IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160108

Docket: M122794

Registry:
Vancouver

Between:

Roberto Angelo
Pavan

Plaintiff

And:

Remo Guolo and
Canusa Limos Ltd.

Defendants

Docket: M123759

Registry: Vancouver

Between:

Julie K.
Savage-Wade

Plaintiff

And:

Brown Bros. Motor
Lease Canada Ltd. dba Brown Bros. Motor Lease,
Brown Bros. Motor Lease, Canusa Limos Ltd.,
Remo Guolo and Roberto Angelo Pavan

Defendants

Docket: M120546

Registry: Vancouver

Between:

Patrick William
Evans

Plaintiff

And:

Brown Bros. Motor
Lease Canada Ltd., dba Brown Bros. Motor Lease,
Brown Bros. Motor Lease, Canusa Limos Ltd.
Remo Guolo and Roberto Angelo Pavan

Defendants

Docket: M123762

Registry: Vancouver

Between:

Cheryl Skaar

Plaintiff

And:

Brown Bros. Motor
Lease Canada Ltd., dba Brown Bros. Motor Lease,
Brown Bros. Motor Lease, Canusa Limos Ltd.
Remo Guolo and Roberto Angelo Pavan

Defendants

Docket: M121540

Registry: Vancouver

Between:

Dean E. Butler

Plaintiff

And:

Brown Bros. Motor
Lease Canada Ltd., dba Brown Bros. Motor Lease,
Brown Bros. Motor Lease, Canusa Limos Ltd.
Remo Guolo and Roberto Angelo Pavan

Defendants

Docket: S121076

Registry: Vancouver

Between:

Edonna A. Fisher

Plaintiff

And:

Brown Bros. Motor
Lease Canada Ltd., dba Brown Bros. Motor Lease,
Brown Bros. Motor Lease, Canusa Limos Ltd.
Remo Guolo and Roberto Angelo Pavan

Defendants

Before:
The Honourable Mr. Justice Burnyeat

Reasons for Judgment

[1]            
This part of this Trial only deals with the question of liability. A
vehicle driven by Mr. Pavan and a vehicle driven by Mr. Guolo
collided at the intersection of Davie and Hornby Streets on the morning of Wednesday,
September 22, 2010. The collision was caused by one or both of the vehicles entering
the intersection while the traffic light facing them was red. Mr. Pavan
was the only occupant in his 2001 Volkswagen Jetta. The 2004 Ford Excursion being
driven by Mr. Guolo was occupied by Mr. Guolo and the Plaintiffs,
Julie K. Savage-Wade, Patrick William Evans, Cheryl Skaar, Dean E.  Butler
and Edonna A. Fisher. Those Plaintiffs were being driven to the airport so that
they could be the flight crew of a departing Delta Airlines flight. The vehicle
being driven by Mr. Guolo was owned by Canusa Limos Ltd. and Brown Bros
Motor Lease Ltd.

[2]            
The accident took place somewhere between about 5:10 a.m. and about 5:20
a.m. It was a work day for Mr. Pavan and he was driving his vehicle northbound
on Hornby Street so that he could arrive at work at approximately 5:15 a.m. The
vehicle driven by Mr. Guolo was proceeding eastbound on Davie Street so that
he could make a right turn one block later on to Howe Street. If the light facing
Mr. Pavan at the Hornby and Davie Street intersection was red when the
vehicle entered the intersection, Mr. Pavan is liable for the damages that
resulted. If the light facing Mr. Guolo was red, then Mr. Guolo is
liable for the damages that resulted. It is possible for the two lights to be
red at the same time for 1.5 seconds. If both lights were red, Messrs. Guolo
and Pavan would share liability.

[3]            
Mr. Pavan testified that this was his usual route to his workplace
at 666 Burrard Street. While Mr. Guolo, at his October 18, 2003
Examination for Discovery, stated that he drove through the intersection of
Hornby and Davie “every day”, at Trial he stated that this was not his “usual”
route and that he would ordinarily have turned left off Burrard at the Nelson
intersection.

AGREED STATEMENT OF FACTS

[4]            
An agreed statement of facts was filed as an Exhibit. There were various
photographs taken at the scene. It is agreed that those photographs were taken
within one hour after the collision. There was also an agreement that the
distance between the mid‑point of the intersection at Burrard and Davie Street,
where Mr. Guolo states that he had made a left turn to travel on Davie Street
and the intersection at Davie and Hornby Street, is 104.1 metres and that the
distance between the mid‑point of the intersection of Drake and Hornby Street
where Mr. Pavan states he was stopped at a red light and the mid‑point
of the intersection of Hornby and Davie Street is 163.8 metres.

[5]            
I accept the testimony of Mr. Pavan that his vehicle was stopped at
a red light at Drake and Hornby before he proceeded northbound on Hornby when
the traffic light there turned green. I accept the testimony of Mr. Guolo
that the light facing him at Davie Street and Burrard Street was green when he
made a left turn in order to travel east on Davie Street. There is no evidence
before the Court regarding how long the light at Burrard and Davie Street had
been was green when Mr. Guolo made his left turn on to Davie Street.

[6]            
Hornby Street has one‑way northbound traffic. Davie Street has
east to west traffic moving in both directions.

[7]            
The traffic signals were coordinated for northbound traffic on Hornby Street.
I find that the northbound light turns green on Hornby at Davie 12 seconds
after the northbound light at Drake and Hornby turns green. I find that the
approximate travel time from Drake and Hornby to Davie and Hornby would be 11.80
seconds if a vehicle was driving on average at 50 kmph or 10.72 seconds if a
vehicle was driving on average at 55 kmph.

[8]            
The designated signal sequence and timings in effect at the intersection
of Hornby and Davie on September 22, 2010 were agreed as being as follows:

[9]            
There was also an agreement regarding the distance a vehicle would
travel at various kilometres per hour:

a.   A
vehicle travelling 40 kmph travels 11.11 m/second.

40 km =
40,000 m

40,000 m / 3,600 seconds = 11.11

b.   A
vehicle travelling 45 kmph travels 12.5 m/second.

45 km =
45,000 m

45,000 m
/ 3,600 seconds = 12.5

c.   A
vehicle travelling 50 kmph travels 13.88 m/second.

50 km =
50,000 m

50,000 m
/ 3,600 seconds = 13.88

d.   A
vehicle travelling 55 kmph travels 15.28 m/second.

55 km =
55,000 m

55,000 m
/ 3,600 seconds = 15.28

e.   1 meter = 3.28 feet

TESTIMONY OF THE WITNESSES

(a)  The Time of the
Collision

[10]        
On the question of what time the collision occurred, Mr. Pavan
testified that it was “a few minutes either side of 5:10 am”. However, Mr. Pavan
confirmed that he had stated “approximately 5:14 a.m.” in an October 24, 2010
statement that he had made. When it was put to him at Trial that it was approximately
5:15 a.m., he answered: “I think it was a little earlier than that.”

[11]        
At Trial, Mr. Guolo testified that he was scheduled to pick up his
passengers at their hotel at 5:15 a.m. but, when his counsel questioned that
statement, he responded, “Quarter after five, ten after five, just shortly
after five.” He also stated he waited a few minutes at the hotel after he
arrived “about not even ten minutes”. When asked how long it took him to drive
from the hotel to Burrard and Davie, he stated: “You know, it’s ten, 12
minutes, really right time I can give you the right time.”

[12]        
Mr. Butler testified that they had left the hotel at about 5:10
a.m. and that he guessed that they travelled between three and five minutes
before the collision occurred.

[13]        
P.A.A. testified that he thought that the collision had occurred about
5:20 a.m. He did confirm that he had indicated in an earlier statement that it
was 5:10 a.m.

(b)  The Speed of
the Vehicles

[14]        
I find that Hornby is a one‑way street going south to north. Mr. Pavan
testified that he was in the left hand curb lane as he approached Davie Street,
that he saw the light turn green “so I knew I would be continuing”, that he
moved “into the middle lane”, that “he wasn’t pushing the car at all” and that
he thought his speed approaching the Hornby and Davie intersection was “pretty
much right on 50 kilometres per hour”. He also stated that, as he approached
the intersection, he noticed that the “walking man signal” was illuminated
which indicated to him that he had “lots of time to make the light so I just
held my speed” “I didn’t accelerate hard, no.” Mr. Pavan also confirmed
that he did not slow down as he approached the intersection.

[15]        
P.A.A. stated that he saw the vehicle being driven by Mr. Pavan
coming towards him and stated: “So it seems like he was coming at the normal
speed, that’s for sure”. Regarding the question of whether the vehicle being
driven by Mr. Pavan was accelerating or not, he stated: “No” “It seemed
like he was at normal speed.”

[16]        
Regarding the speed of the vehicle being driven by Mr. Guolo, Mr. Evans,
at his January 16, 2014 Examination for Discovery, guessed that the vehicle was
travelling between 30 to 40 mph on Davie Street as it approached the
intersection of Davie and Hornby but added: “I don’t the kilometre equivalent.”

[17]        
Mr. Butler estimated that the vehicle driven by Mr. Guolo was
travelling at between 40 kmph and 50 kmph. When asked under cross‑examination
whether the vehicle being driven by Mr. Guolo vehicle was going at or
below the speed limit, Mr. Butler answered, “I would have to say
yes”.

[18]        
At his October 18, 2013 Examination for Discovery, Mr. Guolo was
asked if he knew the speed limit on Davie Street and he answered: “About — it was about 35 to 40, 30 to
40, something like that. Below 40”. At the same time, he was asked to confirm whether
he thought the speed limit in the City of Vancouver was between 30 and 40 kmph
and he confirmed that to be the case. At Trial, Mr. Guolo stated that the
speed limit was “50 in town”. On whether his speed that morning was between 40
and 45 kmph, he answered: “40, 45, at –
just wild guess. I don’t –
I don’t go unless the limo kept all the time in that – in that speed.” He was reminded what he had
stated at his Examination for Discovery and he responded that his answer then was
not true “I was going faster than that”. Mr. Guolo was asked what the
speed limit along Davie was and he responded, “45, 50 – 45, 50”. He was then asked, “Is it 45 or 50?”
and he responded “Yes”. When the question was repeated, he then stated: “It’s
50”. When asked what his speed was as he was approaching the intersection, he
answered: “I would say 40, 45, I don’t –
I don’t know the – I
don’t watch the speed at the time. I don’t know”.

[19]        
The testimony of P.A.A. at Trial relating to the speed of the vehicle
being driven by Mr. Guolo was as follows: “And I noticed they were coming – skidding – they were pretty fast. I know that.”
“I know they were speeding”. “The Excursion [driven by Mr. Guolo] guys has
no intention to stop.” “I don’t see like his – his slowing down, he just kept
fast going.” “It was speeding” “Not to say it’s going like 80 miles an hour or
whatever, because I’m not – I don’t have the thing, but I’m pretty sure it was
speeding.” Under cross‑examination, P.A.A. stated: “I don’t think I’m an
expert in that stuff, but it was speeding for sure. I can hear the engine. It
was speeding.”

(c)  Did the Vehicle
Being Driven by Mr. Guolo Speed Up as it Approached the Intersection?

[20]        
At his Examination for Discovery, Mr. Guolo was asked the following
question and gave the following answer: “Q. When you saw the light change from
green to yellow…at the intersection, did you speed up? A. Yes.”. At Trial,
when he was asked whether he sped up to go through the intersection he responded:
“I don’t remember.” “I don’t remember yes or no – I don’t remember.”  He also responded: “I went
through the way I was. I don’t speed up at all. I was going my speed.” “I went
through, I don’t remember if I speed up”.

[21]        
Mr. Butler testified that he did not think the vehicle being driven
by Mr. Guolo accelerated as it entered the intersection and stated: “No. It
was a constant speed.”

(d)  Lanes of
Traffic on Davie

[22]        
Mr. Guolo was asked how many lanes of traffic were on Davie Street and
he responded three: “two and parking. Driving is two.” The photographs in
evidence show that, at the time of the photograph taken one hour after the
collision, there were two lanes of traffic on Davie heading east but that the south
curb lane was blocked with red traffic cones so that there was effectively only
one lane of traffic heading east. It appears that the red traffic cones were
placed in order to prohibit traffic in the curb lane because of ongoing
construction and/or repair of the road surface. Regarding the traffic cones, Mr. Guolo
stated at Trial: “I don’t think they were there at the time”. Mr. Guolo
was asked whether, if he was driving in the curb lane, did he notice that it
was “bumpy” and he replied that he was “missing” the bumps. Regarding whether
he was stating that the traffic cones were not there that morning at the time
of the collision, Mr. Guolo responded, “No, I don’t – I didn’t see”. He then
conceded that it was possible that he might not have been in the curb lane.

(e)  Distance Away
From Hornby When the Light Turned to Amber

[23]        
Mr. Guolo was asked how far away from the intersection of Davie and
Hornby he was when he noticed that the light turned from green to amber. When it
was put to him that he had given a statement on October 6, 2011 indicating that
the light had turned amber when he was 15 feet away from the intersection. Mr. Guolo.
responded, “Maybe an estimate”. When asked whether he remembered saying that in
his statement, Mr. Guolo stated: “I might –
but I don’t remember.” When asked at Trial whether it could be more than 25 to
30 feet, Mr. Guolo responded, “No, I don’t think so”. When asked
whether it could have been in excess of 35 feet, he responded: “I don’t know.
Could be – I couldn’t
easily say.”  “I can’t say no. Can’t say is 50, 40, you know.”  When asked the
following question at Trial, Mr. Guolo gave the following answer when
being cross-examined:

Q.        Are you
telling me that you don’t know now and you can’t give accurate evidence about
how far you were from the intersection when the light turned amber is that
correct?

A.         Yes.

[24]        
At Trial, Mr. Butler confirmed that he did not see the light change
from green to amber. He also could not remember whether the light at Davie and
Burrard was amber or green and he stated: “I do not remember it as being yellow
– so I make the
assumption that it was still green”.

(f)   Where in
the Intersection Did the Collision Occur?

[25]        
Mr. Pavan stated that the collision occurred in the “middle lane”
on Hornby Street. He testified that he was in the left hand (west) lane as he
approached Davie Street, that he moved his vehicle into the middle lane, and that
he proceeded into the intersection as the traffic light facing him was green. Mr. Pavan
stated that, after entering the intersection “I heard a loud roar of an
engine was gunning” when I slammed on my brakes –
I turned hard to the right and then a collision occurred” “Had my
foot on the brake the whole time, and my vehicle struck the – the other vehicle around the
passenger door area and I started spinning, and then the rear of my vehicle I
believe hit the vehicle again. The vehicle was skidding into the other vehicle.
I had anti‑lock brakes, but I don’t think –
I felt the sensation of sliding I think.” From the photographs in evidence, it
is apparent that the vehicle of Mr. Pavan initially collided with the
front passenger door and the engine compartment ahead of the front passenger
door of the vehicle being driven by Mr. Guolo.

[26]        
Mr. Guolo testified that the light facing him had turned amber
prior to his vehicle entering the intersection. When Mr. Guolo was asked
at Trial how far into the intersection his vehicle was before there was a
collision, he put an “x” on one of the photographs in evidence indicating that
it was at the beginning of the through lane on Hornby Street.

[27]        
Mr. Butler testified as follows regarding the location of the
collision:

Just before entering the intersection I looked outside — I
noted that the light on the other side of the intersection was yellow, and I
looked both sides to basically back up the driver, to confirm that there were
no — no traffic coming. There were no vehicles waiting. I saw no pedestrians in
the intersection in front of us. As we entered the intersection the light was
yellow and I specifically watched the light as it passed overhead and
disappeared out of sight and at that point it was still yellow.

I observed the light up until the point we were almost across
Hornby or in the third or last lane as the light disappeared out of sight at
the top of the windshield.

Just as the light disappeared out
of sight overhead and I lost sight of it, I saw a flash of motion from the
right, and as I turned my eyes and began to turn my head I saw a vehicle moving
fast towards us, a split second before it impacted us.

[28]        
On the question of when he lost sight of the traffic control device, Mr. Butler
testified: “I believe we were in the last of the lanes before clearing Hornby.”
“Yes. It was in the intersection between Hornby and Davie. I lost sight of
it somewhere between the beginning of the bicycle lane and the [right hand]
curb”. He was then asked to confirm that the vehicle being driven by Mr. Guolo
was about two thirds of the way through the intersection “or maybe a little
more” and he stated that he could say “with certainty” that the light was still
amber.

[29]        
P.A.A. was asked where the collision occurred and he marked on one of
the photographs in evidence a spot roughly at the beginning of the lane for
through traffic on Hornby Street. The “accent” of P.A.A. was close to the
“accent” marked on the Exhibit by Mr. Guolo.

(g)  Testimony of
P.A.A.

[30]        
P.A.A. was a reluctant witness and it was necessary for the sheriff to
bring him before the Court. At Trial, P.A.A. stated he was going to his gym on
the morning of September 22, 2010, he was walking east on Davie Street, he was a
few steps from the intersection of Davie and Hornby when he saw the light turn yellow,
he stopped on the southwest corner of Davie and Hornby when he saw that the
light had turned red for traffic on Davie, he turned his head to the right and
saw the Pavan vehicle coming towards him on Hornby, and he heard “an engine
behind” him so he turned his head to the left and saw the vehicle driven by Mr. Guolo.
He testified that he realized there was going to be a collision so he moved
away from where he was standing in case one of the vehicles came on to the
sidewalk and “hurt him”. P.A.A. noticed the traffic light when he was a number
of steps away from the intersection and stated at Trial that the traffic
control light facing east/west was amber when he first saw it but then it turned
red. In this regard, he was asked the following question and gave the following
answer:

Q.        How long does it take you to walk to the corner?

A.         A few steps like — I don’t know
it would be from here to where the where she’s at [referring to the Court clerk
who was approximately 15 feet away from him] probably I think it is. It’s not
too far. It’s a few steps and it turns red. I confirm that the light turned red
by the time he got to the corner.

PROVISIONS OF THE MOTOR VEHICLE ACT

[31]        
The applicable provisions of the Motor Vehicle Act, R.S.B.C. 1996
c.318 (“Act”) are:

127 (1) When a green light alone is exhibited at an
intersection by a traffic control signal,

(a) the driver of a vehicle facing
the green light

(i) may cause the vehicle to
proceed straight through the intersection, or to turn left or right, subject to
a sign or signal prohibiting a left or right turn, or both, or designating the
turning movement permitted,…

(iii) must yield the right of way
to vehicles lawfully in the intersection at the time the green light became
exhibited, and

128(1)  When a yellow light alone is exhibited at an
intersection by a traffic control signal, following the exhibition of a green
light.

(a) the driver of a vehicle
approaching the intersection and facing the yellow light must cause it to stop
before entering the marked crosswalk on the near side of the intersection, or
if there is no marked crosswalk, before entering the intersection, unless the
stop cannot be made in safety.

129(1)  … when a red light alone
is exhibited at an intersection by a traffic control signal, the driver of a
vehicle approaching the intersection and facing the red light must cause it to
stop before entering the marked crosswalk on the near side of the intersection,
or if there is no marked crosswalk, before entering the intersection, and
must not cause the vehicle to proceed until a traffic control signal instructs
the driver that he or she is permitted to do so.

DUTY OF CARE OWED

[32]        
While the provisions of the Act provide guidelines for
assessing fault in motor vehicle accident cases, the Court must always
determine whether each of the parties in an accident met their common law
duties of care to others. In Salaam
v. Abramovic, 2010 4 B.C.L.R. (5th) 117 (C.A.), Groberman, J.A., on behalf
of the Court, made the following statements in this regard:

While the statutory provisions provide guidelines for
assessing fault in motor vehicle accident cases, they do not, alone, provide a
complete legal framework.

In the end, a court must determine whether, and to what
extent, each of the players in an accident met their common law duties of care
to other users of the road. In making that determination, a court will be
informed by the rules of the road, but those rules do not eliminate the need to
consider the reasonableness of the actions of the parties. This is both because
the rules of the road cannot comprehensively cover all possible scenarios, and
because users of the road are expected to exercise reasonable care, even when
others have failed to respect their right of way. While s. 175 of the Motor
Vehicle Act and other rules of the road are important in determining
whether the standard of care was met, they are not the exclusive measures of
that standard.

(at paras. 18 and 21)

[33]        
In dealing with the duty of any motorist to “exercise due care” when
proceeding through a green light, Des Brisay C.J.B.C on behalf of the Court in Wong
v. West (1959) 30 W.W.R. 526 (B.C.C.A.) made the following statement:

He owed no duty to traffic entering the intersection in
disobedience to the lights, beyond a duty that, if he in fact saw such traffic,
he ought to take all reasonable steps to avoid a collision.

(at para.4)

[34]        
Wilkinson v. Whitlock [2001] B.C.J. No. 2495 (S.C.) dealt
with a plaintiff proceeding through a green light. Barrow J. stated that a
defendant who had proceeded through an intersection against a red light will be
found at fault for any ensuing accident and entirely at fault in the absence of
the negligence of others: at paragraph 10.

WHO HAS THE ONUS OF PROOF?

[35]        
Mr. Pavan is both a Plaintiff and a Defendant. By agreement, these
six actions were to be tried at the same time and evidence in each was to be
evidence in all.

[36]        
Each Plaintiff must prove each of the elements of a claim in negligence:
(a) that the defendant owed a duty of care to the plaintiff; (b) that the
defendant breached the duty of care by falling below the standard of care in
the circumstances; and (c) that the defendant’s breach of the duty of care
caused injury to the plaintiff. The burden of proof does not change in any way
because all six actions have been set for hearing together. The Plaintiff in
each action bears the burden of proving that which is alleged.

[37]        
Mr. Pavan bears the burden of proof in in Action No. M122794, Mr. Butler
bears the burden of proof in Action No. M121540, Mr. Evans bears the
burden of proof in Action No. M120546, Ms. Fisher bears the burden of
proof in Action No. S121076, Ms. Savage-Wade bears the burden of
proof in Action No. M123759 and Ms. Skaar bears the burden of proof
in Action No. M123762.

[38]        
As it was decided that Mr. Pavan was to present his evidence first,
I will deal first with the question of whether Mr. Pavan has proven on a
balance of probabilities that Mr. Guolo was negligent and was the sole
cause of the collision which occurred on September 22, 2010.

DISCUSSION

[39]        
On the bases of the testimony of Mr. Butler who indicated that they
had left the hotel at 5:10 and that travelling time was between three and five
minutes, of the testimony of Mr. Guolo and of what Mr. Pavan stated
on October 24, 2010, I find that the collision took place at 5:15 a.m.

[40]        
Mr. Pavan was cross-examined extensively regarding the time of the
collision as it was put to him that he would ordinarily arrive at his place of
employment by 5:15 a.m., that he was already late, and as a result, he was
travelling in excess of the speed limit. Despite extensive cross‑examination,
I cannot reach the conclusion that Mr. Pavan was “late” and was therefore
speeding. I accept the evidence of Mr. Pavan that his expected arrival
time was between 5:00 a.m. and 5:20 a.m. and that, upon arrival, he would
sit for about 1/2 an hour with the person he was replacing. On the basis of his
testimony, I find that Mr. Pavan had sufficient flexibility regarding
when his duties at work commenced to arrive at work later than 5:15 a.m. As
well, I accept what was in evidence and conclude that the lights along
Hornby are coordinated so that all lights would be green if the speed 50 kmph is
maintained. I find that Mr. Pavan had the ability to arrive at his place
of employment in sufficient time to commence his duties even though he was at
the intersection of Davie and Hornby at 5:15 a.m.

[41]        
In accordance with the Agreed Statement of Facts, I find that the light
at Hornby and Davie turned green 12 seconds after the northbound light at Drake
and Hornby turned green so that the travel time from Drake and Hornby to Davie
and Hornby would be slightly less than 12 seconds if the vehicle of Mr. Pavan
was proceeding on average at 50 kmph. However, I conclude that it would not
have been possible for his vehicle to have proceeded at 50 kmph on average after
the northbound light at Drake and Hornby turned green. From a “standing” start,
the vehicle being driven by Mr. Pavan would initially be at a speed much
less than 50 kmph even if it eventually was proceeding at or even in
excess of the speed limit.

[42]        
On the basis of the testimony of P.A.A. and Mr. Pavan, I conclude
that the vehicle of Mr. Pavan was not exceeding the speed limit as he approached
the intersection of Hornby and Davie. Even if I could have reached a
contrary conclusion, I could not conclude that any such excess speed at
this point would have resulted in the vehicle of Mr. Pavan reaching the intersection
of Davie and Hornby at a speed which averaged in excess of 50 kmph. I conclude
that the vehicle being driven by Mr. Pavan arrived at the intersection of
Hornby and Davie no less than 12 seconds after Mr. Pavan left the
intersection at Drake and Hornby.

[43]        
Regarding the testimony of Mr. Evans at his Examination for
Discovery relating to the speed of the vehicle driven by Mr. Guolo, I note
that he was seated behind Mr. Guolo and would not have been in a position
to be as observant about the speed limit as Mr. Guolo or Mr. Butler.
Accordingly, I do not accept his testimony that the vehicle being driven by Mr. Guolo
was travelling between 30 and 40 mph on Davie Street as it approached the
intersection of Davie and Hornby. I am satisfied that Mr. Butler was more
likely than Mr. Evans to be aware of the speed of the vehicle being driven
by Mr. Guolo. Accordingly, I accept the evidence of Mr. Butler that
the vehicle being driven by Mr. Guolo was travelling at or slightly under
50 kmph as it approached the intersection.

[44]        
Mr. Guolo was not an impressive witness on almost all matters
dealing with what occurred that morning and the information relating to the
collision. His testimony was inconsistent or contradictory on almost all
aspects of what occurred –
the time he arrived at the hotel to pick up his passengers; the time the
collision occurred; the number of lanes of traffic on Davie Street; the speed
limit in the City of Vancouver; the speed he was travelling while on Davie
Street; whether he sped up when he saw the amber light facing him; what lane he
was travelling in as he approached the intersection; and how far away from
Davie and Hornby he was when he saw the light facing him turn amber. While I
can attribute the inconsistencies to memory or language difficulties
experienced by Mr. Guolo, I prefer the straightforward and consistent
evidence of Mr. Pavan and P.A.A. as to what occurred that morning.

[45]        
I also take into account the obvious errors that Mr. Guolo made
regarding Davie Street. It is clear that he is incorrect in suggesting that
there were three traffic lanes heading east on Davie Street or that vehicles
could travel in the right curb lane. I am not prepared to find that the cones
would have been placed on Davie Street between 5:15 a.m. and approximately 6:15
a.m. I find that the red traffic cones were placed on Davie Street prior to the
collision. Even if I could conclude that there were no traffic cones on Davie
Street in the curb lane prior to the collision, I conclude that Mr. Guolo’s
recollection of the conditions on Davie Street that day is incorrect as any
driving in the south curb lane would have produced a very “bumpy” ride and Mr. Guolo
had no such recollection of such “bumpiness”.

[46]        
Regarding the speed of his vehicle, Mr. Guolo was confused about
the general speed limit in the city and could only make “a wild guess” about
his speed that morning. In accordance with his testimony, I conclude that he
did not “watch the speed at the time” and that he did not know what his speed
was when his vehicle was approaching the intersection of Davie and Hornby.
While P.A.A. testified that he believed that Mr. Guolo was speeding as he
approached the intersection, I cannot reach the conclusion the vehicle being
driven by Mr. Guolo was driving in excess of 50 kmph as it was approaching
the intersection of Davie and Hornby.

[47]        
However, I have concluded that Mr. Guolo caused his vehicle to
speed up when he saw the light change from green to amber. I find it more
likely that the answer given at his Examination for Discovery is more accurate.
I also take into account his inability to remember at Trial whether he had
sped up or not. I find that the vehicle being driven by Mr. Guolo was
driving at or near the speed of 50 kmph as he approached the intersection of
Davie and Hornby but that he sped up when he saw that the light had turned to
amber.

[48]        
On the critical question of how far away from the intersection of Davie
and Hornby the vehicle being driven by Mr. Guolo was when Mr. Guolo
noticed that the light turned from green to amber, the testimony of Mr. Guolo
is again contradictory. In his October 6, 2011 statement, it was 15 feet. At
Trial, Mr. Guolo estimated that it could have been anywhere between 25 and
in excess of 35 feet. I find that his most accurate statement in this regard
was his answer “yes” when he was asked at Trial whether it was the case that he
did not know and could not give an accurate estimate of how far away he was
from the intersection when the light turned amber.

[49]        
Regarding the testimony of Mr. Butler, I cannot accept his
testimony that the light was amber throughout almost all of the passage of the
Guolo vehicle through the intersection. In this regard, I note that Mr. Butler
was not aware of whether the light at the intersection of Davie and Burrard was
green or amber and was not aware of when the light at Davie and Hornby turned
from green to amber. While I find Mr. Butler to be an impressive witness,
I cannot conclude that he was aware of the light at Davie and Hornby even
though he was not aware of the light at Davie and Burrard and when the light at
Davie and Hornby turned to amber. For a witness who prides himself on
“situational awareness” it does not follow, in my opinion, that he would have
been aware of traffic light situation once but not aware two times. I have
concluded that the recollection of Mr. Butler was incorrect when he stated
that the light was amber throughout almost all of the passage Guolo vehicle
through the intersection.

[50]        
In this regard, I also take into account the discrepancies between the
testimony of Mr. Butler and the other evidence relating to where in the
intersection the collision occurred. I prefer the evidence of Mr. Guolo,
P.A.A., and Mr. Pavan over the evidence given by Mr. Butler in this
regard. I find that the collision occurred at the beginning of the “middle” lane
on Hornby Street and not as was indicated by Mr. Butler. I cannot conclude
that Mr. Pavan would have been driving his vehicle in the area described
by Mr. Butler.

[51]        
From the photographs in evidence, it is evident that the curb area on
the east side of Hornby Street just before Davie Street is taken up by a bicycle
lane and a right turn lane, the west curb lane beyond Davie Street is occupied
by two construction trailers and part of the right curb lane beyond Davie
Street is available for parking and a bicycle lane so that there were only two
lanes for through traffic on Hornby Street beyond Davie Street. There was no
reason for the vehicle being driven by Mr. Pavan to be in the “last lane”
as Mr. Butler testified. Beyond Davie Street in the east curb area and
occupying the “last lane” was an area for parked cars. I am not prepared to
find that this area for parked cars was completely vacant at 5:15 a.m. but had
filled up with parked cars by approximately 6:15 a.m. I conclude that Mr. Pavan
would not have been driving his vehicle in this “last lane” as the direct path
of his vehicle would have been into parked cars.

[52]        
I am also not prepared to find that Mr. Pavan would only have
changed lanes from the west curb lane on Hornby Street to the middle lane only
after he crossed Davie Street. If he had done so, it would have been necessary
for him to make a quick adjustment in order to avoid the construction trailers
that were in the west curb lane on Hornby Street. Accordingly, I find that the
vehicle Mr. Pavan was in “the middle lane” as he attempted to drive
through Davie Street. Driving in this lane is consistent with the location of
the collision as described by Messrs. Pavan and Guolo. There is nothing in
evidence which would allow me to conclude that Mr. Pavan would have chosen
those lanes rather than the lane or lanes on Hornby available for through
traffic. The location as indicated by Mr. Butler would not have allowed Mr. Pavan
to proceed through Davie Street. Even taking into account the evidence of Mr. Pavan
that he steered sharply to the right when he saw the vehicle being driven by Mr. Guolo,
the path of the Pavan vehicle as described by Mr. Butler is other than in
accordance with the evidence of Mr. Guolo, P.A.A., the uninterested
witness, and Mr. Pavan and not in accordance with the photographic
evidence available.

[53]        
While there were a number of inconsistencies in the testimony of P.A.A.,
his testimony regarding which vehicle went through a red light was not shaken
by cross‑examination. In the circumstances, I attribute his inaccurate estimates
of where the Guolo and Pavan vehicles were located when he first saw them to
the failure of a witness not directly involved in the collision testifying
about events that took place five years after being a witness to a collision. I
find P.A.A. to be a credible and reliable witness who had no reason to fashion
his testimony in his own best interests.

[54]        
Dealing with the question of whether both drivers entered the
intersection when the traffic control lights facing them were red, I reject the
possibility that the 1.5 seconds when this was the case is other than in
accordance with the evidence of all witnesses.

DECISION

[55]        
I find that Mr. Guolo failed to meet the common law duty he owed Mr. Pavan
to take care and that, as a result of that, he must be found liable for the
damages which occurred to Mr. Pavan and the other Plaintiffs as a result
of the collision on September 22, 2010. Mr. Guolo was in a position to
stop his vehicle before entering the marked crosswalk. There is nothing before
me which would allow me to conclude that he was not in a position as to stop
safely. In this regard, Mr. Guolo was asked at Trial whether he checked
his rear view mirror to see if there were any vehicles behind him and he
stated: “No, I didn’t see anybody”. He was then asked the following
question and gave the following answer:

Q.        I put it to you, sir, that the reason you
didn’t stop at the yellow light at Hornby was not because of any particular
safety concerns, but because you thought you had sufficient time to get through
the intersection on the yellow?:

A.         Yes.

[56]        
Mr. Guolo was obligated to stop his vehicle when he saw the light
turn from green to amber if he could safely do so. Rather, he chose to increase
the speed of his vehicle. By doing so, Mr. Guolo failed to meet the common
law duty owed on him. In the circumstances, he should have stopped safely instead
of speeding up.

[57]        
I have concluded that Mr. Pavan owed no duty of care to Mr. Guolo
other than to take all reasonable steps to avoid a collision. Mr. Pavan
was entitled to proceed through the green light as he did and owed no duty to Mr. Guolo
and his passengers when the vehicle being driven by Mr. Guolo entered the
intersection in disobeyance of the duty of care imposed on him. By slamming on
his brakes and turning hard to the right in an attempt to avoid the collision, Mr. Pavan
fulfilled any obligation that he had by taking all reasonable steps to avoid
the collision.

[58]        
As a result of my finding in Action M123759, all Plaintiffs are entitled
to judgment.

[59]        
The parties will be in a position to speak to the question of Costs.

“Burnyeat J.”