IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101203

Docket: M095170

Registry:
Vancouver

Between:

Kelly Smeltzer

Plaintiff

And

Krystal Merrison,
Jim Pattison Industries Ltd.
doing business as Jim Pattison Lease and
Craftsman Collision (1981) Ltd.

Defendants

Before:
The Honourable Mr. Justice Stewart

Oral Reasons for Judgment

[1]            
THE COURT: (Oral) This case arises out of a motor vehicle
accident which occurred on November 16, 2007 on 222 Street in Maple Ridge.  It
was about 1:45 p.m.  The weather was clear.  The plaintiff was proceeding
southbound on 222nd, just south of Dewdney Trunk Road.  She made a left turn,
intent on entering the “Ground-Level Parking” entrance to the Gordon Tower. 
Her vehicle was struck by a northbound vehicle driven by the defendant, Krystal
Merrison, as she then was.  The plaintiff’s vehicle was a van, a Mazda MPV. 
The defendant’s vehicle was a Toyota Corolla.  222nd has one marked lane in
each direction until northbound traffic reaches a point just before Dewdney
Trunk Road.  There, a solid white line extends 95 feet south, dividing traffic
into lanes for right turning vehicles and vehicles going straight through or
turning left.  Exhibit 3 is a diagram, and Exhibit 1 photos.  They lay out all
of this.

[2]            
The plaintiff alleges that she was injured in the motor vehicle accident
and that but for negligence on the part of the defendant she would not have
been injured.  The defendant alleges that the plaintiff was negligent and that
but for her negligence the motor vehicle accident would not have occurred.  I
note that the submissions of counsel ended earlier today.

[3]            
By an order date stamped July 9, 2010, a judge of this court ordered the action in the case at bar “joined for the purposes of trial regarding
the issue of liability only” with action number M118804.  When I asked about
action M118804 at the outset of this trial, counsel simply told me that I could
ignore it as it was not proceeding.

[4]            
My task in preparing reasons for judgment at the end of a trial has been
settled by the Supreme Court of Canada in a series of cases that encompasses R.
v. Sheppard, [2002] 1 S.C.R. 869; R. v. Dinardo, 2008 SCC 24; R. v. R.E.M., 2008 SCC 51; and R. v. H.S.B., 2008 SCC 52.  In brief, I am
not to produce a form of transcript of the evidence.  That is what the taping
system is for (R. v. Yang, 2004 BCCA 235; R. v. McDonald, 2007
BCCA 224, paragraph 7).  Nor am I to articulate the “machinations of my mind”: 
R. v. Jordan, 2004 BCCA 70.  Instead, I must give reasons for judgment responsive
to the live issue or issues and, having regard to the particular circumstances
of the case, reasonably intelligible to the parties and productive of a basis
for a meaningful appellate review of the correctness of my decision by an
appellate court armed with the combined effect of what I say in these
reasons for judgment and the record of the trial.

[5]            
In R. v. R.E.M., supra, and R. v. H.S.B., supra,
the Supreme Court of Canada reversed two decisions of our Court of Appeal.  In
doing so, the Supreme Court of Canada chose to lay to rest a number of
misconceptions about the irreducible content of the duty of a judge in giving
reasons after a trial.  Both cases bear repeated reading, but the most
comprehensive statement by the court appears in R. v. R.E.M., supra,
at paragraphs 15-57.  I am bound by the whole of it and have crafted my reasons
for judgment in the case at bar in light of what the Supreme Court of Canada
has said.

[6]            
For present purposes, I choose to note only the following.  The Supreme
Court of Canada has stated once and for all that the need for a judge to state what
he decided and why does not mean the judge must articulate how
he made the decision.  The “what” is the verdict and the “why” is the basis for
the verdict.  The judge is not required to set out every step, finding, or
conclusion taken, made, or arrived at by him in the process of arriving at the
verdict.  Stating the “what” and giving the “why” against the background of
the record is a matter of connecting the evidence and the law on one hand
with the verdict on the other.  Crucially, considering the problematic state of
the law in this province prior to October 2, 2008, and the handing down by the Supreme Court of Canada of its decisions in R. v. R.E.M., supra,
and R. v. H.S.B., supra, decisions by the trial court judge as to
the testimonial reliability of various witnesses need not be “justified”.

[7]            
Counsel’s submissions focused to such an extent on whether the plaintiff
or the defendant or both were in violation of a provision contained in the Motor
Vehicle Act that I make it clear that I am alive to the fact that the
breaching of a statutory duty is not proof of negligence and that the statutory
duties imposed on these drivers – and any breaching of them – can be
taken into account in setting the standard of care or as evidence of
negligence, nothing more: The Queen (Can.) v. Saskatchewan Wheat Pool,
[1983] 1 S.C.R. 205; and Jordison v. Graham, 1999 BCCA 245 at paragraph
14.

[8]            
I make it clear that I have not lost sight of the Motor Vehicle Act
sections brought to my attention by counsel.  But because – as will become
clear – I am dealing with a de facto lane of travel and not a “laned
roadway” within the meaning of the Act, it is only some of the sections that
are of interest.

[9]            
Having considered the whole of the evidence together and decided nothing
as to the testimonial reliability of the various witnesses, the bottom facts or
the ultimate outcome of the case until after the whole of the evidence had been
considered together, I offer the following by way of explication and state that
I find as follows:

(a)      I find that the
independent witness Are Tang was stopped in his black truck at the point he
marked X on Exhibit 3.

(b)      I find as a fact that
his truck was the first vehicle in the northbound lane of vehicles that had
stopped so that the plaintiff could make a left turn into the parking lot.  I
make that finding because he does not remember if he was first or second in the
line, but the plaintiff focused on a black truck that was first in line, got
the licence number of that truck after the motor vehicle accident, and the fact
is that it is Are Tang who appears as a witness and says he was in a black
truck that was first or second in line.  Note that I have ignored the plaintiff’s
hearsay evidence to the effect that someone told her an Are Tang was associated
with the licence number she had written down.  I also found the plaintiff’s
evidence of the description of the man she saw and what she said when she saw
Are Tang on the screen as a video was played was of little weight.  It amounts
to the equivalent of a vague description and a single photo being used as a
method of identification.

(c)      I find as a fact that
this is a case in which the configuration of 222nd Street demanded that at some
point south of the south end of the solid white line extending back on 222nd
from Dewdney Trunk Road, 222 Street must become a de facto two-lane road
for northbound traffic: MacLaren v. Kucharek, 2010 BCCA 206 at paragraph
20.

(d)      I find as a fact that
considering what confronted a reasonable driver proceeding northbound on 222nd
as she approached Dewdney Trunk Road, the point at which she would begin to
treat 222nd as a two-lane road for northbound traffic was at a point several
car lengths to the south of where the two vehicles in the case at bar collided.

(e)      I find that at the
time of the collision the defendant was in the de facto right lane proceeding
north because she was intent on turning right at Dewdney Trunk Road and the
point where any such driver had to decide to move to the right was, as I say,
several car lengths to the south of the point of collision.

(f)       That the point I have
indicated where 222nd became a de facto two-lane road for northbound
traffic was either just at the point where the roadway begins to widen or just
south of that point is of no moment, for before it widened the roadway for
northbound traffic was 25 feet 9 inches wide.  That provided plenty of room for
parked vehicles on the east side of 222nd and two vehicles travelling side by
side northbound on 222nd.

(g)      I find as a fact that
in the case at bar neither the plaintiff or the defendant saw the other vehicle
because of the vehicles that had stopped northbound and to the left of where
the defendant travelled as she moved into the de facto second lane and
proceeded north.  Those vehicles had stopped, thus creating a gap through which
the plaintiff could make her left turn.

(h)      I find as a fact that
the plaintiff executed her left turn in a way that a reasonably prudent driver
would make a left turn, save and except the reasonably prudent driver would
realize that what was to her immediate left in the northbound area of 222nd –
a marked division of 222nd into two lanes each for traffic heading in different
directions – combined with the width of the northbound portion of 222nd
she was attempting to cross, signalled a need for caution lest northbound
vehicles moving to the right preparatory to reaching the intersection – as
I say they would necessarily and reasonably do if they intended to turn right –
meant that the movement could not be made safely by a left turning vehicle such
as the plaintiff’s which had crossed the bow of one line of northbound
vehicles, that is to say the vehicles that were stopped, without the left turning
vehicle stopping – having crossed the first line of stopped vehicles –
and verifying that it was safe to proceed.  The short point is that two different
things occurred.  The plaintiff did not obey s. 166 of the Motor
Vehicle Act and she was, for the purposes of the civil law, negligent.

(i)       At the risk of
repetition, I state that I find as a fact that the plaintiff did not take the
care that a reasonable and prudent driver would take before moving beyond the
vehicles that had stopped for her to make her left turn.

(j)       I find that the
defendant, on whom the onus lies, has established negligence on the part of the
plaintiff and that but for that negligence the collision would not have
occurred.

(k)      Has the plaintiff, on
whom the onus lies, established negligence on the part of the defendant?

(l)       Within the meaning of
the law, the defendant was the dominant driver.

(m)     Has the plaintiff, on
whom the onus lies, established that the defendant – who had the right of
way – should have become aware of the plaintiff’s failure to take
reasonable care and, if so, that she would have had sufficient opportunity to
avoid the accident: Brewster v. Swain, 2007 BCCA 347 at paragraph 9.

(n)      Here, the plaintiff
points to Motor Vehicle Act, s. 158 and to the defendant’s
proceeding past cars stopped to her left without verifying that the movement
could be made safely.  Section 158’s and Kerslake v. Kim’s relevance is not
direct but by analogy (Kerslake v. Kim is found at 2008 BCCA 220.)

(o)      There is no doubt that
the defendant did proceed to pass the cars stopped to her left without taking
reasonable steps to assure herself that the gap she ought reasonably to have
seen to her left was not present because a car was turning left.

(p)      But that does not
convert to a conclusion that:

(i)       she
should have become aware that the driver of a left turning vehicle was in fact
failing to give way to northbound traffic in the de facto lane; and

(ii)      had sufficient
opportunity to avoid the accident.

(q)      I find as a fact that,
absent assuming that someone was failing to yield the right of way and slowing
to a crawl or stopping before reaching the front right of Are Tang’s vehicle,
the defendant could not have avoided the collision.  And the law imposes no
such duty upon a driver in the defendant’s position.

(r)       The plaintiff has not
established relevant negligence on the part of the defendant.

(s)      I note that the fact I
began with the plaintiff is neither here nor there.  The result of my findings
of fact and mixed law and fact is that the plaintiff has not made out her case
against the defendant.

(t)       The action is
dismissed.

[10]        
All right.  On the face of it, it should simply be costs follow the
event.  Is there anything to be said about costs?

[SUBMISSIONS RE
COSTS]

[11]        
THE COURT:  Ruling.  This is a case in which the plaintiff’s action has
been dismissed.  On the face of it, the order should simply be costs in favour
of the defendant, Appendix B, Scale B as in Bob.  Counsel for the defendants
has applied for an order that double costs be payable from October 4, 2010
onward because of an offer of settlement of $10,000 that was made.  Counsel for
the plaintiff opposes the application.  She does so on two bases.  First, she
says that in light of the injuries suffered by the plaintiff and with respect
to which she ended up having surgery, $10,000 was not a reasonable offer.  I
cannot rule on that because I do not know enough, or anything really, about the
nature and extent of her injuries.

[12]        
The other wing to the plaintiff’s submission relates to what Rule
9-1(6)(c) refers to as the relative financial circumstances of the parties.  On
the basis of what plaintiff’s counsel has told me, I would say that the
plaintiff’s circumstances are modest.  On the other side is not the actual
defendants but ICBC.  I am allowed to take that into consideration.  Needless
to say, ICBC is a large, wealthy corporation.  The disparity in the relative
financial circumstances of the parties results in my exercising a discretion, as
I do have a discretion to exercise, against awarding double costs.

[13]        
So the order will simply be costs to the defendants, Appendix B, Scale B
as in Bob.

[14]        
I end by noting that before I gave reasons for judgment on December 3, I
said that I reserved the right to change, alter, add to, or delete from what I
said then once I was given a draft transcript.  But the result would remain the
same.

“Stewart J.”