IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151015

Docket: M137844

Registry:
Vancouver

Between:

Sadric Albert
Whippy

Plaintiff

And:

Daniel Matthew
Akerley and

Tyler Arbuckle

Defendants

Before:
The Honourable Mr. Justice G. R. J. Gaul

Oral Reasons for Judgment (by telephone)

[1]            
THE COURT: These reasons for judgment are subject to editorial revisions
before their reproduction in final form. Those revisions may include the
insertion of additional references to the evidence, authorities, or
submissions. In no manner will the results of my decision be changed.

[2]            
In the early morning hours of 5 October 2013, the plaintiff, Mr. Whippy,
and the defendant, Mr. Akerley, were the only two occupants in a motor
vehicle that left the roadway and crashed at or near the intersection of 144th
Street and 100th Avenue in Surrey, B.C. The vehicle in question belonged to the
defendant Mr. Arbuckle.

[3]            
At the trial management conference that was held on 1 September
2015, Mr. Justice Blok ordered that the issues of liability and damages be
severed and that the question of liability be tried first.

[4]            
There is no dispute between the parties that the vehicle was being
operated in a negligent manner when it left the road and crashed. Therefore,
the principal issue to resolve is the identity of the person who was driving
the vehicle.

Discussion

  Background

[5]            
On 4 October 2013, Mr. Whippy, Mr. Akerley and a number of
their friends and associates attended a B.C. Lions football game. Prior to the
game and while they were at the stadium, Mr. Whippy and Mr. Akerley consumed a
significant amount of alcohol. Much evidence was led during the trial about the
type and quantity of alcohol that was consumed and the location where it was
consumed. I see no need to go into the details of that evidence. Suffice it to
say, I am satisfied that by the end of the football game, both Mr. Akerley
and Mr. Whippy were drunk.

[6]            
In his notice of civil claim, Mr. Whippy alleges that
Mr. Akerley was the driver of the vehicle when it crashed. Moreover, he
alleges that Mr. Akerley operated the vehicle in a negligent manner and is
consequently liable for the damages and losses Mr. Whippy has suffered.

[7]            
Mr. Whippy’s claim against Mr. Arbuckle is founded on
s. 86 of the Motor Vehicle Act and the contention that
Mr. Akerley obtained possession of the vehicle with Mr. Arbuckle’s
express or implied consent.

[8]            
Mr. Akerley has counterclaimed against Mr. Whippy, alleging
that it was Mr. Whippy who was the driver of the vehicle and whose
negligent operation of that vehicle caused the crash and resulting injuries to
Mr. Akerley.

  Evidence

[9]            
The following witnesses testified at trial:

a)   
the plaintiff, Mr. Whippy;

b)   
Constable Timothy Neufeld, the RCMP officer who attended at the accident
scene and who investigated the crash;

c)    
Mr. Terrance McManus, a paramedic with the B.C. Ambulance Service
who attended at the accident scene and treated Mr. Whippy;

d)   
the defendant, Mr. Akerley;

e)   
Ms. Chelsea Wright, Mr. Akerley’s common law partner and one of the
people who was at the football game with the parties;

f)     
the defendant, Tyler Arbuckle; and

g)   
Mr. Rowan Steel, a friend and workmate of the plaintiff and
defendants, who was present with them at the football game.

  Assessment of the
Evidence

[10]        
Although Mr. Whippy appeared to be an earnest witness during the
course of his testimony, I found his evidence generally unreliable and unpersuasive.
To begin with, it suffered from internal inconsistencies. He testified that he
was tired and wished to go home after the football game, however, he took no
steps to accomplish that goal. He did not discuss it with his friends during
the game nor did he raise it with them as they were returning to Mr. Akerley’s
residence. When Mr. Whippy, Mr. Akerley, and Ms. Wright arrived at
Mr. Akerley’s residence after the game, Mr. Whippy again took no
steps to arrange for a ride back home. In my opinion Mr. Whippy’s lack of
action to arrange a way home after the game is inconsistent with his assertion
that he was tired and wanted to go home.

[11]        
Mr. Whippy’s evidence of how he and his friends made their way to
the football game conflicted to a great extent with the evidence of all of the other
witnesses. He claimed that together he, the defendants and Ms. Wright drove
in Ms. Wright’s car to the Broadway SkyTrain station and then took the SkyTrain
to the football stadium. Mr. Whippy also maintained that they met Mr. Steel at
the Broadway SkyTrain station and not at Mr. Akerley’s home. All of this
evidence is squarely contradicted by the evidence of Mr. Steel, Ms. Wright
and both defendants. According to Mr. Steel and the others, he joined the group
at Mr. Akerley’s home and not the Broadway SkyTrain station. I accept this
evidence. Moreover, I accept that the group, including Mr. Arbuckle, did not
use Ms. Wright’s vehicle but instead took a taxi from Mr. Akerley’s residence
to a local pub where they purchased additional alcohol. Afterwards they continued
by taxi to the Gateway SkyTrain station and then by SkyTrain to the stadium.

[12]        
Mr. Whippy’s evidence about how he left the football game and
returned to Mr. Akerley’s home was equally unreliable. To a great degree,
Mr. Whippy’s evidence again conflicts with the evidence of other more
reliable witnesses, including Mr. Steel and Ms. Wright. Mr. Whippy
says he, Mr. Steel, Ms. Wright and Mr. Akerley left the stadium together and
took a SkyTrain to Broadway Station. From there they drove in Ms. Wright’s car
to Mr. Akerley’s house. In his testimony, Mr. Steel disagreed that he
travelled back to Mr. Akerley’s home after the game. According to Mr. Steel, he
took the SkyTrain home, leaving Mr. Whippy, Mr. Akerley and Ms. Wright
to take a taxi to Mr. Akerley’s home. Ms. Wright and Mr. Akerley
corroborated Mr. Steel’s evidence and confirmed that they and Mr. Whippy
returned to Mr. Akerley’s home by taxi.

[13]        
Irrespective of their means of travel, Mr. Whippy maintained that
Mr. Akerley was awake and alert during their trip back to Mr. Akerley’s
residence. This evidence was contradicted by that of Ms. Wright and
Mr. Akerley, both of whom testified that he, Mr. Akerley, was falling
asleep during the ride home. According to Ms. Wright, it was Mr. Whippy
who was alert during the cab ride to Mr. Akerley’s residence. Moreover,
she testified that on more than one occasion Mr. Whippy expressed a desire
for them to continue drinking and partying at his home. I have accepted Ms. Wright’s
evidence on this point.

[14]        
Mr. Whippy testified that he believed Mr. Akerley was sober
enough and able to drive a motor vehicle after the game. The evidence of
Mr. Steel, Mr. Akerley and Ms. Wright convinces me that
Mr. Akerley was far from sober and was in no condition to drive that
evening. This conclusion is also supported by the evidence of Constable
Neufeld, who testified that he believed Mr. Akerley was intoxicated when
he dealt with him at the accident scene. Moreover, I accept the evidence of
Mr. Akerley that he had little to no driving experience and did not
possess a driver’s licence. While Mr. Whippy did not have a B.C. driver’s
licence, he had had one for a number of years when he lived in Fiji.

[15]        
Mr. Whippy maintains that after the crash he was assisted from the
vehicle by emergency first responders who attended the scene. Mr. McManus testified
that when he encountered Mr. Whippy, Mr. Whippy was ambulatory and
standing outside the vehicle. For his part, Constable Neufeld had no
recollection of assisting Mr. Whippy out of the vehicle.

[16]        
Finally, there is Mr. Whippy’s testimony concerning his inability
to exit the vehicle from the passenger side. The photographs of the vehicle, taken
at the scene shortly after the accident, depict the vehicle with its passenger
door open. There is no evidence that any of the first responders opened the
door. In any event, it is clear to me that the door was operable and able to be
opened.

[17]        
There are also what I find to be logical inconsistencies in Mr. Whippy’s
evidence that give me reason to question or discount it. He testified that when
he, Mr. Akerley and Ms. Wright arrived back at Mr. Akerley’s
residence after the football game, he simply stood outside the house. He could
not explain why he did so or what he expected to happen. He also testified that
while Mr. Akerley was driving him home in Mr. Arbuckle’s vehicle, it suddenly
ran out of gas. For reasons that Mr. Whippy could not satisfactorily explain,
it was he, and not Mr. Akerley, who exited the vehicle and attended at a gas
station and paid for a jerry-can of gas. In doing so he left Mr. Akerley
in the vehicle, presumably in the driver’s seat. Why Mr. Whippy, the
passenger in a vehicle that did not belong to him, would take such steps and
moreover not seek any reimbursement for the gas, makes no logical sense to me. It
does, however, in my view accord with Mr. Akerley’s version of events that
it was Mr. Whippy who was driving the vehicle and that he, Mr. Akerley,
was asleep in the vehicle’s front passenger seat.

[18]        
Counsel for Mr. Whippy is correct when he argues that Mr. Akerley and
Mr. Arbuckle are not as impartial or disinterested as the other witnesses
and therefore their testimony should be approached with greater caution when
determining the evidentiary weight to attribute to it. To a lesser degree, the concerns
about Mr. Akerley and Mr. Arbuckle’s evidence could apply to Ms. Wright’s
evidence, given her personal relationship with Mr. Akerley. However, none
of these concerns apply to Mr. Steel or his evidence. Unlike Mr. Whippy,
Mr. Akerley, Mr. Arbuckle, and Ms. Wright, Mr. Steel did not consume any
alcohol prior to or at the game. In my opinion he was a neutral and objective
witness who was sober on the evening in question and whose evidence was both
credible and reliable. In reaching my decision in this case, I have placed
considerable weight on Mr. Steel’s evidence.

[19]        
In his testimony, Mr. Akerley agreed that when Constable Neufeld spoke
to him at the accident scene, he lied to the officer when he said he knew nothing
about the crash. Mr. Akerley also admitted that he was an active
participant in the potential conspiracy that would have had both parties
claiming they did not remember who was driving the vehicle. Finally, there were
a number of text messages between Mr. Akerley to Mr. Whippy in the
days following the accident that, according to counsel for Mr. Whippy, indicate
it was Mr. Akerley who was trying to save himself from the consequences of
having driven on the night in question. Mr. Akerley explained that the
text messages related to his efforts to assist his friend. According to Mr.
Akerley, his goal was to help Mr. Whippy avoid being charged with impaired
driving. He also wanted to help him obtain financial coverage for his medical
treatment. Counsel for Mr. Whippy argues that the text messages indicate
Mr. Akerley was aware of his culpability as the driver of the vehicle and was
trying to ensure Mr. Whippy would play along with his plan to deceive the
police and the Insurance Corporation of British Columbia. In my opinion the
text messages suggest the parties were concocting a story that would exculpate
both of them from any responsibility for the accident. However, on a balance of
probabilities I am unable to conclude anything more than that and cannot find
that counsel for Mr. Whippy’s interpretation of the messages is the correct
one. In other words, I am not persuaded that one interpretation is any better
or more believable than the other.

[20]        
Finally, I wish to address an aspect of Ms. Wright’s evidence that
I find supports Mr. Akerley’s assertion that it was Mr. Whippy who was the
driver of the vehicle. Ms. Wright testified that when she,
Mr. Akerley and Mr. Whippy arrived at Mr. Akerley’s home after the
game, she exited the taxi and proceeded into the house. She added that
Mr. Whippy also exited the cab and followed her into the residence. At
this point Mr. Akerley was still in the cab. Ms. Wright explained that
once she was inside the residence, she went straight to the bathroom. She then
heard the keys to Mr. Arbuckle’s vehicle being taken off the hook that was at
the front door area of the house. She quickly exited the bathroom and the
residence, only to see the vehicle being driven away. Ms. Wright testified that
from a very limited vantage point, and for only a short duration, she noticed a
larger silhouette in the passenger seat than the one in the driver’s seat. It
is conceded by all parties that Mr. Akerley is larger than
Mr. Whippy. I do not place great weight on Ms. Wright’s observations
of the vehicle as it was being driven away, given the frailties of that
evidence. However, I do accept that it was Mr. Whippy and not
Mr. Akerley who followed Ms. Wright into the residence. The logical
inference to be drawn from this and what happened next is that it was Mr.
Whippy who retrieved the keys to Mr. Arbuckle’s car. As Mr. Whippy
was the one who wanted the party to continue at his house, I find all of this
evidence points to him being the driver.

[21]        
What makes the difference in this case is the evidence of Mr. Steel,
Mr. McManus, Constable Neufeld and Ms. Wright. I find their evidence
corroborates the essential elements of Mr. Akerley’s version of the events
to such a degree that it is preferable to Mr. Whippy’s.

Conclusion

[22]        
The only question to be answered in this trial is, who was driving the
car when it crashed. The applicable burden of proof was articulated in F.H.
v. McDougall, 2008 SCC 53, where at para. 49 Mr. Justice Rothstein
observed:

… in civil cases there is only
one standard of proof and that is proof on a balance of probabilities. In all
civil cases, the trial judge must scrutinize the relevant evidence with care to
determine whether it is more likely than not that an alleged event occurred.

[23]        
The evidence presented by the plaintiff in support of his claim was at
times inconsistent or implausible. At other times, it was clearly at odds with
the evidence of the other witnesses. Moreover, there was a noticeable lack of
evidence on the part of the plaintiff. For example, there is no evidence
linking the crack in the windshield on the passenger side of the vehicle with
any injuries suffered by Mr. Whippy. While there is some evidence that after
the accident Mr. Whippy had a bump somewhere on his head, beyond that
there is little else and there is nothing linking that injury to the damaged
windshield.

[24]        
On the whole I have preferred the evidence presented by the defendants
over that presented by the plaintiff. Applying the test articulated by
Mr. Justice Rothstein in F.H., I find it is more likely than not
that the driver of the vehicle was Mr. Whippy. In light of that
conclusion, I must find that Mr. Whippy has not proven his case against
Mr. Akerley.

[25]        
Counsel for Mr. Whippy acknowledged during his final submissions
that there was no evidence before the court that could support the plaintiff’s claim
against Mr. Arbuckle. As such, counsel invited me to dismiss that portion
of Mr. Whippy’s action. I agree there is no evidence that Mr. Akerley had
the express or implied consent of Mr. Arbuckle to drive his car on the
night in question. In fact, based on the evidence I do have, I find that no
such consent was sought or given.

[26]        
In the result, Mr. Whippy’s action against Mr. Akerley and
Mr. Arbuckle is dismissed.

[27]        
With respect to Mr. Akerley’s counterclaim, I am satisfied on a
balance of probabilities that Mr. Whippy was the driver of the vehicle
when it crashed, and I therefore find him liable for the accident.

[28]        
I will remain seized of this matter. If there is a need to determine what,
if any, compensable damages Mr. Akerley is entitled to, then counsel are
to schedule a trial management conference before me prior to the fixing of any
trial date.

[29]        
Mr. Akerley and Mr. Arbuckle have successfully defended
themselves against the claims advanced by Mr. Whippy. Consequently, they
are entitled to their ordinary costs with leave to apply.

[30]        
Those are my reasons. Mr. Hughes, Mr. Cote and Mr. Knapp,
did you hear them clearly?

[31]        
MR. HUGHES:  Yes, My Lord.

[32]        
MR. COTE:  Yes, My Lord.

[33]        
MR. KNAPP:  Yes, My Lord.

[34]        
THE COURT:  Thank you, gentlemen.

                 “G.R.J.
Gaul, J.”                       

The
Honourable Mr. Justice G. R. J. Gaul