IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140109

Docket: M116756

Registry:
Vancouver

Between:

Naresh Kumar

Plaintiff

And

Isabella Bahareh
Taba, Kay-Wan Kevin Aminzadeh
and BMW Canada Inc.

Defendants

– and –

Docket: M122385

Registry:
Vancouver

Between:

Isabella Bahareh
Taba

Plaintiff

And

North Shore Taxi
(1966) Ltd. and Naresh

Defendants

Before:
The Honourable Madam Justice Fenlon

Oral Reasons for Judgment

[1]            
THE COURT: On July 27, 2011, Naresh Kumar was driving his taxi
southbound on Capilano Road towards the intersection with the Highway 1 west
on-ramp. At the same time, Isabella Taba was driving her car northbound on Capilano
Road. Just as she moved through the intersection, Mr. Kumar made a left
turn and the two vehicles collided.

[2]            
This collision led
to two actions, both of which are before me. In one, Vancouver Registry
M116756, Mr. Kumar is the plaintiff. He sues Ms. Taba as well as her
husband, Kevin Aminzadeh, who is the leaseholder of the car Ms. Taba was
driving, and BMW Canada Inc., the owner of that car.

[3]            
In the second
action, Ms. Taba is the plaintiff. She sues Mr. Kumar and North Shore
Taxi (1966) Ltd., which owns the taxi Mr. Kumar was driving.

[4]            
By order of this
court, the two actions were tried together on the issue of liability only.

[5]            
The sole question
before me is, therefore, whether Ms. Taba or Mr. Kumar or both caused
the accident due to their negligence.

[6]            
The intersection
in question is a T-shaped intersection. The horizontal bar of the T is Capilano
Road in North Vancouver, which runs north-south. The vertical bar of the T is
the Highway 1 on- and off-ramp.

[7]            
Southbound drivers
on Capilano Road wishing to turn left onto the Highway 1 ramp do so from a
dedicated left turn only lane.

[8]            
It is common
ground between the parties that when the lights controlling the off-ramp turn
red, two scenarios are possible. In the first, some of the lights controlling
southbound traffic on Capilano Road display a flashing green light, sometimes
referred to as an advanced green. That signal occurs only if a vehicle
activates the inroad sensors by entering the left turn lane at least 10 seconds
before the Highway 1 light turns red. When the advanced left turn flashing
green light is displayed for southbound traffic, the traffic signals for
northbound traffic on Capilano Road are red. The flashing green turns to amber
and then solid green at the same time the northbound lights also turn solid
green.

[9]            
The second
scenario occurs when the left turn signal sensor is not activated, that is,
there is no car in the left turn lane or vehicles move into that left turn lane
less than 10 seconds before the light is to change. In this scenario, the
traffic lights move from red to solid green for both south and northbound
traffic on Capilano Road.

[10]        
Ms. Taba and Mr. Kumar
gave very different versions of how the accident occurred.

[11]        
Mr. Kumar
gave evidence that he was driving his taxi southbound on Capilano Road. He
intended to turn left at the subject intersection to gain access to Highway 1
westbound and proceed to Horseshoe Bay. He approached the intersection, drove
into the left turn lane and “going slowly, slowly” followed a left turning
vehicle ahead of him and turned left on a blinking green light. As he made that
turn, he saw a vehicle stopped in the northbound lane closest to the centre
line. Mr. Kumar crossed that lane and reached the northbound lane closest
to the curb, he says, at which point the front of his vehicle collided with the
left side of Ms. Taba’s car, which was moving northbound through the
intersection across his path.

[12]        
Ms. Taba gave
evidence that as she was travelling northbound on Capilano Road, the light at
the intersection was green for traffic going in her direction. There was a car
in her lane in front of her and a black vehicle in the centre lane to her left,
all moving northbound. The black car was slightly ahead of her as well.

[13]        
According to Ms. Taba,
the three vehicles proceeded into the intersection on the green light. The two
leading vehicles then cleared the intersection, and Ms. Taba was in the
intersection when Mr. Kumar’s taxi drove into the driver’s side of her
car, deflecting her into a community bus that was waiting to move onto Capilano
Road northbound from the Highway 1 off-ramp.

[14]        
Ms. Taba
recalled seeing the taxicab in the intersection, but lost sight of it as the
black vehicle to her left moved ahead of her through the intersection. At
trial, Ms. Taba could not say whether the taxicab was moving or stationary,
nor could she say whether it was in the left lane or one of the two southbound
through lanes on Capilano Road.

[15]        
Both versions of
the accident of course cannot be correct. My task is to determine, on a balance
of probabilities, what happened that morning.

[16]        
In assessing the
evidence of the two drivers, I am mindful of Madam Justice Dillon’s description
in Bradshaw v. Stenner, 2010 BCSC 1398, at para. 186 of the factors
to be taken into account in performing that task:

Credibility involves an
assessment of the trustworthiness of a witness’ testimony based upon the
veracity or sincerity of a witness and the accuracy of the evidence that the
witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452,
50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various
factors such as the ability and opportunity to observe events, the firmness of
his memory, the ability to resist the influence of interest to modify his
recollection, whether the witness’ evidence harmonizes with independent
evidence that has been accepted, whether the witness changes his testimony
during direct and cross-examination, whether the witness’ testimony seems
unreasonable, impossible, or unlikely, whether a witness has a motive to lie,
and the demeanour of a witness generally (Wallace v. Davis, [1926] 31
O.W.N. 202 (Ont.H.C.); Farnya v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.)
[Farnya]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128
(S.C.C.)). Ultimately, the validity of the evidence depends on whether the
evidence is consistent with the probabilities affecting the case as a whole and
shown to be in existence at the time (Farnya at para. 356).

[17]        
I consider first Mr. Kumar’s
evidence. Mr. Kumar testified through a Punjabi interpreter. Even taking
into account the difficulties translation can pose, Mr. Kumar seemed more
concerned with repeating, in a rather mantra-like fashion, his description of
moving “slowly, slowly down the left turn lane when the light was a flashing
arrow” than answering the specific questions that were put to him.

[18]        
Further, Mr. Kumar
denied ever looking at the computer console in his cab, the console that
displays fares, at any time when he was driving. He insisted in
cross-examination that he only looked at the console screen when he was parked.
When pushed in cross-examination, he said it was possible in the past that
maybe he had looked at the console screen when he was at a red light.

[19]        
That evidence that
Mr. Kumar had never in the 10 months he had been a taxi driver looked at
the console screen while he was driving strikes me as improbable.

[20]        
I do not find that
Mr. Kumar was looking at the screen at the time of this accident, but I do
find that the improbability of Mr. Kumar’s evidence calls into question
the reliability of his evidence generally.

[21]        
In summary, I do
not find Mr. Kumar to be an entirely reliable witness.

[22]        
I also have
concerns about the reliability of Ms. Taba’s evidence. I hasten to say in
respect of both witnesses, Ms. Taba and Mr. Kumar, that a lack of
reliability is not synonymous with a lack of truthfulness. A witness’s evidence
may be found to be unreliable even if he or she is trying to tell the truth.

[23]        
Ms. Taba
suffered short-term memory loss immediately following the accident. The
accident itself occurred between 10:45 and 11:00 a.m. It was a serious
collision. Mr. Kumar, who was not wearing a seatbelt in accordance with
the exemption granted to taxi drivers, was unconscious for a significant period
of time. Both parties were taken to hospital by ambulance.

[24]        
Ms. Taba
described having gaps in her memory initially about how the accident happened. She
says she recovered her memory at 2:30 p.m., about three and a half hours after
the collision. I find during that three-and-a-half hour period she told
Constable Smith at the hospital that she could not remember what happened.

[25]        
At her examination
for discovery, Ms. Taba said, without equivocation, that she saw Mr. Kumar’s
yellow taxi as she approached the intersection. She said the taxi was
stationary and in the left turn lane. At trial, having visited the intersection
again, Ms. Taba said she realized that due to the dip in the road and its
curvature, it was not possible to tell from her vantage point in the northbound
curb lane whether a car was in the left lane or the through lane or whether it
was moving or stationary.

[26]        
That evidence can
only mean that at the examination for discovery, Ms. Taba had filled in
her memory of the accident and believed to be true the recollection she shared,
that is, that the taxi was stationary and visible in the left turn lane.

[27]        
As I have already
noted, both Mr. Kumar and Ms. Taba suffered significant impacts
during the accident. Both appear to have reconstructed in their own minds the
split-second details of how the accident occurred.

[28]        
A third driver at
the scene also testified. Gerald Scheske was driving a tandem axle dump truck. He
was carrying a load of gravel from an excavation and was southbound on Capilano
Road heading to the Highway 1 on-ramp. Mr. Scheske said he was coming down
the hill, ready to go into the left turning lane. He was looking ahead to the
lights to see if he would be able to make it onto the exit ramp before the
light turned orange. That, he said, was one of his main concerns. The light
controlling southbound traffic was a steady green. At no time did he see a
flashing green as he approached. He noted two to three cars coming up Capilano
northbound “kind of in a pack” spread out over 30 to 50 feet.

[29]        
Mr. Scheske
testified he entered the left turn lane. He was still watching the cars coming
up the road towards him because he would have to navigate around them to make
his left turn. Before he got to the end of the left turn lane, “out of nowhere”
he saw a taxi come from his right and go shooting across in front of him into
the intersection, where it hit the lady in the car. Mr. Scheske described
the taxi as coming into his vision “very fast from nowhere”.

[30]        
Mr. Scheske
is an independent witness with no connection to either party. He gave his
evidence in a detailed, clear manner and was not moved off that evidence at all
in cross-examination. He candidly admitted he has a criminal record for assault
on a police officer, possession of both a prohibited weapon and a restricted
weapon and possession of a controlled substance.

[31]        
Mr. Kumar’s
counsel submits that I should draw an inference from Mr. Scheske’s
criminal record that he is not a credible witness.

[32]        
A prior
conviction, especially a conviction for deceit or fraud, can adversely reflect
on a person’s honesty. In addressing s. 12 of the Canada Evidence Act,
R.S.C. 1985, c. C-5, which is the equivalent of s. 15 of the British
Columbia. Evidence Act, R.S.B.C. 1996, c. 124, Chief Justice Dickson
of the Supreme Court of Canada in R. v. Corbett, [1988] 1 S.C.R. 670, 
at para. 22 observed:

What lies behind s. 12 is a
legislative judgment that prior convictions do bear upon the credibility of a
witness… There can surely be little argument that a prior criminal record is
a fact which, to some extent at least, bears upon the credibility of a witness.
Of course, the mere fact that a witness was previously convicted of an offence
does not mean that he or she necessarily should not be believed, but it is a
fact which a jury might take into account in assessing credibility.

[33]        
I do not find Mr. Scheske’s credibility to be affected by his past
convictions. He had no interest in the outcome of this case. In all respects
his evidence had the ring of truth.

[34]        
This is not, accordingly, a case in which I must invoke s. 1(2) of
the Negligence Act, R.S.B.C. 1996, c. 333, because I cannot
determine who was at fault and in what degree. I find that the accident
happened as Mr. Scheske described it.

[35]        
The light for Ms. Taba and Mr. Kumar was solid green. Mr. Kumar
was travelling in the southbound through lane. He cut left in front of Mr. Scheske’s
dump truck, which was travelling southbound in the left turn lane, and
proceeded into the intersection. Mr. Kumar did not see Ms. Taba’s car
because her car was hidden behind the black vehicle travelling in the northbound
centre lane ahead of her. As the black vehicle cleared the intersection, Mr. Kumar
proceeded through behind it, across the northbound lanes, striking Ms. Taba’s
car on the driver’s side.

[36]        
Should any liability for the accident be apportioned to Ms. Taba? 
Section 174 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318
says:

When a vehicle is in an
intersection and its driver intends to turn left, the driver must yield the
right of way to traffic approaching from the opposite direction that is in the
intersection or so close as to constitute an immediate hazard, but having
yielded and given a signal as required by sections 171 and 172, the driver may
turn the vehicle to the left, and traffic approaching the intersection from the
opposite direction must yield the right of way to the vehicle making the left
turn.

It is thus incumbent on oncoming drivers to give way to
a left-turning vehicle in some situations.

[37]        
I find that Ms. Taba did not have an obligation to yield to Mr. Kumar’s
left-turning vehicle, nor do I find that she could have taken action to avoid
the collision. Ms. Taba did see the taxi in the intersection as she
approached. She said she was not paying attention to it as she went into the
intersection. However, since she was in a pack of three cars travelling into
the intersection on a green light, I find that she reasonably expected the taxi
to wait until all three vehicles had cleared the intersection. By the time Ms. Taba
realized that Mr. Kumar was making his left turn, she had only a split second
to react, not even long enough to engage her brakes or accelerate to try to
avoid the collision.

[38]        
In conclusion, having considered all of the evidence put before me and
the cases brought to my attention, I find that Mr. Kumar’s negligence
caused the accident and that it was his negligence alone that resulted in the
collision.

[39]        
Having made this determination, I would normally address costs. This is
a bit unusual because we have a severance of liability and quantum, and what
happens at the trial on quantum could well affect costs. So one way to deal
with this is simply to leave it for the completion of the trial, because what
we have done today is decide one issue. So I will hear from counsel on this
question.

[40]        
MR. T. MALEDY:  My Lady, if I may, as far as the action in which Ms. Taba
is the plaintiff, that is the case. As far as the action in which Mr. Kumar
is plaintiff, there will not be an assessment, I imagine, of damages and his
action should be dismissed as a result of this trial. I think that is more for
my learned friend to address as she is counsel for the defence of that action.

[41]        
THE COURT:  Yes, Ms. Tsang.

[42]        
MS. TSANG:  My Lady, as my learned friend has indicated, as counsel
for Ms. Taba and BMW as well as Ms. Taba’s husband, I am seeking an
order that Mr. Kumar’s action against the defendants be dismissed and
costs to be awarded in favour of the defendants. And that would be the action
no. M116756.

[43]        
THE COURT:  Yes. Thank you. Any reply to that?

[44]        
MR. T. MALEDY:  No. Thank you.

[45]        
THE COURT:  And as for costs in the other action, are you content to
leave that?

[46]        
MR. T. MALEDY:  It should be left until the completion of the whole
case, I believe, My Lady.

[47]        
THE COURT:  Thank you. That simplifies things.

[48]        
MR. HUGHES:  I would agree, My Lady.

[49]        
THE COURT:  Thank you. In that case I have made my ruling on liability. I
also make an order that Mr. Kumar’s action M116756 is dismissed with costs
to the defendants in that action at Scale B.

The
Honourable Madam Justice L.A. Fenlon