IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120808

Docket: M095112

Registry:
Vancouver

Between:

Amy Elizabeth
Eissfeldt, an infant, by her Litigation Guardian,

Theodore Eissfeldt

Plaintiff

And

Elaine Evelyn
Eissfeldt, Mark Delare Lewis,

Jebel Ali
Enterprises Ltd., Donald Trevor Brown

and Vital Aviation
Ltd.

Defendants

Before:
The Honourable Mr. Justice McEwan

Reasons for Judgment

I

[1]          
The defendants Donald Trevor Brown and Vital Aviation Ltd. seek
dismissal of this action against them and costs.

II

[2]          
On July 3, 2005, Mr. Brown was the operator of a 2002 Chevrolet
Silverado pick-up truck that was owned by Vital Aviation Ltd., a company he and
his wife operate. The vehicle was the first one stopped in a designated
left-turn lane at the intersection of Dogwood Street and Island Highway in
Campbell River, British Columbia. The intersection is controlled by a signal
light. Mr. Brown was waiting for an advance green arrow which would permit his
intended left turn onto Island Highway.

[3]          
While Mr. Brown was in that position awaiting the signal change, a
collision occurred within the intersection which pushed a small red vehicle
driven by the defendant, Elaine Eissfeldt, out of its own lane of travel. It
struck the right front bumper of Mr. Brown’s truck and came to rest some distance
away, off to the right side of his vehicle and somewhat behind it.

[4]          
Responsibility for the collision in the intersection obviously rests
primarily with the operators of the vehicles involved. The collision with Mr.
Brown’s vehicle occurred largely because his vehicle happened to be where it
was when Ms. Eissfeldt’s vehicle spun out of control and crossed into his
turning lane.

[5]          
The plaintiff submits that in placing his vehicle where he did, Mr.
Brown was in breach of s. 186 of the Motor Vehicle Act, RSBC 1996 c. 318.
It provides:

Stopping at
intersections

186  Except when a peace officer directs
otherwise, if there is a stop sign at an intersection, a driver of a vehicle
must stop

(a) at the marked stop line, if any,

(b) before entering the marked crosswalk on the near
side of the intersection, or

(c) when there is neither a
marked crosswalk nor a stop line, before entering the intersection, at the
point nearest the intersecting highway from which the driver has a view of
approaching traffic on the intersecting highway.

[6]          
It is agreed that photographs taken immediately after the collision
accurately depict the position of the Brown vehicle at that time. Mr. Brown
says he did not move the truck after the collision. He and his passengers all
described the impact as slight with minimal damage amounting to a scuff and a
small dent on the bumper. In Discovery Mr. Brown was asked whether the vehicle
moved at impact:

Q         When you came up to the stoplight you
obviously applied the brake. This was a standard vehicle or automatic?

A          Automatic.

Q         Your foot was pressed on the brake the whole
time?

A          Yes.

Q         Obviously the vehicle would have moved a
little bit because there was some impact. Do you recall how much your vehicle
moved?

A          I would say none at all.

Q         But
it wouldn’t have moved forward after impact.

 You would have kept your foot on the brake
the whole time?

A          Yes. If anything
backwards, but no. The impact was very slight.

[7]          
The significance of this evidence, from the plaintiff’s point of view,
is that the photographs show the Brown vehicle at rest on rather than behind
the painted stop line on the pavement. In this position Mr. Brown’s truck was
fully clear of, that is, behind, the north-south crosswalk, which was also a
feature of the intersection. Mr. Brown had the following to say on Discovery:

Q         Tell me why you came to stop on that while
line?

A          Right on the white line?

Q         Yes.

A          Well, my visibility over the hood of the vehicle
is somewhat limited. I thought I was about a foot short of the while line, but
I guess I was a little further than that.

Q         You understand that the while line is a line
that indicates where you are suppose to stop behind?

A          Yes, I understand that.

Q         You intended to stop behind it?

A          Yes.

Q         Or at it?

A          At it, yes.

Q         You will agree with me that the pictures
indicate that you are actually on the white line?

A          I will agree with you.

Q         The nose of your vehicle actually extends
beyond the white line?

A          Yes.

III

[8]          
The plaintiff’s allegation is that Mr. Brown’s admission and the
photographs establish a statutory breach which defines his duty of care in the
circumstances. The plaintiff cites Cook v. Teh, 68 D.L.R. (94^th)
602; 45 B.L.L.R. (2D) 194, and Wang-Lai v. Ong, 2011 BCSC 1260, as
authority for these propositions. In Cook v Teh, Wallace J.A. described
the interrelationships of statutory and common law rules of the road:

Sections 181(1), (2) and (3) do not constitute "an
exclusive code" relating to the right of way between pedestrians and
vehicles. As noted by Mr. Justice Anderson, they must be construed in the light
of the duties imposed by s. 183(a) and the common law duty of care owed by
pedestrians and drivers to exercise due care for their own safety and the
safety of others. Because of these concurrent duties the statutory right of way
cannot be considered "absolute".

The statutory obligation and privileges delineated by the
provisions of the Motor Vehicle Act do not entitle an individual to disregard
any apparent danger which confronts him or her but it does require that the
respective duties and obligations of the parties be analyzed on a different
basis than would be the case had there been no such statutory provision.
Conceding that there are common law duties existent in addition to the
statutory obligations imposed upon the respective parties, the question which
remains to be answered is: in light of the provisions of the Motor Vehicle Act
and the common law duties of driver and pedestrian what is the appropriate
approach to assessing the responsibility of the respective parties where the
pedestrian has been found to be in breach of s. 181(2) of the Motor Vehicle
Act?

 The trial judge was required to analyze the evidence to
ascertain — in view of the plaintiff’s breach of s. 1.81(2) and the driver’s
breach of s. 181(3) and in the light of the duties imposed upon the parties by
s. 183(a) as well as the common law — to what degree did the conduct of each
of the parties contribute to the accident?

 A driver or pedestrian is not obliged to anticipate a
breach of the law by other users of the highway nor are they obliged to take
anticipatory precautions against the possible happening of an unlawful act by
other adults. However, this does not suggest any person can proceed without
the exercise of due care, even one who has the right of way. The limitation on
the assumption that others will observe the provisions of the Motor Vehicle Act
regulating traffic continues only until such time as the person, be he driver
or pedestrian, becomes aware, or ought to have become aware, that the other
party is not going to obey the law whereupon that person’s obligation to avoid
an accident supersedes his right to rely upon the assumption that others will
comply with the traffic regulations.

 In a somewhat similar analysis Cartwright, J. stated (at p.
613) in Johnston National Storage Ltd. v. Mathieson, supra:

It was accurately stated in the
following words by Aylesworth J.A. in Woodward v. Harris, [1951] O.W.N. 221 at p. 223 (revd (new trial ordered) [1952] D.L.R. 82: "Authority is not required in
support of the principle that a driver entering an intersection, even though he
has the right of way, is bound to act so as to avoid a collision if reasonable
care on his part will prevent it. To put it another way: he ought not to
exercise his right of way if the circumstances are such that the result of his
so doing will be a collision which he reasonably should have foreseen and
avoided."

 This approach, which refrains
from eroding the obligation imposed by ss. 181(1), (2) and (3) of the statute,
still recognizes the statutory obligation imposed by s. 183(a) of the Motor
Vehicle Act and the overall common-law duty on the parties to take all
reasonable steps to avoid an accident at a time when either of them should
properly appreciate their failure to act with reasonable care may jeopardize
the safety of the other.

[Emphasis
added]

[9]          
In Wong-Lai, Sewell J. said:

[21] These provisions do not
amount to an exclusive code relating to the rights of way between pedestrians
and vehicles. Rather, they supplement the common law duty of all highway users
to exercise what constitutes, in all of the circumstances, due care: Cook v.
Teh, [1990] B.C.J. No. 776 (B.C.C.A.). As Anderson J.A. stated
in Cook, quoting from the judgment of Estey J. in British Columbia
Electric Company v. Ernest Farrer, [1955] S.C.R. 757:

Legislative bodies have, for many
years, been enacting provisions intended to facilitate and make safer the
movement of pedestrians and vehicular traffic on the highways and public
streets. The general rule is that these provisions and regulations are supplementary,
or in addition, to the common law duty that rests upon all persons using the
highways to exercise due care. Swartz Bros. Ltd. v. Wills, [1935] S.C.R. 628, Royal Trust Co. v. Toronto
Transportation Commssn., [1935] S.C.R. 671. In the latter case Mr. Justice Davis,
with whom the majority of the court agreed, stated at p. 674:

Generally speaking, a motorman on
a street car is entitled to assume that a pedestrian or a motorist approaching
the street car tracks will stop to permit the street car to pass by and there
was in this case a statutory right of way in favour of the street car. But the
existence of a right of way does not entitle the motorman on the street to
disregard an apparent danger that confronts him.

[22] When an accident occurs on a
highway, the starting point for analysis is a determination of who had the
right of way. Generally speaking, the party with the right of way is entitled
to assume that other highway users will obey the rules of the road: Enright
v. Marwick, 2004 BCCA 259 at para. 22. In particular, drivers are
ordinarily entitled to expect that adult pedestrians will not jump out directly
in front of them as they are proceeding lawfully along their way: Enright,
supra at para. 35; Ibaraki v. Bamford, [1996] B.C.J. No. 724 at para. 12-13.

[23] Regardless of who has the right
of way, however, there is a duty upon drivers and pedestrians alike to keep a
proper lookout and take reasonable precautions in response to apparent
potential hazards: Nelson (Guardian ad litem of) v. Shinske (1991), 62 B.C.L.R. (2d) 302 (B.C.S.C.); Karran v.
Anderson, 2009 BCSC 1105.

[Emphasis added]

[10]       
The plaintiff’s position is that expert evidence may eventually show
that the difference between stopping where Mr. Brown did and stopping with his
vehicle wholly short of the stop line may have been the difference between his
vehicle being involved in the collision, and potentially contributing to the
plaintiff’s injuries, or not being involved at all. The plaintiff further submits
that the issue of Mr. Brown’s degree of fault in the collision cannot be
determined at this stage of the proceeding, and that Mr. Brown’s application is
premature.

[11]       
The plaintiff further submits that to allow the application would be to
permit litigating in slices and to risk making findings of fact that may prove
embarrassing when the whole case is heard. The plaintiff cites Bacchus
Agents (1981) Ltd. v. Philippe Dandurand Wines Limited, [2002]
BCJ No. 377 (C.A.). In that case the Court per Southin J.A., after citing the
rule, which I also quote, made a pertinent observation:

5 By Rule 18A:

 18A (1) A
party may apply to the court for judgment, either on an issue or generally, in
any of the following:

(a) an action
in which a defence has been filed, …

* * *

(8) On or
before the hearing of an application under this rule, the court may

(a) adjourn
the application, or

(b) dismiss
the application on the ground that

(i)the issues
raised by the notice of motion are not suitable for disposition under this
rule, or

(ii)the
application will not assist the efficient resolution of the proceeding.

* * *

(11) On the
hearing of the application, the court may

(a) grant
judgment in favour of any party, either on an issue or generally, unless

(i) the
court is unable, on the whole of the evidence before the court on the
application, to find the facts necessary to decide the issues of fact or law,
or

(ii) the
court is of the opinion that it would be unjust to decide the issues on the
application, …

6
This is a useful rule intended to shorten litigation, thereby lessening its
cost to the parties and to the public treasury and reducing delays in the
process, it being an axiom, at least since Bacon’s time, that justice delayed
is justice denied.

7 When,
however, as in this case, the rule is invoked to try "an issue"
rather than the whole case – what I have often characterized as
"litigating in slices" – it may become a hindrance to the "just,
speedy and inexpensive determination" of the dispute "on its
merits".

[12]       
The plaintiff lastly submits that this court can make a positive finding
of fact that Mr. Brown was in breach of the standard of care by failing to stop
behind the white line, but that any further determination should await the
trial.

IV

[13]       
Mr. Brown submits that Rule 9-7(15), the new name for the old rule 18A,
reproduced in Bacchus, permits the court to grant judgment in favour of
any party either on an issue or generally. He submits that the onus rests on
the plaintiff to prove the allegations she has made. In Crnkovic v.
Stockdill [1998] B.C.J. No. 3187 (S.C.) at para. 67, Cohen J.,
observed:

67
The onus is on the plaintiff to prove his allegations against the
defendants, even on a summary trial pursuant to Rule 18A. See American Pyramid
Resources Inc. v. Royal Bank of Canada (1986), 2 B.C.L.R. (2d) 99 at 105 (S.C.); Muira v. Muira (1992), 66 B.C.L.R. (2d) 345 (C.A.); Steeves v. Air
Canada, [1996] B.C.J. No. 2879 (8 January 1996), Vancouver C931493
(S.C.) Zeledon v. Kelowna General Hospital et al., [1996] B.C.J. No. 2868, (4 September 1996), Kelowna 26347
(S.C.) and Hampton v. Marshall, [1996] B.C.J. No. 1948, (11 September 1996), Vancouver
B923834 (B.C.S.C.).

[14]       
In Shannahan v. Fraser Health Authority, 2010 BCSC 144 (S.C.) at
para. 4, N. Smith J., observed.

4
A summary trial application pursuant to Rule 18A, such as this one, is a
form of trial. The plaintiff has the burden of proving his or her case, even
when the application is brought by a defendant seeking dismissal of an action.

[15]       
While I accept these statements of law, I note that there are
circumstances where the proof in the possession of the plaintiff is not fully
developed and where it would be unfair to decide an issue at an early stage.

[16]       
Mr. Brown acknowledges that as a user of the highway he owed the
plaintiff a duty of care. A breach of the standard of care occurs when a person
creates an objectively unreasonable risk of harm, falling below the conduct
that would be expected of an ordinary reasonable and prudent person in the same
circumstances. The test was set out in Ryan v. Victoria (City), [1999]
1 S.C.R. 201, per Major J. at para. 27:

28 Conduct is negligent
if it creates an objectively unreasonable risk of harm. To avoid liability, a
person must exercise the standard of care that would be expected of an
ordinary, reasonable and prudent person in the same circumstances. The measure
of what is reasonable depends on the facts of each case, including the
likelihood of a known or foreseeable harm, the gravity of that harm, and the
burden or cost which would be incurred to prevent the injury. In addition, one
may look to external indicators of reasonable conduct, such as custom, industry
practice, and statutory or regulatory standards.

29
Legislative standards are relevant to the common law standard of care, but
the two are not necessarily co-extensive. The fact that a statute prescribes or
prohibits certain activities may constitute evidence of reasonable conduct in a
given situation, but it does not extinguish the underlying obligation of
reasonableness. See R. in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205. Thus, a statutory breach does not
automatically give rise to civil liability; it is merely some evidence of
negligence. See, e.g., Stewart v. Pettie, [1995] 1 S.C.R. 131, at para. 36, and Saskatchewan Wheat
Pool, at p. 225. By the same token, mere compliance with a statute does not, in
and of itself, preclude a finding of civil liability. See Linden, supra, at p.
219. Statutory standards can, however, be highly relevant to the assessment of
reasonable conduct in a particular case, and in fact may render reasonable an
act or omission which would otherwise appear to be negligent. This allows
courts to consider the legislative framework in which people and companies must
operate, while at the same time recognizing that one cannot avoid the
underlying obligation of reasonable care simply by discharging statutory
duties.

[17]       
Mr. Brown submits that, in any event, s. 186 is not the applicable
section, but that s. 129(1) is:

129(1)  Subject to subsection
(2), 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 subject to the provisions of subsection (3),
must not cause the vehicle to proceed until a traffic control signal instructs
the driver that he or she is permitted to do so.

[18]       
I think this is correct. Section 186 applies to intersections controlled
by stop signs, not traffic control signals. The duty outlined in s. 129
is to stop before the marked crosswalk. There is no question that Mr. Brown did
so, as can be seen in the photographs. There is no suggestion in the Act,
and none of the case law supports the notion that where stop lines are painted in
the left turn lane ahead of a crosswalk, there is a duty to stop before rather
than on them, as long as the vehicle does not enter the marked
crosswalk. In this regard Mr. Brown’s acknowledgment that he intended to stop
before the line may mark a slight deviation from the standard he meant to
achieve, but it is not evidence that obliges the court to impose a higher
standard on Mr. Brown than that set out in the section. It is not at all clear
that the stop lines are anything more than guides to ensure that vehicles do
not encroach the crosswalk and the intersection, which are the duties imposed
by the section.

[19]       
As the cases show, statutory duties have been superimposed on the common
law duty of care and may create a modified standard in the circumstances to
which they pertain. The context remains important, however. The concern of a
motor vehicle operator at an intersection controlled by a traffic signal is for
pedestrians and traffic lawfully crossing or turning in the intersection. The
assessment of risk begins with the premise that one may rely on other drivers
to obey the rules of the road, subject to the qualifications set out in the
cases. (See paras. 8 and 9 herein).

[20]       
The occurrence of a random event precipitated by the failure of others
to obey the rules of the road (I do not know which of the other defendants this
may be or to what degree they may share liability), is not the sort of harm
that could be described as foreseeable by Mr. Brown. In the circumstances it is
obvious that he was in no position to react as the collision transpired.

V

[21]       
There is simply no basis, in my view, for a finding that Mr. Brown
failed in his statutory duty, which was to avoid the crosswalk and the
intersection at the red light. That duty did not extend to anticipating the
possibility that a vehicle might suddenly lose control as a result of a
collision and veer into his path, obliging him to guess where to place his
vehicle in order to avoid such a contingency.

[22]       
Giving full consideration to the fact that the court must be very
careful not to permit litigating in slices and the risk of embarrassing
consequences as a result of ruling on an incomplete view of the case, I consider
this to be an example of a circumstance where it is appropriate to apply Rule
9-7(15). Mr. Brown was not in breach of the relevant statutory duty found in s.
129. Section 186 of the Motor Vehicle Act does not apply. Whether or not
the impact with his vehicle contributed in any respect to the plaintiff’s
claims, Mr. Brown’s vehicle was not where it was as a result of any negligence
on his part.

[23]       
The application is therefore allowed and the action as against Mr. Brown
and Vital Aviation Ltd. is dismissed with costs.

 “T.M.
McEwan”

 _________________________________

 The
Honourable Mr. Justice McEwan