IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150116

Docket: 39349

Registry:
Kamloops

Between:

Randy Leigh Roy

Plaintiff

And:

Michael
Raymond Joseph McGinnis, 1071026 Ontario Inc. doing business as Infinity and
the said 1071026 Ontario Inc.

Defendants

Before: The Honourable Mr. Justice
Groves

Reasons for Judgment

In
Chambers

Introduction

[1]            
This is an application pursuant to R. 9-7 of the Supreme Court
Civil Rules initiated by a defendant in a motor vehicle action.  The issues
of liability and damages are to be determined separately pursuant to an order
filed January 4, 2013.  Both the plaintiff and defendant agree that it is
appropriate that this Court determine the issue of liability summarily.

[2]            
That being noted, the court has an obligation in any application of this
nature to first determine the appropriateness of summary adjudication.  On the
basis of the facts which I will recite below, and considering the direction
found in Inspiration Mgmt. Ltd. v. McDermid St. Lawrence Ltd. (1989), 36
B.C.L.R. (2d) 202 at 214 to 215 (C.A.), I have concluded that I can find the
necessary facts to resolve the issue of liability as between the parties and
that this is an appropriate matter to be determined summarily.

[3]            
The action results from a motor vehicle accident that occurred on
November 25, 2004, approximately ten years prior to the date this
application was heard.  This delay relates, I am advised, to the existence of
criminal law proceedings arising from the accident and concerning the defendant
Michael Raymond Joseph McGinnis (“McGinnis”).  I understand that those criminal
proceedings consisted of a Supreme Court trial, a review by the Court of Appeal,
and ultimately a final determination by the Supreme Court of Canada dismissing
the criminal charges against McGinnis.

[4]            
There is no dispute that the plaintiff Randy Leigh Roy (“Roy”) was the
driver of a motor home.  His passenger was Mark Harrington, who died as a
result of the collision.  The collision occurred at the corner of Highway 5
and Harmon Road, which is a T-intersection at which Highway 5 runs roughly
east to west and Harmon Road runs roughly northwest to southeast.  The
intersection is about 22 km north of Clearwater, B.C.

[5]            
Further, it appears not to be in dispute that immediately prior to the
accident Roy was traveling northwest on Harmon Road.  At the corner of Harmon
Road and Highway 5, a stop sign exists, which requires traffic travelling on
Harmon Road to stop before proceeding onto Highway 5.  Further, it does
not appear to be in dispute that Roy then turned left onto Highway 5, with
the intention of travelling across the eastbound lane and into the westbound
lane.  At that time, McGinnis was traveling straight on Highway 5 in the
eastbound lane, a lane in which McGinnis had the right of way.  The accident
occurred in the eastbound lane when the truck driven by McGinnis impacted Roy’s
motorhome.  Roy’s motorhome was destroyed in the accident.

The Issues

[6]            
The defendants argue that Roy is solely responsible for the accident.  They
rely on s. 175(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318,
which states:

Entering through highway

175(1)  If a vehicle that is about to enter a through highway has
stopped in compliance with section 186,

(a)  the driver of the vehicle must yield
the right of way to traffic that has entered the intersection on the through
highway or is approaching so closely on it that it constitutes an immediate hazard,
and

(b)  having yielded, the driver may
proceed with caution.

[7]            
The plaintiff argues that McGinnis is solely responsible for the
accident.  He relies on s. 144(1) of the Motor Vehicle Act, which
states:

Careless driving prohibited

144(1)  A person
must not drive a motor vehicle on a highway

(a)  without due care and attention,

(b)  without reasonable consideration for
other persons using the highway, or

(c)  at a speed that is excessive
relative to the road, traffic, visibility or weather conditions.

The Evidence

[8]            
As a result of the injuries sustained, Roy has no recollection of the
accident or the events leading to the accident.  As such, the plaintiff has no
personal evidence to give related to the mechanics of the accident.

[9]            
The defendant McGinnis has presented evidence by way of affidavit.  Additionally,
the plaintiff relies on the evidence of McGinnis given at an examination for
discovery.  The defendant’s daughter, Darlene McGinnis, was a front seat
passenger in the vehicle operated by McGinnis and provided evidence by way of a
court transcript of her sworn evidence at the criminal trial.  In addition to
these individuals, the evidence of two police officers, Constable Mark Jenkins
and Sgt. Raymond Campbell, is before the Court.  Finally, Evan Smith, a truck
driver who resides in Clearwater, has provided an affidavit as to his
recollection of events on that day.

[10]        
In additional to this lay evidence, there are two expert reports and two
responsive expert reports before the Court.  One set was commissioned by the
defendant and written by Mr. Gerald Sdoutz (“Defendant’s Report”).  The
other set was commissioned by the plaintiff and written by Mr. David
Little (“Plaintiff’s Report”).  I am satisfied that both report writers are
experts, both have an engineering background and both appear to have written
similar types of reports on a number of occasions.

[11]        
The defendant McGinnis states that he was an experienced truck driver
who was driving a tractor-trailer along Highway 5 when the accident occurred.
He testified that on November 25, 2004, he was travelling from Chilliwack
to Edmonton with a full, though not particularly heavy, load on his truck.  He
testified in his affidavit that the weather became foggy around Barriere, B.C.
which is a town approximately 84 km south of the site of the accident on
Highway 5.  The plaintiff noted that the fog was getting heavier as he
headed north and was heavy at the accident site.

[12]        
A crucial issue is the speed of the defendant’s truck at the time of the
accident.  Since a driver is obligated under the Motor Vehicle Act to
drive at a speed that is not excessive relative to “visibility and weather
conditions”, the visibility at the time of the accident is also of importance.  To
that effect, I note that McGinnis states that he was able to see between 100
and 200 feet ahead of him at the time of the accident.  The posted speed limit
on Highway 5 at the point of the accident was 100 km/h.  The road was
flat and straight and it was bare of snow, though there was snow on the side of
the road.  The road was wet.  The defendant estimated his speed as he
approached the intersection to be in the range of 70 to 75 km/h.

[13]        
Darlene McGinnis estimated the truck’s speed to be between 70 and 80 km/h.
In terms of visibility, her evidence indicates a visibility of about a truck’s
length, or 70 to 76 feet.  At the previous criminal trial, Darlene McGinnis
conceded that her recollection as to speed was formed as a result of observing
the speed of the truck a considerable time prior to the accident.  She further
conceded that from her passenger seat in the truck, her observations of the
speedometer may not have been accurate and may, in fact, have been an
underestimation.

[14]        
In light of the fact that Darlene McGinnis’s recollection of speed was
formed significantly prior to the accident, and based on her concession as to
an inability to accurately view the speedometer, I place no weight on her
evidence as to speed.

[15]        
The expert reports also opined on speed and they come to different
conclusions.  Having reviewed the reports and for the reasons noted below, I
accept the Plaintiff’s Report as the better evidence of the speed of McGinnis’s
truck at the time of impact.

[16]        
In my view, the Defendant’s Report contains a fundamental error in that
it assumed a period of non-breaking from the time of impact until the time the
vehicle hit the shoulder on the far side of Highway 5.  This assumption
was based on the photographs of the accident scene viewed by the author, which
did not show skid marks from the point of impact to the far side shoulder of
Highway 5.  I note that the photographs are unclear.  In fact, the
photographs are very poor.  Crucially, however, the police report from the date
of the accident indicated that the skid marks continued from the point of
impact to the place where the vehicle hit the shoulder on the far side of the
highway.  This issue is important because the reports themselves must rely on
measurements of stopping distances to determine the speed at impact.  Crucial
to that determination is a determination of whether or not there was continuous
braking, as indicated by continuous skid marks.  Based on this assumption, the Defendant’s
Report eliminates 21 m of continuous breaking from its calculations.  The Defendant’s
Report concludes that the pre-skid speed was somewhere between 84 and 90 km/h.

[17]        
I should note that the Defendant’s Report also makes a further
assumption that I cannot accept, in that it assumes that the injuries suffered
by the defendant would cause him to take his foot off the brake after impact.  I
cannot accept this because I do not see that the author has the expertise to
opine on that, and even if he did, the fact that the police officers noted the
skid marks confirms braking.

[18]        
The Plaintiff’s Report, relying on the police notes of what they
observed at the time, namely continuous skid marks, estimates the speed at
somewhere between 90 and 100 km/h at minimum.

[19]        
I discount the defendant’s personal evidence as to his driving speed. 
It is of course self-serving by its nature and the evidence is not accompanied
by sufficient surrounding circumstances, such as the number of times he would
have checked his speed or any other confirmatory evidence, to make it more
believable than the calculated speed estimate of an expert.

[20]        
Though there is a conflict on the evidence, I am satisfied that I can
make a determination as to the speed of the defendant’s vehicle at the time of
impact.  I accept the Plaintiff’s Report as to the estimate of speed and
conclude on a balance of probabilities that it is most likely that the
defendant was driving, at minimum, between 90 and 100 km/h at the time of
impact.

[21]        
Having concluded that McGinnis was driving at a minimum rate of speed
close to or at the speed limit, the question becomes whether or not McGinnis
was driving too fast for the road conditions.  If I find he was, then s. 144(1)
of the Motor Vehicle Act would suggest that he failed to meet the
standard of care required of him.

[22]        
On this point, the crucial evidence before the Court is the evidence of
the police officer Sgt. Campbell and the other truck driver, Evan Smith,
both of whom have sworn affidavits in this proceeding.

[23]        
Sgt. Campbell was called out to investigate the accident.  He
states in his evidence that when he drove to the accident scene he had to
drastically reduce his speed.  He said he could only see 15 to 20 m, or 49
to 66 feet, ahead of him.  He says he was travelling at 70 km/h to the accident
scene and that that was a safe speed.  Additionally, in the transcript of
Sgt. Campbell’s evidence at the criminal trial, he said that, while
traveling at a speed of 70 km/h, he almost impacted another vehicle on
Highway 5 on while on his way to the accident.

[24]        
Evan Smith, another a truck driver, provided important evidence.  Evan
Smith states that he has been driving logging trucks in this area since 1979.  He
is very familiar with Highway 5 in the vicinity of Harmon Road.  He states
that he has encountered foggy conditions before on this road but had never seen
conditions as foggy as they were on November 25, 2004.  He confirmed that
on the day of the accident he was driving on the stretch of Highway 5
where it intersects with Harmon Road.  It would appear from his evidence that
he drove past that intersection shortly before the accident, delivered a load
of lumber to a sawmill a few miles away, and was then caught in the traffic
delay caused by the accident during his return trip.

[25]        
On his first trip past Harmon Road, Evan Smith noted that he reduced his
speed to 50 km/h due to the fog on the road.  On his return trip, he
further stated that, even at that speed, he almost had a collision with another
vehicle that had stopped on the highway because of the accident.  His evidence suggests
that he was at the accident scene just prior to the accident and then
approximately 20 minutes later, when the fog conditions would have been similar
if not the same as at the time of the accident.

Analysis:

[26]        
I note as pointed out by counsel for the plaintiff that the defendants’
evidence was clear that he was familiar with this road having driven it many
times over the years.  The road is rural but not remote.  It is a main highway
connecting a number of small communities in the North Thompson.  It would not
be unexpected that there would be things like school buses and perhaps even
pedestrian traffic on or near the highway, though pedestrian traffic is of
course much less likely in winter.  Evan Smith confirmed in his affidavit that
the date of the accident was a school day, and that a school bus stops at the
trailer park very close to Harmon Road.  In any event, there were and are a
number of side roads and driveways which feed into Highway 5 in this area
and the defendant, with his familiarity with Highway 5, would know this.

[27]        
The summary of evidence suggests that the defendant was operating his
vehicle on Highway 5 in very dense, in fact usually dense, fog.  The evidence
supports a conclusion that he was driving at minimum somewhere between 90 and 100 km/h.
I accept the evidence of Sgt. Campbell that visibility was approximately 66
feet.  I accept this because it is consistent with that of Darlene McGinnis.

[28]        
On November 25, 2004, other professional drivers, being fellow trucker
Evan Smith and Sgt. Campbell, adjusted their speed significantly in light
of the road conditions.  Evan Smith operated his vehicle at 50 km/h.  Sgt. Campbell
drove his vehicle to an emergency accident at only 70 km/h.  Even in
driving at these speeds, both Evan Smith and Sgt. Campbell reported a near
miss with other vehicles.  Sgt. Campbell was operating a car which would
likely be able to stop much more quickly than a fully loaded tandem truck.  In
light of the foggy road conditions, the speed at which Evan Smith drove would
have been a more appropriate speed for this defendant to have driven that day.  I
also note that at 50 km/h, Evan Smith was able to stop his truck and so
avoid a collision with an unexpected stationary vehicle in his lane of travel.

[29]        
Finally, I note that the Plaintiff’s Report opines that at 90 to 100 km/h,
the truck had a stopping distance of 390 to 430 feet.  That is about six
times the range of vision available to the defendant based on the
determinations I have made.  Even if I accepted the defendant’s evidence as to
the range of vision that was available to him, at maximum, that would be 200
feet, or about half the distance needed to safely stop in order to avoid a
hazard at the speed he was travelling.

[30]        
I conclude that on November 25, 2004, by operating his loaded tandem
truck at a speed of at least 90 to 100 km/h when the visibility was
limited to less than 100 feet due to dense fog, such that an operator
driving reasonably for the road conditions would more likely have driven at
close to 50 km/h, the defendant operated his vehicle in a negligent manner
in that he breached the standard of care established by s. 144(1) of the Motor
Vehicle Act by operating a vehicle at an excessive speed considering the visibility
and weather conditions.  I further conclude that this negligence was at least a
partial cause of the accident in that, but for the unreasonable and excessive
speed at which McGinnis was operating his vehicle, McGinnis could have avoided
the impact with Roy’s vehicle, just as Smith had avoided impact when travelling
at 50 km/h.

[31]        
In so concluding, I note the defendant’s argument and supporting case
law that, as a servient driver turning into a lane where the defendant had a
right of way, the plaintiff bears the onus of proving that a reasonable and
skillful driver would have had sufficient opportunity to avoid a collision (Walker
v. Brownlee and Harmon, [1952] 2 D.L.R. 450 at 461).  Here the collision occurred
over a very short period of time; however, I have found above that a reasonable
driver would have been travelling much slower and so would have had more time
to perceive the danger.  I therefore find that the plaintiff has met his burden
of proving that a reasonable and skillful driver would have had a sufficient
opportunity to avoid the collision.

[32]        
I also find that the plaintiff was negligent.  The plaintiff, as noted,
had no evidence to give by way of personal recollection.  This suggests that
there were three possible explanations for what happened in the plaintiff’s
operation of his vehicle that day.

[33]        
The first explanation for his decision to drive out of the side road and
turn left in front of a tandem truck which was driving towards him was that he
simply did not look to check if traffic was coming.  That would of course be
negligence.

[34]        
A second explanation is that he looked, saw the truck approaching within
the limited visibility distance offered by the fog, and calculated that he had
time to make his turn prior to the truck reaching his point on the highway.  At
that point, he was the servient driver.  A servient driver must yield the right
of way to immediate hazards and in this scenario he would not have done so.  So
in this second scenario, he would also have been negligent.

[35]        
A third, and perhaps most generous, explanation for the plaintiff’s
driving on that day was that he stopped at the intersection of Harmon Road and
Highway 5, he did not see the vehicle driven by the defendant approaching
because of the heavy fog, and he chose to make a left-hand turn.  I would also
find this to be negligent.  The fog was particularly heavy on the day in
question and this plaintiff, being a local resident who was working in the area
at the time, would be someone with greater knowledge of this roadway than even
the defendant.  A cautious servient driver, as Roy was required to be pursuant
to the Motor Vehicle Act, would exercise particular caution before
entering onto a roadway in those heavy fog conditions and in light of the fact
that oncoming vehicles had, on the face of it, the ability to travel upwards of
100 km/h.  In not taking the extra precaution of insuring safety, the
plaintiff was also negligent.

[36]        
As such, I conclude that the plaintiff was negligent in that he failed
to comply with s. 175(1) of the Motor Vehicle Act, when he entered
a through highway and in doing so failed to exercise appropriate caution and to
yield the right of way to traffic, traffic which was so close so as to
constitute an immediate hazard.

[37]        
However, based on the evidence before me, I cannot draw any particular
conclusion as to the relative level of negligence of these two negligent
drivers.  Better put perhaps, I cannot conclude based on the evidence before me
which driver was more negligent.  On the one hand, the plaintiff was clearly
the servient driver, but on the other hand, the defendant was, I find on the
evidence which I accept, driving at a speed far in excess of what would have
been safe for the road and weather conditions he encountered on that day.

[38]        
As such, relying on s. 1(2) of the Negligence Act,
R.S.B.C. 1996, c. 333, I apportion liability between the plaintiff and
defendant equally.  As such, the defendant is 50% responsible for the damages
resulting from the accident and the plaintiff is 50% responsible for the
damages resulting from the accident.

[39]        
In light of this finding, it would appear to me that the plaintiff is
entitled to his costs of this action, but if counsel cannot agree on that
point, they are at liberty to make further submissions to me through trial
scheduling in Kamloops.  Any such appearance must be scheduled within 60 days
of these Reasons being issued.

“The
Honourable Mr. Justice Groves”