, for example,
if an injury occurs on a set of stairs, she will count the number of stairs or
focus on the injured party’s footwear and record these matters.

[48]        
In this case, she was also able to work backwards to ensure the accuracy
of her information. Thus, she was able to identify, from the cameras, when the
EHS vehicle arrived at the station and took Mr. Mohamed away. Ms. Martin
confirmed that this was the only EHS vehicle called to the Aberdeen Station
that day. She was also able, working backwards, to see Mr. Mohamed on the
bench outside with Ms. Laeeq waiting for the ambulance and to then see
him, again working backwards, in the station, on the stairs right through to
when he had first gotten off of the SkyTrain.

[49]        
At the time, as was her standard practice, Ms. Martin made
handwritten notes as she watched the videos on her screen. She thereafter
returned to her office and entered those notes, sometimes with other
information, into her computer report. The resulting written report (the
“Martin Report”), contains different categories of information and includes the
following summary:

At 23:12:10 Male middle aged passenger disembarked O/B train
and proceeded to stairs. Intoxicated and medication. Good condition runners,
floppy briefcase in right hand and object in left hand. (Both hands occupied)

3/4 down first span of stairs his ankles became wobbly and he
staggered down to the left.

Just before the mid-span landing,
his left foot caught in the side area between wall and stair. He gripped rail
with both hands, righted himself and continued to the bottom of the stairs
cautiously limping. He exited the station and sat on a bench outside the
station. He hailed a CLA to call EHS. Ambulance took him to Richmond Hospital.

[50]        
It is, again, relevant that all reports of the kind made by Ms. Martin
make their way to the Railway Safety Manager of the BCSA and that ProTrans is
required to maintain and deliver such reports. The Martin Report was signed on
July 20, 2010.

[51]        
Ms. Martin also testified that it was her practice, and that she
did in this case, extract the relevant video footage and save it on the hard
drive of the viewing computer. Practice then required a transfer of that
footage to an external hard drive which was then stored in a locked filing
cabinet. Either Ms. Martin or the other HSQE coordinator would have
performed the transfer. A spot check of the transferred items did not reveal
that they were corrupted. The files on the viewing computer were, however,
deleted before any error was identified. Subsequent efforts to recover the
files, by sending the hard drive and the server that contained the footage to
forensics experts, were unsuccessful.

[52]        
Thus, a central difficulty with aspects of the defendants’ case is that
the video footage that underlies the Martin Report and the Control-Room Log
Entry are no longer available.

[53]        
Apart from the various records that I have referred to, and the evidence
of how and why those records were generated and maintained, each of Ms. Laeeq
and Ms. Martin gave evidence of their direct involvement in these events and
of what they recalled of that involvement.

[54]        
Ms. Laeeq, who was a good witness and had a clear memory of events,
was working with a co-worker at the Aberdeen Station that evening. She did not
see Mr. Mohamed injure himself. Instead, she said that she and her
co-worker were standing at the lower level of the station, near a coil grill
that can be lowered to close off the station, when she and her colleague were
waved over by Mr. Mohamed. Mr. Mohamed was already sitting on a bench
outside of the station. Mr. Mohamed told her that he had fallen on the
escalator. He was holding his knee and said he was in pain. She then called for
an ambulance. While she waited for the ambulance, she filled out a form that
contained some of the information that is now contained in the Laeeq Report.

[55]        
Mr. Mohamed told her that he used prescription medication. The
report she filled out asks if the person in question has been drinking, and Ms. Laeeq,
because she smelled alcohol on Mr. Mohamed’s breath, and because his
speech was slurred, concluded that he was intoxicated. In her cross-examination,
she accepted, however, that a person who smelled of alcohol was not necessarily
intoxicated.

[56]        
Ms. Laeeq said that the Aberdeen Station was “the quietest station”,
particularly at that time of night, and that if Mr. Mohamed had called out
for help, she believed she would have heard him.

[57]        
She also said that shortly after Mr. Mohamed was taken to the
hospital by EHS, she received a call from a male control-room operator asking
her to call in. When she did so, she was told that the plaintiff had not fallen
on the escalator as he had reported but, rather, that he had fallen on the
stairs (the “Control-Room Oral Communication to Ms. Laeeq”).

[58]        
Ms. Martin also said that she had a good memory of the events she
had viewed on the videos that later gave rise to the Martin Report. Ms. Martin
said she observed the plaintiff come off of the SkyTrain, move past the
escalator and immediately to the stairs. He never tried to use the escalator.
She confirmed that there were no gaps in the videos available to her. She said
that Mr. Mohamed was a bit wobbly at the top of the stairs as he headed
downwards. Three quarters of the way down to the first landing, he switched
sides on the stairs. He caught his foot in a “rut” or depression below the
railing beside the steps which caused him to stumble. He did not fall, but
righted himself, went to the bottom of the stairs and then exited to a bench
outside of the station where he sat down. After a period of time, he was joined
by a Canada Line attendant. Thereafter, the EHS ambulance arrived. Ms. Martin
confirmed that Mr. Mohamed never returned to the station after he first went
to the bench.

[59]        
The evidence that the defendants seek to rely on gives rise to various questions
of reliability as well as admissibility, the purpose for which specific
evidence has been tendered and the weight to be given to such evidence. These
various inquiries are relevant to:

i)        Ms. Martin’s viva
voce evidence;

ii)        The Martin Report;

iii)       Ms. Laeeq’s viva
voce evidence;

iv        The Laeeq Report;

v)       The Control-Room Log
Entry; and

vi)       The Control-Room Oral
Communication to Ms. Laeeq.

i)        Ms. Martin’s Viva Voce Evidence

[60]        
The plaintiff generally accepts that Ms. Martin’s oral evidence is
admissible. I say “generally”, because the plaintiff takes the position, with
respect to much of the defendants’ evidence, that because the defendants lost,
destroyed or corrupted the recordings of the plaintiff’s conduct in the late
hours of July 17, 2010, all such evidence should, as a matter of policy, be
excluded. The plaintiff advances no authority in support of such a policy, and
I do not accept the need for or wisdom of any such policy. Indeed, I consider
that such a policy would not accord with the relevant authorities.

[61]        
It has long been understood and accepted that secondary evidence may be
admitted when a court is satisfied that an original document or record has been
lost or destroyed; Alan W. Bryant, Sidney N. Lederman & Michelle K. Fuerst,
eds., Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3d ed.
(Markham: LexisNexis Canada, 2009) at para. 18.11. The authors of this
text go on, at para. 18.12, to comment that:

So far as admissibility is concerned, there are no degrees of
secondary evidence, and oral evidence of the contents of a paper from a person
who has read it and a copy of that document are put on exactly the same
footing. While more weight may be attached to a copy of a document than oral
evidence of it, there is no requirement to account for copies before oral evidence
can be adduced.

[Footnotes omitted.]

[62]        
Furthermore, in both the criminal and civil context, there are numerous
examples of oral evidence being led in instances where the video or documentary
record of such evidence has been lost or destroyed; see e.g. R. v. J.S.C.,
2013 ABCA 157 at paras. 14-16; Bank of B.C. v. Smart (1988), 35
B.C.L.R. (2d) 21 at 24 (Co. Ct.); Surfwood Supply Ltd. v. General Alarms
Ltd., [1976] B.C.J. No. 1067 at para. 26 (S.C.).

[63]        
I am satisfied that the recordings that Ms. Martin viewed, and the copies
of those recordings that she sought to copy, were lost or corrupted
inadvertently. Indeed, there was no real suggestion otherwise. Furthermore, I
am satisfied that diligent and earnest efforts were made to locate and/or
re-create those materials. Again, there was no suggestion otherwise. I see no
reason why, on a principled basis, the innocent loss or destruction of a record
should effectively prevent the party who is responsible for that loss from
adducing evidence that is probative of the events in question.

[64]        
Counsel for the plaintiff also accepts that the fact Ms. Martin
testified to what she observed on a recording, notwithstanding the fact that
that recording has since been lost or destroyed, does not give rise to a
hearsay concern. This conclusion is confirmed, for example, in R. v. Mesfin,
2012 ABPC 115 at paras. 25, 28, and in Taylor v. Chief Constable of
Cheshire, [1987] 1 E.R. 225 at 230 (Q.B.).

[65]        
In terms of the reliability of Ms. Martin’s evidence, I consider
that she was an honest witness. Furthermore, I do not accept the suggestion
made by counsel for the plaintiff that Ms. Martin may have inadvertently
viewed the tapes relating to some other event or some other passenger. This
assertion is inconsistent with the process Ms. Martin followed, with her
turning to the events that had been “bookmarked” earlier, with her viewing
multiple screens concurrently to follow the path of the plaintiff in the
station and, finally, with the fact that Ms. Martin actually worked
backwards, or reversed the steps of Mr. Mohamed starting with when the
ambulance took him away and finishing with when he first got off the SkyTrain
at the Aberdeen Station.

[66]        
I would say, however, that the fact Ms. Martin viewed the tapes in
question a half decade ago would normally militate against the reliability of
her memory. This is all the more relevant because Ms. Martin would, by
virtue of her position, have viewed the tapes relating to many hundreds of
other events in the intervening years. Still further, this event was, by Ms. Martin’s
admission, a relatively minor incident. The fact that the plaintiff’s
description of how he was injured did not accord with the taped version of
those events made the event, from Ms. Martin’s perspective, unusual but
not extraordinary.

[67]        
On the other hand, the fact that the relevant recordings were lost or
corrupted was highly unusual. Indeed, Ms. Martin said this was the only
occasion she was aware of that this would have happened. These circumstances
would, I believe, have elevated the importance or significance of this incident
involving Mr. Mohamed in Ms. Martin’s mind.

ii)       The Martin Report

[68]        
Counsel for the defendants accepts that if Ms. Martin’s oral
evidence is admissible, there is no principled basis to seek to rely on the
Martin Report as a business record or to seek to admit that written record for
the truth of its contents. It would be Ms. Martin’s oral evidence that the
defendants would rely on.

[69]        
The defendants argued, however, and the plaintiff appeared to accept,
that if Ms. Martin’s oral evidence is admissible, the Martin Report is,
nevertheless, admissible as a prior consistent statement. It can thus be relied
upon to rebut any allegation that Ms. Martin may have fabricated her
evidence after learning that the relevant computer files or recordings had been
corrupted. Though this position was not pursued by the plaintiff with any real vigor,
it is a position that the plaintiff advanced.

[70]        
In such circumstances, the Martin Report can be relied on “in support
of” Ms. Martin’s oral evidence and it is relevant in the “larger
assessment of [her] credibility”; R. v. Stirling, 2008 SCC 10 at para. 11.
Importantly, however, the Martin Report is not admissible, in this way, to
establish the truth of its contents; Stirling at paras. 7, 12; see
also R. v. Austin (2006), 214 C.C.C. (3d) 38 at para. 33 (Ont. C.A.).

[71]        
As a result of these conclusions, I do not consider that I have to parse
through the Martin Report and distinguish between those parts that record Ms. Martin’s
observations and those parts that simply repeat portions of the Laeeq Report.
Similarly, I do not consider that I have to separate out what are properly
factual observations and what are expressions of opinion.

iii       Ms. Laeeq’s Oral Evidence

[72]        
The plaintiff accepts that Ms. Laeeq’s oral evidence is admissible.
I also consider, as I have said, that she was a careful and forthright witness
with a good memory of events. The plaintiff does not contest her evidence in
any meaningful way. Indeed, the plaintiff accepts, through a series of
admissions that I will return to, aspects of Ms. Laeeq’s evidence that
conflict with Mr. Mohamed’s account of events.

iv)      The Laeeq Report

[73]        
Since Ms. Laeeq has a clear memory of the facts and events recorded
in the Laeeq Report, there is no necessity for those documents to be admitted
separately as business records. This is notwithstanding the fact that the
various constituent requirements for the admissibility of a business record
under the Evidence Act, R.S.B.C. 1996, c. 124, s. 42, are
satisfied.

v)       The Control-Room Log Entry

[74]        
The plaintiff accepts, and I am satisfied, that the author of the Control-Room
Log Entry was under a duty to keep that record. The language of s. 42 of
the Evidence Act does not, however, expressly require such a duty. It
provides:

42  (1)  In this section:

"business" includes every
kind of business, profession, occupation, calling, operation or activity,
whether carried on for profit or otherwise;

"document" includes any
device by means of which information is recorded or stored;

"statement" includes any
representation of fact, whether made in words or otherwise.

(2)  In proceedings in which direct
oral evidence of a fact would be admissible, a statement of a fact in a
document is admissible as evidence of the fact if

(a)  the document was made or kept
in the usual and ordinary course of business, and

(b)  it was in the usual and
ordinary course of the business to record in that document a statement of the
fact at the time it occurred or within a reasonable time after that.

(3)  Subject to subsection (4), the
circumstances of the making of the statement, including lack of personal
knowledge by the person who made the statement, may be shown to affect the
statement’s weight but not its admissibility.

(4)  Nothing in this section makes
admissible as evidence a statement made by a person interested at a time when
proceedings were pending or anticipated involving a dispute as to a fact that
the statement might tend to establish.

(5)  For the purpose of any rule of law or practice
requiring evidence to be corroborated or regulating the manner in which
uncorroborated evidence is to be treated, a statement rendered admissible by
this section must not be treated as corroboration of evidence given by the
maker of the statement.

[75]        
The plaintiff also accepts that the Control-Room Log Entry was made in
the ordinary course of the defendants’ business as required by s. 42(2)(a),
that business being transporting passengers safely on the Canada Line. This, of
necessity, includes their safety in and around SkyTrain stations. Setak
Computer Services Corporation Ltd. v. Burroughs Business Machines Ltd.
(1977), 15 O.R. (2d) 750 at 760 (H.C.J.), establishes that records made at some
phase of the business, whether for a principal or an auxiliary purpose, are
admissible. Setak has been referred to or relied on in this province
many times; see e.g. Olynyk v. Yeo (1988), 33 B.C.L.R. (2d) 247 at 254 (C.A.);
Can-Dive Services Ltd. v. Pacific Coast Energy Corp. (1994), 100 B.C.L.R.
(2d) 356 at paras. 32-35 (S.C.).

[76]        
It is also clear, based on Mr. Robinson’s evidence, that s. 42(2)(b)
is satisfied as it was in “the usual and ordinary course” of ProTrans’ business
to “record in that document [the Control-Room Log Entry] a statement of the
fact at the time it occurred or within a reasonable time after that”.

[77]        
The evidence of Mr. Robinson establishes that the Control-Room Log Entry
would have been produced at the time that Ms. Laeeq called into the control
room for assistance for Mr. Mohamed or immediately thereafter.

[78]        
I am also satisfied that s. 42(4) is not engaged. All calls
relevant to all incidents of all kinds at all stations are entered into the control-room
log. These entries, when made, are not made to advance an “investigation or
inquiry” as those words have been interpreted; see e.g. R. v. McLarty (No. 3)
(1978), 45 C.C.C. (2d) 184 at 186-187 (Ont. Co. Ct.); R. v. Sunila
(1986), 26 C.C.C. (3d) 331 at 335 (N.S.S.C.). Instead, the entries made in the control-room
log, including the Control-Room Log Entry, were made to satisfy the various ISO
and BCSA criteria that ProTrans is required to adhere to and to allow for the
ongoing evolution and improvement of the safety standards within its
operations.

[79]        
In addition, the Excel Log I was shown for July 17, 2010, reveals both the
wide variety of issues and the number of such issues that are raised in a
single day. All such events have a control-room log entry made in relation to
them. Inevitably, some modest subset of this body of information and of these
records may become relevant and/or may be relied on if an action is commenced
in relation to a particular incident or accident. This does not, however,
detract from the reliability or trustworthiness of such records.

[80]        
In Ares v. Venner, [1970] S.C.R. 608 at 625-626, Hall J., for the
Court, addressed the admissibility of certain nurses’ notes in a patient’s
charts. Such entries were viewed as routine and as necessary. Often, the court
recognized, the person making such entries cannot be called upon to recollect a
particular entry made years earlier. Nevertheless, such records are admitted as
prima facie proof of the facts stated within them. This is so
notwithstanding the fact that some modest subset of such medical records may
become relevant, at some point, in particular litigation.

[81]        
One last point arises. It is not entirely clear who, specifically, made
the Control-Room Log Entry. I do not consider that this matters. Mr. Robinson
fully described the purpose for these log entries, the means by which they are
created and the timing that underlies their creation. It is also clear that the
person who “bookmarked” Mr. Mohamed’s fall would have had “first-hand
knowledge” of that entry in the sense that he or she would have reviewed the
relevant video footage in order to place the “bookmark” and to fix the time of
the incident. The fact that some other person may thereafter have copied the
entry into the log does not detract from its admissibility.

[82]        
I consider that these considerations and evidence, together with the
other matters I have addressed, satisfy the requirements of s. 42 of the Evidence
Act and that the Control-Room Log Entry is admissible as a business record.

vi)      The Control-Room Oral Communication to Ms. Laeeq

[83]        
The defendants argue that the Control-Room Oral Communication to Ms. Laeeq,
which advised her that Mr. Mohamed had fallen on the stairs, rather than the
escalator, is admissible for the truth of its contents either as a common-law
oral business record or under the principled exception to the hearsay rule as
developed in R. v. Khan, [1990] 2 S.C.R. 531 at 542, and R. v.
Khelawon, 2006 SCC 57 at para. 2.

[84]        
The motivation and underlying basis for the common-law admissibility of
business records and declarations made in the course of duty are similar, but
not identical, to those underlying the statutory business record provisions of
the Evidence Act that I have already addressed; Ares at 626; Desharnais
v. Parkhurst, 2013 BCCA 113 at para. 93.

[85]        
A key difference is that s. 42 of the Evidence Act addresses
the admissibility of “documents” that record or store information and so does
not apply to oral statements. In contrast, the common-law exception for records
or declarations made in the course of duty extends to oral declarations; David
M. Paciocco and Lee Stuesser, The Law of Evidence, 7th ed. (Toronto:
Irwin Law, 2015) at 181; Sopinka at para. 6.199.

[86]        
While both the Paciocco and Sopinka texts are clear and have been
recently re-stated on this point in cases including Hollowcore v. Visocchi,
2014 ONSC 6802 at para. 145, and Bezanson v. Sun Life Assurance Company,
2015 NSSC 1 at para. 17, there appear to be few cases that have been
called upon to apply this hearsay exception to a factual scenario involving the
admissibility of oral reports made in the course of duty.

[87]        
In R. v. West, [2001] O.J. No. 3413 (S.C.), Hill J. considered
the admissibility of a written forensic report authored by a deceased
biologist. Hill J.’s comment on the admissibility of an earlier oral report is
relevant:

69        Indeed, Mr. Pinto’s oral report of findings to
the police, provided months prior to creation of the report, discharged his
duty to inform the party submitting exhibits to the CFS for testing. This act
was itself a declaration in the course of duty. Only through timely reporting
of CFS biologists to the police, without awaiting submission of a final and
formal report, could the investigative process function in an effective manner
in circumstances of urgency.

81        In this case, on the
evidence, Mr. Pinto made statements in laboratory work sheets and reported
orally to investigators in a contemporaneous fashion. This discharged his duty
of reporting in a timely way by way of declarations in the course of duty. As
such, the notes and oral report would, in my view, themselves be admissible.

[88]        
Similarly, in Palter Cap Co. Ltd. v. Great West Life Assurance Co.,
[1936] O.R. 341 (C.A.), the court considered the admissibility of the written
contents of a medical file under the declaration in the course of duty
exception. Of relevance is Macdonnell J.A.’s summary of some of the older
authorities in his concurring decision at 369:

When we go further and
specifically consider oral as contrasted with written declarations, the
statement of Blackburn J., with the word "report" interpreted as
meaning either an oral or a written report, is of necessity to be preferred;
for we know that in proper circumstances oral declarations made in the course
of duty are admissible. In The Sussex Peerage case (1844), 11 Cl.
& F. 85, at p. 113, Lord Campbell says: "By the law of England
the declarations of deceased persons are not generally admissible, unless they
are against the pecuniary interest of the party making them. There are two
exceptions: first, where a declaration by word of mouth or by writing is made
in the course of the business of the individual making it." In Reg. v.
Buckley (1873), 13 Cox C.C. 293, the oral report of a police constable to
his inspector was admitted. And Halsbury, 2nd ed., vol. 13, at p. 591,
dealing with declarations in the course of duty, says "it is immaterial
whether the statements sought to be proved were made orally or in
writing".

[89]        
In contrast, in R. v. Delaronde, 2003 BCPC 502 at para. 8,
the court ruled that oral statements made by a pathologist in the course of an
autopsy were inadmissible on the basis that the court was not aware of a case
supporting that proposition and on the basis that both Ares and R. v.
Larson, 2003 BCCA 18 at para. 13 considered and described written
records. With respect, I do not find the analysis in Delaronde
persuasive. It appears that the attention of that court was not drawn to
authorities such as those I have identified above. Further, I do not consider
that the expression of the rule, in the context of the documentary evidence
before the courts in Ares and Larson, gives rise to a persuasive
reason to deviate from the long-standing common-law that is relevant to oral
reports made in the course of a duty.

[90]        
Further, the continued application of the declarations made in the
course of duty exception to oral reports is consistent with the underlying
principles of reliability and necessity, as must be the case; R. v. Starr,
2000 SCC 40 at paras. 200-201.

[91]        
The authors of the Paciocco text at 179, describe the salient
requirements of the declarations made in the course of duty exception in the
following terms:

Declarations, oral or written,
are admissible for their truth where (1) made reasonably contemporaneously; (2)
in the ordinary course of duty; (3) by persons having personal knowledge of the
matters; (4) who are under a duty to make the record or report; and (5) there
is no motive to misrepresent the matters recorded.

[92]        
These factors tend to increase the reliability of the statement at issue;
Hollowcore at para. 150. I consider that this is so regardless of
whether the statement was made orally or in writing. Where the original
statement was made orally, the subsequent reliability of the witnesses’
recollection of that statement does not raise hearsay concerns as that
recollection can be tested before the court.

[93]        
In regards to necessity, Nolan J. summarized the appropriate business
context approach in Hollowcore:

[172]    With respect to
necessity, unavailability is not a strict requirement to admitting hearsay. In Smith,
Lamer C.J. held that it also relates to expediency or convenience. In R. v.
L.(C.) the court held that calling the doctor who had authored a letter to
an abortion clinic regarding paternity a number of years earlier would be
unrealistic because it was such a routine letter that the doctor would be
unlikely to remember it.

[94]        
I note that, in this case, however, Ms. Laeeq did not recall the
specific male individual in the control room that she spoke to when she called
back, nor is there any record of who that individual was.

[95]        
The rule’s requirement that a declaration be made in the ordinary course
of duty by a person under the duty to make the record or report is consistent
with the fact that business reports, such as the nurses’ notes discussed above,
are often of a routine nature and do not lend themselves to detailed
recollection. The exception is in line with the principle of necessity, and I
do not consider that there is a principled reason to distinguish between
statements made orally and those made in writing in this respect.

[96]        
Turning to the application of the exception as summarized in the
Paciocco text to the facts of this case, the various requirements of the
common-law rule relating to the admissibility of declarations in the course of
duty are satisfied.

[97]        
The call Ms. Laeeq received from the control room was made
reasonably contemporaneously with her report of Mr. Mohamed’s fall. Based
on Ms. Laeeq’s evidence, likely no more than 20-25 minutes elapsed between
the two calls.

[98]        
Based on the evidence of Mr. Robinson, operators in the control room
are, when they receive a report of an incident, under a duty to bring up the
relevant video recordings, to “bookmark” those recordings, and to interact with
SkyTrain attendant who called in the incident. The relevant operator would,
based on his or her review of the relevant video footage, have personal
knowledge of what had occurred or of how Mr. Mohamed had fallen. The
subsequent communication or report of what the operator had viewed on the video
footage would not, again, be hearsay. There is also no need to identify the
specific person who made the record or, in this case, the report back to Ms. Laeeq;
see e.g. Trang v. Alberta, 2006 ABQB 824 at para. 14.

[99]        
Next, though this aspect of the requirements I have identified was
developed least fully in the evidence, I am satisfied that the operator who
later called Ms. Laeeq back was under a duty to call her and to report
what he had witnessed in the video footage.

[100]     The
interaction of these various actors is part of a coherent and integrated set of
obligations. The Canada Line attendant is required to call in and to make a
record of an incident. The operators in the control room are required to note,
bookmark, and log the incident in the way I have described. They are also
required to contact the Canada Line attendant in the event that further action
is required. In this case, no such action was required and Ms. Laeeq was,
in a sense, advised of that fact. The “bookmarked” event and the Canada Line
attendant’s report are also, where appropriate, reviewed the next day by one of
two HSQE coordinators for further consideration and for further report. In this
case, Ms. Martin was the person who was delegated these functions.

[101]     Finally, I
am satisfied that there was no motive, for the operator who called Ms. Laeeq,
to misrepresent the matters he reported or had witnessed from a camera. The
incident was, in the scheme of matters, relatively modest and quite common. It
was the very type of matter that an operator in the control room might deal with
multiple times each week.

[102]     I am,
therefore, satisfied that the constituent elements for the common-law
“declaration in the course of duty” exception are made out and that the Control-Room
Oral Communication to Ms. Laeeq is admissible.

Mr. Mohamed’s Evidence

[103]     I earlier
described Mr. Mohamed’s oral evidence. While the defendants do not say
that Mr. Mohamed is dishonest, they do say he is a poor historian. I agree
with that description for many reasons. Some of these reasons pertain directly
to the evidence he gave about his fall at the Aberdeen Station. Others pertain
to his evidence more generally.

[104]     Though there
are numerous examples of such difficulties, a few examples will suffice.

[105]     Mr. Mohamed
described, at some length, how he hit his head on the escalator when he fell.
He was adamant that he had sustained an injury to his head.

[106]     However, it
is clear that Mr. Mohamed did not suffer a head injury. Ms. Laeeq
said that when she attended to him she expressly asked him if he had suffered
any injury apart from his knee injury. She was told by him that he had not.
Such a question is a standard and common-sense question that Canada Line
attendants are trained to ask of all passengers who are injured. The Laeeq Report
is consistent with her having asked the question and with her evidence of Mr. Mohamed’s
response.

[107]     Similarly,
there is no reference in either the EHS or the Richmond Hospital records to Mr. Mohamed
having suffered a head injury. Still further, Dr. Chao, Mr. Mohamed’s
family physician, who Mr. Mohamed visited shortly after his fall, said
that Mr. Mohamed never reported having suffered a head injury arising from
his fall at the SkyTrain station to him.

[108]     Mr. Mohamed
also reported, for example, that after he fell, he yelled for help at different
times, started to hop down the stairs, saw a Canada Line attendant at the
bottom of the stairs when he was partway down and asked her for help. She then
went to call for an ambulance.

[109]     It is
patent that this aspect of Mr. Mohamed’s evidence is also inaccurate. It
is admitted, in a notice to admit, that Mr. Mohamed was sitting on a bench
outside of the station when he saw and then asked Ms. Laeeq for
assistance. Ms. Laeeq also testified that had Mr. Mohamed called for
help, she believed she would have heard him, and she said that he had been
sitting on the bench for some minutes before he waved her over. Ms. Laeeq’s
timeline is supported by the evidence and records I have referred to.

[110]     Another
relevant area of difficulty pertains to whether Mr. Mohamed, who admits to
having had two beer that afternoon or evening, had also taken prescription
medication. His discovery evidence suggested that he had. Mr. Mohamed’s
evidence at trial was that he had not, though that evidence was confused and
his explanation for the disparities in his evidence was not persuasive.

[111]     Yet
another example of difficulty with Mr. Mohamed’s recollection arises from
his description of his improving condition after the 2006 Accident and, in
particular, in the period shortly before his fall at the Aberdeen Station. In
particular, in his direct evidence, he described how he had been doing
volunteer work in that period of time with the hope of perhaps finding some sort
of casual and not terribly-demanding work. His cross-examination, and further
reference to various records, revealed that his efforts at volunteer work were,
in fact, very short-lived and problematic in numerous respects.

[112]     Apart from
these specific examples of difficulty with Mr. Mohamed’s evidence, I would
also describe him as a poor witness. He was prone to over-statement. He would
not yield when it was clear that he was mistaken but sought, instead, to
explain his answers with still less plausible and more strained explanations.

[113]     Having
said this, and though I do not accept Mr. Mohamed’s evidence, I do not
consider that he is lying when he said that he fell on the escalator at the
Aberdeen Station. This evidence is consistent with his first description of how
he was injured. It is what he first communicated to Ms. Laeeq, at a time
when he made no reference to a sign having misled him, and when he was simply
communicating that he had had an accident by trying to step on an escalator
that was ascending when he believed it would lead him out of the station.

[114]     Counsel
for Mr. Mohamed argues, in a related vein, that the various notes in the
EHS records and in the Richmond Hospital records, which simply record that Mr. Mohamed
fell on an “escalator”, should be admitted for the truth of their contents. I
note that while Ares accepted the admissibility of medical records as a
form of business records, patient-made statements recorded in clinical notes
are not admissible under that rule; Seaman v. Crook, 2003 BCSC 464 at para. 14.
Instead, counsel for Mr. Mohamed argues that, in this case, these
statements reflect spontaneous statements by Mr. Mohamed and, as such,
they constitute a recognized exception to the hearsay rule.

[115]     The
authors of the Paciocco text explain that such statements are admissible
because their “reliability is founded on the spontaneous making of the
statement before there is time for concoction. Necessity is based on expediency,
‘in the sense that there is no other equally-satisfactory source of evidence
either from the same person or elsewhere’”; at 186-187 (footnote omitted). The
authors further confirm that a declarant (here Mr. Mohamed), may testify
and that the spontaneous statement may also be admissible into evidence; at 187.

[116]     There are
several categories of spontaneous statement. The most fitting, in this case, is
the “excited utterance” classification. This category captures statements that
are made by a declarant in circumstances where “the declarant is under the
stress of excitement caused by the event or condition”; Paciocco at 191.

[117]    
In R. v. Andrews, [1987] 1 A.C. 281 at 300-301, the House of
Lords developed the following relevant guidelines:

1.         The primary question which the judge must, ask
himself is – can the possibility of concoction or distortion be disregarded?

2.         To answer that question the judge must first
consider the circumstances in which the particular statement was made, in order
to satisfy himself that the event was so unusual or startling or dramatic as to
dominate the thoughts of the victim, so that his utterance was an instinctive
reaction to that event, thus giving no real opportunity for reasoned reflection.

3.         In order for the statement to be sufficiently
“spontaneous” it must be so closely associated with the event which has excited
the statement, that it can be fairly stated that the mind of the declarant was
still dominated by the event. Thus the judge must be satisfied that the event,
which provided the trigger mechanism for the statement, was stilI operative.
The fact that the statement was made in answer to a question is but one factor
to consider under this heading.

4.         Quite apart, from the time factor, there may be
special features in the case, which relate to the possibility of concoction or
distortion.

5.         As to the possibility
of error in the facts narrated in the statement, if only the ordinary fallibility
of human recollection is relied upon, this goes to the weight to be attached to
and not to the admissibility of the statement and is therefore a matter for the
jury. However, here again there may be special features that may give rise to
the possibility of error.

[118]     In Andrews,
the victim of a stabbing identified his assailants to two police officers who
attended at the scene within 10 – 15 minutes of the attack. One of the officers
asked how the victim had been injured and the accused was named. The statement
was ruled admissible, notwithstanding the passage of time, and notwithstanding
the fact that the response was elicited by the police officer’s inquiry.

[119]     In this
case, the statements made by Mr. Mohamed to Ms. Laeeq would be
similar. They were statements made by Mr. Mohamed within some minutes of
his falling, while he was being attended to, and in response to Ms. Laeeq’s
inquiries. I am satisfied that these comments are properly “spontaneous
statements” and are, accordingly, admissible.

[120]     The
written references in the records of each of the EHS and Richmond Hospital are
somewhat different. This is primarily so because in neither case is it clear
that the relevant note is a communication made by Mr. Mohamed. Thus, as it
pertains to the EHS records, Mr. Mohamed said that he had no memory of
whether he communicated how he had fallen to the EHS officers who attended to
him. Similarly, though, Ms. Laeeq did not say she told the EHS attendants
how Mr. Mohamed had fallen. She did confirm that she, too, spoke briefly
to those same attendants. I also observe, based on the Control-Room Log Entry,
that more than 30 minutes had elapsed between when Mr. Mohamed fell and
when EHS personnel arrived at the Aberdeen Station, though I do not say that
this length of time, without more, would have caused me to deny the
admissibility of these records.

[121]     The
Richmond Hospital records suffer from similar frailties. Mr. Mohamed again
confirmed that he had no memory of what he told the nurses or other persons who
attended to him at the hospital about his fall. He also said that he did not
get home until five or six a.m. the next day, which means that he would have
been at the hospital for about five to six hours. It is not clear when the specific
records at issue were made during this period of time.

[122]     Thus, it
is not clear who said what to whom at what time so as to give rise to the
various records and specific entries that I was provided with. Under such
circumstances, I would not admit these records and, in particular, those
portions of the records that describe how Mr. Mohamed suffered his fall,
as “spontaneous statements”.

Conclusions

[123]     I am
satisfied, on the whole of the evidence, that Mr. Mohamed did not attempt
to use the escalator to exit the Aberdeen Station. Instead, I am satisfied that
he attempted to descend the stairs, that he stumbled on those stairs, and that
he thereby injured himself.

[124]     This
conclusion is based on the evidence of Ms. Martin, the Control-Room Log Entry
and the Control-Room Oral Communication to Ms. Laeeq. These various pieces
of evidence are coherent and consistent. The evidence of Ms. Martin is “supported”
by records that were generated contemporaneously.

[125]     Mr. Mohamed’s
evidence, conversely, is unreliable in that it is inconsistent and inaccurate
in numerous respects, many of which are material and directly relevant to the
circumstances of his fall.

[126]      Counsel
for the plaintiff accepts that, if I conclude Mr. Mohamed injured himself
on the stairs of the Aberdeen Station, there is no basis to impose liability on
the defendants.

[127]    
Accordingly, the plaintiff’s claim is dismissed. The defendants asked,
if they were successful, to be awarded their costs and disbursements of the
trial. That request was not opposed by the plaintiff. Hence, I make that order
as well.

“Voith
J.”