IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130802

Docket: M114899

Registry:
Vancouver

Between:

Marianne Jeanne
Dupre

Plaintiff

And

Teresa Jean
Patterson

Defendant

Before:
The Honourable Madam Justice Adair

Oral Reasons for
Judgment

In
Chambers

[1]            
THE
COURT: This is a fast track action that arises out of a
collision between a cyclist, the plaintiff, Ms. Dupre, and a car driven by
the defendant, Ms. Patterson.  A three-day trial is scheduled for October
2013.

[2]            
Ms. Patterson applies, by way of summary trial, for dismissal of
the action on the basis that she is not liable.  In other words,
Ms. Patterson seeks a summary trial on the discrete issue of liability.

[3]            
The court may grant judgment on a summary trial, either on an issue or
generally, unless the court is unable on the whole of the evidence to find the
facts necessary to decide the issues of fact or law, or the court is of the
opinion that it would be unjust to decide the issues on the application. 
Judgment may be granted on a summary trial application despite conflicting
affidavits or conflicting evidence, where the court is able to make the
necessary findings of fact.

[4]            
A court should be reluctant to “slice off” and decide isolated issues in
circumstances where resolution of those issues will not resolve the litigation
or will only resolve the litigation if answered in a particular way.  Where
judgment is sought on a separate issue, the determination of which will not
reduce the total amount of court time to resolve the dispute, it may be
inefficient to determine that issue, even if the court is able to do so.  If
the issue to be tried will resolve the whole proceeding if one answer is given,
but not if a different answer is given, then the applicant may be required to
demonstrate that the administration of justice, as it affects not just the
parties to the application but also the orderly use of court time, will be
enhanced by dealing with the issue as a separate issue.

[5]            
In this case, the hearing of the summary trial application (including
waiting for a referral judge) occupied a substantial portion of a court day.  Although
during the hearing I questioned the utility of having a summary trial on
liability, since the estimate for the trial of the whole action (that is, liability
and damages) was only three days, neither counsel took the position that the
liability issue should not be determined at this stage.  Ms. Dupre had
been examined for discovery, and Ms. Patterson relied on that discovery
evidence as part of the evidence in support of her summary trial application. 
Ms. Patterson had been cross-examined on her affidavit filed in support of
the summary trial application.

[6]            
As is the case in a conventional trial, the burden of proof is on the
plaintiff.

[7]            
I am satisfied that I am able to decide the issues on liability and
that it would not be unjust to do so.

[8]            
For the reasons that follow, I find that Ms. Patterson’s negligence
caused the collision, and she is therefore liable in damages to Ms. Dupre.

[9]            
The accident occurred on April 16, 2011, at about 9:00 a.m., just east
of the intersection of Walnut Street and Cornwall Avenue in Vancouver.  Both
Ms. Dupre and Ms. Patterson were travelling westbound on Cornwall. 
It was a sunny, clear day and the roads were dry.

[10]        
Ms. Dupre was one of a group of about 30 cyclists on a practice
ride in preparation for the 2011 BMO Vancouver Marathon, which was scheduled
for May 1, 2011.  It was the third or fourth training ride.  The previous rides
had been about 20 kilometres.  On the day of the accident, the practice ride
was the full marathon distance.

[11]        
Ms. Dupre was wearing a helmet with a flashing red light on the
back, and a cycling jacket.  She left home about 6:40 a.m. to meet the team at
the Plaza of Nations.  Ms. Dupre explained that, during practice rides,
the team would take breaks to wait for slower cyclists to catch up, and prior
to the accident she had taken approximately two breaks with the team.  As Ms.
Dupre recalled, prior to the accident, she was one of the last cyclists on the
team.  She did not know how far ahead the next cyclists were because she could
not see them.  The last time she cycled with anyone from the team was on Beach
Avenue.  As she recalled, there were two cyclists (or thereabouts) behind her
from the team as she cycled over the Burrard Street bridge.

[12]        
The westbound bicycle lane on Cornwall ends at Cypress Street.  To the
west of Cypress, there are two westbound lanes.  The right-hand westbound lane
is also wide enough to accommodate street parking.  There was some debate about
whether the area for street parking is a separate curb lane.  However, based on
the photographs of this section of Cornwall, there are no lane markers dividing
the area used for street parking from the right-hand travel lane.  I conclude
that there are two westbound travel lanes on Cornwall with a curbside area for
street parking.

[13]        
The basic lane and street layout is depicted in the photographs attached
as Exhibit “A” to Ms. Dupre’s affidavit.  The photographs were not taken
the day of the accident, and there is no suggestion these photographs show
either the traffic or the cars that were in fact parked on Cornwall that day.  However,
there is no disagreement that cars were in fact parked along Cornwall on the
day of the accident, in the area where the accident occurred.

[14]        
Ms. Patterson had stopped at Siegel’s Bagels, which is in a small
shopping centre on the northeast corner of Cornwall and Cypress.  After leaving
Siegel’s, Ms. Patterson turned right onto Cornwall from Cypress.

[15]        
Between Cypress and Walnut, travelling westbound, there is a laneway off
Cornwall.  Both Ms. Dupre and Ms. Patterson agree that the accident
occurred to the west of the laneway.  However, although Ms. Patterson was
sure that the accident did not occur on the stretch of Cornwall between Cypress
and the laneway, she was unsure where to the west of the laneway it did occur. 
Ms. Dupre, on the other hand, identified the accident location as to the
east of Walnut.  Ms. Dupre had been knocked off her bike as a result of
the accident, and I think it more likely that, as compared with
Ms. Patterson, Ms. Dupre would be able to identify the location where
that happened.  After the collision, some bystanders helped Ms. Dupre walk
to the curb at the northeast corner of Cornwall and Walnut.  This is also
consistent with Ms. Dupre’s evidence concerning the location of the
accident.

[16]        
I find that the accident occurred in the location identified by
Ms. Dupre, to the east of Walnut.

[17]        
Ms. Patterson says that, prior to the accident, she was travelling
westbound on Cornwall in what she describes as the lane next to some parked
cars.  Ms. Patterson refers to the area where the cars were parked as the
"curb lane," but as I noted above, since there is no lane divider, this
is not entirely accurate.  Ms. Patterson says that there was “a group of
cyclists” along Cornwall, riding single file between moving westbound traffic
and parked vehicles along the curb.  According to Ms. Patterson,
Ms. Dupre stood out among the cyclists “as she wove in and out of my lane
of traffic several times.”  I pause here.  In fact, Ms. Dupre and
Ms. Patterson were not travelling in separate traffic lanes.

[18]        
Ms. Patterson says that, initially, Ms. Dupre did not appear
to have full control of her bicycle.  Ms. Patterson describes her as “riding
erratically” and being “wobbly on her bike,” and also as riding unusually. 
Ms. Patterson said that this caused her concern.  Ms. Patterson
distinctly recalled asking herself in relation to Ms. Dupre, “Lady, what
are you doing?”  Although in submissions, defence counsel argued that
Ms. Patterson had observed Ms. Dupre doing a shoulder check, this is
not what Ms. Patterson (who is herself a cyclist) describes.

[19]        
According to Ms. Patterson, Ms. Dupre appeared to have
regained control over her bike, and it was only after Ms. Dupre began
riding in what Ms. Patterson described as a “stable manner for a while and
in full alignment with her cycling group” that Ms. Patterson says she
considered it safe to pass Ms. Dupre.  I pause here again. 
Ms. Patterson’s evidence, implying that Ms. Dupre’s cycling group was
visible ahead of her, conflicts with Ms. Dupre’s, who said that she could
not see the group ahead.

[20]        
Moreover, given the distance between Siegel’s Bagels at Cypress and
Cornwall and the location of the collision to the east of Walnut, “a while” could
only be a very brief period.  Ms. Patterson had observed Ms. Dupre as
riding in a manner that caused Ms. Patterson concern and had just posed
the question to herself, “Lady, what are you doing?”

[21]        
In that light, I am not prepared to draw the inference I am being asked
to draw from Ms. Patterson’s evidence:  that she made a considered
judgment that it was, in the circumstances she described, safe to pass
Ms. Dupre on her bike.  In my view, Ms. Patterson’s evidence is not
consistent with the probabilities of the surrounding circumstances, and I think
it unlikely that what Ms. Patterson describes in fact occurred.  Based on
Ms. Patterson’s own description of her observations of Ms. Dupre on
her bike (she uses the terms “wobbly” and “erratic,” and poses the question to
herself, “Lady, what are you doing?”) shortly before the accident,
Ms. Patterson needed to exercise caution, especially if she was planning
to overtake Ms. Dupre.  That is what the circumstances called for.

[22]        
Ms. Patterson says that, when passing Ms. Dupre, she remained in
what she described as “my lane of traffic.”  She says that she did not swerve,
veer or move to the right or left.  Based on Ms. Patterson’s evidence, not
only did she not move over slightly to the left to give herself and
Ms. Dupre an extra margin of safety, she did not move at all.  She
continued to drive in the lane that she was sharing with Ms. Dupre.  Ms. Patterson
says that when passing Ms. Dupre, “I ensured that I left lots of clearance
between the right side of my vehicle and Ms. Dupre and her bicycle.”  Ms. Patterson’s
evidence is conclusory and not helpful.  I do not know what she means by “lots
of clearance.”  What she believes is “lots of clearance” may in fact be
completely inadequate.

[23]        
Ms. Patterson says that she had already passed “at least six to
seven cyclists who were part of Ms. Dupre’s cycling group and who were
following closely behind her.”  This again is in conflict with Ms. Dupre’s
evidence concerning where she was placed among her group.  It is in conflict
with Ms. Dupre’s affidavit evidence concerning events after the
collision.  It is also in conflict with Ms. Dupre’s discovery evidence
relied on by the defendant as part of her application.  Moreover, even if
before the accident Ms. Patterson had successfully passed some cyclists,
it does not follow that she was not negligent in passing Ms. Dupre.

[24]        
In attempting to explain why she did not simply wait until it was safe
for her to move into the left-hand westbound lane and then pass Ms. Dupre,
Ms. Patterson said that that would have been dangerous to the other
cyclists, in other words, the six or seven cyclists she had just passed.  I
have concluded that Ms. Patterson does not now accurately recall what
occurred.  As I noted above, Ms. Patterson’s evidence about the number of
cyclists travelling behind Ms. Dupre and the suggestion that they were
closely bunched behind Ms. Dupre are inconsistent with Ms. Dupre’s
evidence, including the discovery evidence that Ms. Patterson relied on to
support the application for summary trial.  There probably were no other
cyclists following behind Ms. Dupre that would have made it unsafe for
Ms. Patterson to wait until she could move her vehicle to the left in
order to pass Ms. Dupre.  The fact that no witnesses came forward is more
consistent with both Ms. Dupre’s evidence that she was essentially on her
own and her evidence concerning circumstances after the accident, than with
Ms. Patterson’s evidence that a group of cyclists in the near vicinity
behind made it unsafe for Ms. Patterson to wait to pass Ms. Dupre.

[25]        
Ms. Patterson says that after she passed Ms. Dupre, she heard
a noise toward the right rear of her car.  Ms. Patterson looked in her
rear-view mirror to see what happened and was surprised to see that a cyclist (Ms. Dupre)
had fallen to the cyclist’s left.

[26]        
As Ms. Dupre recalled, just prior to the accident she was looking
forward and had not yet reached Walnut Street, when suddenly she saw the rear
of a car and felt two bumps.  According to Ms. Dupre, she was being pulled
forward by the car, which had struck her handlebars and which then caused her
to fall off her bike.

[27]        
In argument, defence counsel pointed to some handwritten notes in a
clinical record from St. Joseph’s Hospital, where Ms. Dupre went for
medical treatment after the accident.  Counsel submitted that, based on these
notes, Ms. Dupre appeared to have reported that Ms. Patterson’s car “pushed
into her,” and submitted further that this was inconsistent with
Ms. Dupre’s sworn evidence concerning the circumstances of the accident.  When
queried about how the clinical note was admissible on a summary trial
application and about what it was being tendered to prove, defence counsel
abandoned her reliance and submissions based on it.

[28]        
In any event, statements attributed to a plaintiff in medical records
are not equivalent to admissions on an examination for discovery.  They are
usually a brief summary or paraphrase, reflecting the information that the
doctor considered most pertinent to the medical advice or treatment being
sought on the day.

[29]        
According to Ms. Dupre, she fell hard to the pavement on her left
side, with her bicycle landing on top of her.  She says that she immediately
realized she had hurt her left shoulder.  Some bystanders helped her to the
curb.  She noticed pain and numbness in her left hip and that the pain in her
shoulder was becoming more intense.  By this time, members of her team who had
been riding behind her had caught up with her.  Ms. Patterson also
returned to the scene.

[30]        
X-rays taken later at the hospital confirmed that Ms. Dupre had
broken her humerus.

[31]        
I turn then to the legal principles applicable.

[32]        
The Motor Vehicle Act, R.S.B.C. 1996, c. 318,
s. 157(1) provides in relevant part:

Except as provided in section 158, the driver of a vehicle
overtaking another vehicle

(a) must cause the vehicle to pass to the left of the other
vehicle at a safe distance[.]

[33]        
Section 183 provides in relevant part:

183 (1)  In addition to the duties imposed by this section, a
person operating a cycle on a highway has the same rights and duties as a
driver of a vehicle.

(2) A person operating a cycle

(a) must not ride on a sidewalk unless authorized by a bylaw
made under section 124 or unless otherwise directed by a sign,

. . .

(c) must, subject to paragraph (a), ride as near as
practicable to the right side of the highway[.]

[34]        
The relevant legal principles with respect to accidents involving motor
vehicles and cyclists are summarized in Dobre v. Langley, 2011
BCSC 1315, at para. 31:

[31]      The basic principles in a case such as this are
obviously well known. For the parties’ benefit, I will relate them in plain
words.

·       
Each person has a duty to look out for others and to take
reasonable care that their own actions do not cause others foreseeable harm.

·       
Each person has a reciprocal duty to take reasonable steps to
look out for their own safety.

·       
The degree of care the law expects a person to exercise in a
given situation is proportionate to the risks the actors knew about or should
have known about, considering all of the relevant circumstances. The greater
the risks associated with the activities involved, the greater the degree of
care required.

·       
Where a judge finds the careless actions of more than one actor,
including the injured party, were causes of a person’s harm, the judge can
apportion responsibility between them on a percentage basis that reflects the
relative blameworthiness of the parties.

·       
Even if a judge finds a defendant wholly responsible for the
accident’s occurring, they may still reduce the plaintiff’s damages because the
plaintiff failed to exercise reasonable care for his or her own safety by
taking steps that would have avoided or reduced his or her injuries, such as
having failed to wear a seatbelt or a bicycle helmet.

·       
The Motor Vehicle Act, R.S.B.C., c. 318 [Motor Vehicle
Act], lays down specific rules of the road to regulate the use of highways
and crosswalks by motor vehicles, bicyclists and pedestrians. The provisions of
the Motor Vehicle Act reflect older common law rules, modified and
expanded to reflect the demands of modern traffic.

·       
The standard of care expected of a driver is not perfection, but
whether they acted as an ordinarily prudent person would act: Hadden v.
Lynch, 2008 BCSC 295, 165 A.C.W.S. (3d) 759 at para. 69 [Hadden].

[35]        
The standard of care expected of a driver is not perfection, but whether
the driver acted as an ordinarily prudent person would act.

[36]        
The issue on liability is whether Ms. Patterson acted as an
ordinarily prudent person when she passed Ms. Dupre.  I find that she did
not.  I have concluded it is unlikely that, in the time available,
Ms. Patterson went from noticing that Ms. Dupre was what she described
as erratic and wobbly, and Ms. Patterson saying to herself, “Lady, what
are you doing?” to being satisfied that, without moving her vehicle to the left
at all, it was safe to pass Ms. Dupre.

[37]        
Ms. Patterson did not appear to appreciate that she and Ms. Dupre
were travelling in the same part of the roadway.  Ms. Dupre was not
travelling in what Ms. Patterson called “my lane.”  They were sharing the
road.  I reject Ms. Patterson’s evidence that there were other cyclists in
the near vicinity that made it unsafe for her to wait to pass Ms. Dupre
until Ms. Patterson could move to her left.  I find further that, before
Ms. Patterson completely passed Ms. Dupre, the accident occurred.

[38]        
I am not prepared to find (as submitted by defence counsel) that
Ms. Dupre rode her bike into Ms. Patterson’s car.  The questions put
to Ms. Dupre on her examination for discovery, on which defence counsel
relies, were framed in terms of whether something was possible. 
Ms. Dupre’s answers to such questions are not useful to establish what in
fact happened.

[39]        
I find that, when she passed Ms. Dupre, Ms. Patterson did not
do so at a safe distance and that Ms. Patterson’s negligence caused the
accident to occur.  The accident did not occur as a result of Ms. Dupre
failing to ride as near as practicable to the right side of the highway.  I
reject the suggestion advanced by defence counsel in argument that
Ms. Dupre was an inexperienced cyclist and out of her depth on the
practice ride on April 16.  Such a suggestion is not supported by the evidence,
in my view.

[40]        
Defence counsel pointed to some statements made by Ms. Dupre to
Ms. Patterson after the accident, when Ms. Dupre apologized.  In view
of my conclusion that Ms. Patterson’s negligence caused the accident, I
will address this point only very briefly.

[41]        
First, it was unclear, based on the submissions, how I was being asked
to use Ms. Dupre’s statements and whether they were admissible for the
purpose for which they were being tendered.  Secondly, it is clear that an
apology made by or on behalf of a person in connection with any matter does not
constitute an express or implied admission or acknowledgment of fault or liability:
see the Apology Act, S.B.C. 2006, c. 19, s. 2.

[42]        
 Ms. Dupre explained that when she spoke to Ms. Patterson
after the accident, she was upset and in considerable pain from falling and
injuring her shoulder, and she felt embarrassed by the attention the accident
had caused.  She did not remember saying anything about having over-extended or
pushed herself too far on the bike ride.  Roadside admissions at accident
scenes are unreliable, since people tend to be shaken and disorganized.  This
describes Ms. Dupre’s situation.  Her statements do not affect my
conclusion that Ms. Patterson’s negligence caused the accident.

[43]        
In summary, then, I find the defendant, Ms. Patterson, liable.

[44]        
Before concluding, I wish to say a few words about the material filed.

[45]        
The defendant’s notice of application filed July 3, 2013, did not comply
with the Supreme Court Civil Rules.  The complete “Factual
Basis” for the summary trial was set out on about three pages, double spaced. 
The “Legal Basis” section said in its entirety:

1.         Rule 9-7

2.         Rule 14-1(12) – costs

3.         Motor Vehicle Act,
RSBC1996, c. 318, Part 3, section 183(2)(c).

[46]        
There was not even a brief statement to the effect of “The court should
dismiss the action because” and then setting out the reason or reasons why, in
the defendant’s submission, that should be the result.

[47]        
In Zecher v. Josh, 2011 BCSC 311, Master Bouck was faced
with a similar situation, where the Legal Basis section in particular of the
notice of application was wholly inadequate.  Master Bouck described what was
required in order to comply with the Rules and said:

[29]      The defendants’ application for production of wage
loss particulars and a calculation of any wage loss claim was dismissed due to
the inadequacy of the material and argument presented. Both the factual and
legal basis for the application are wanting.

[30]      Form 32 of the SCCR [Supreme Court Civil Rules]
lends itself to providing both the opposing party and the court with full
disclosure of the argument to be made in chambers. Parties should put in as
much thought to the necessary content of that Form as is done when preparing
the supporting affidavits. When a party is represented, responsibility for that
content lies with counsel.

[31]      No doubt the Lieutenant Governor-in-Council
intended Part 3 of Form 32 to contain more than a cursory listing of the Rules
that might support the particular application. For example, common law
authorities can and should be included as well as a brief legal analysis. Such
an analysis is particularly helpful given that parties are not able to present
a separate written argument in civil chambers unless the application is
scheduled to take two hours or more of court time.

[32]      In my experience and observation, a comprehensive
legal analysis can easily be included in a 10-page notice of application. As
well, Rule 8-1(4) allows the parties to include a list of authorities in the
application record.

[33]      By providing an effective analysis of the legal
basis for (or against) making the order, the parties may well be able to
resolve the application without attending court.

[34]      As an aside, I should note
that the sparse content of this particular notice of application is
unfortunately not unique; many such inadequate notices have been presented in
chambers.

[48]        
I agree with and adopt Master Bouck’s comments concerning what a notice
of application must contain.  The same will apply with respect to an
application response (Form 33), and the notice of application and application
response under the Supreme Court Family Rules (Forms F31 and F32).

[49]        
In Fraser, Horn and Griffin, The Conduct of Civil Litigation in British
Columbia, 2nd ed. loose-leaf (Markham:  LexisNexis, 2007) one of the
leading texts on practice and procedure, the authors say this concerning the
"Legal Basis" section of a notice of application, at p. 32-3 [notes
omitted]:

 The notice must set
out the rule, enactment or other jurisdictional authority relied on for the
orders sought and any other legal arguments on which the order sought should be
granted (Rule 8-1(4)(c)).  If appropriate, applicable cases may be cited.  The
argument to be made in chambers should be fully disclosed and should contain
more than a cursory listing of the rules that might support the particular
application.

[50]        
The requirements under the current Rules represent a
fundamental change from the practice under the former Rules of Court. 
Under the former Rules, Rule 44(3) and Form 55 (the form of
notice of motion) only required a bare statement of the Rule or enactment
relied upon.  An outline (see Form 125 and former Rule 51A(12)), outlining the
legal arguments to be made, was then delivered later in the exchange of motion
materials and prior to the hearing.  That is not the practice under the current
Rules.

[51]        
If a notice of application does not contain the information now required
under the Rules, the party filing it has failed to give proper
notice – to the opposing party and to the court – of the nature of the
application.  However, all too frequently, counsel in both civil and family
cases are signing and filing inadequate notices of application and application
responses.  The notice of application filed in this case was not at all
unique.  However, such documents do not comply with the Rules.

[52]        
In contrast to the bare-bones notice of application filed on behalf of
Ms. Patterson, the application response was comprehensive and, in the page
limit allowed under the Rules, set out both a detailed summary of
the facts and an analysis of the legal basis on which the plaintiff said the
court should find the defendant liable.  It represents the standard expected by
the court.

[53]        
In this case, the inadequacy of the notice of application was compounded
by defendant’s counsel tendering a 14-page written submission at the hearing. 
Since the hearing was estimated and set for 90 minutes, this was in breach of Rule 8-1(16).

[54]        
Rarely will a judge or master refuse to receive a written argument from
counsel, provided it is not being used to “sandbag” or take the opposition by
surprise.  However, tendering a written argument at the hearing is neither an
alternative to, nor a substitute for, setting out the “Legal Basis” in a notice
of application or an application response in accordance with what the Rules
and the case law require.

[55]        
When counsel come to court with inadequate materials, which fail to
comply with the Rules, judges and masters are placed in a very
difficult position.  What often happens is that, to avoid the inconvenience and
expense of an adjournment, matters proceed despite the inadequate materials,
and judges and masters do the best they can in the circumstances.  But inadequate
motion materials, which fail to comply with the Rules, are
incompatible with the efficient and timely disposition of applications.

[56]        
If counsel are coming to court with inadequate material that clearly
fails to comply with the Rules, and counting on being heard, they
are misguided.  Judges and masters are entitled to expect that counsel will
prepare application materials (including affidavits) that comply with the Rules,
and do no less than this.  Counsel who come to court with application materials
that do not comply risk having their applications at least adjourned, with
potential cost consequences, until proper materials are filed.

[57]        
That completes my ruling.

[58]        
MR. URQUHART:  My Lady, costs.  I would submit that the
plaintiff in this case is entitled to costs.

[59]        
THE COURT:  Ms. Lew?

[60]        
MS. LEW:  In light of the ruling, I don’t have any submissions with
respect to costs.

[61]        
THE COURT:  Yes.  Thank you, Ms. Lew.  The plaintiff is entitled to
costs of the summary trial.

____ Adair J.”_______________________

The
Honourable Madam Justice Adair