Cannon v. Al Perrett Enterprises Inc.

2018 BCSC 337 Cannon v. Al Perrett Enterprises Inc.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Cannon v. Al Perrett Enterprises Inc., 2018 BCSC 337 Date: 20180306 Docket: S144383 Registry: Vancouver Between: Roy Garnet Cannon Plaintiff And Al Perrett Enterprises Inc. d.b.a. Kamloops Harley-Davidson Defendant Before: The Honourable Madam Justice Donegan Reasons for Judgment Counsel for the Plaintiff: J.V. Payne Counsel for the Defendant: C. Rhone Place and Date of Trial/Hearing: Vancouver, B.C. November 8-10, 2017 Place and Date of Judgment: Vancouver, B.C. March 6, 2018

INTRODUCTION [1] On August 21, 2013, the plaintiff, Roy Garnet Cannon, was injured when the motorcycle he was operating crashed on a highway near Merritt, British Columbia. No other vehicles were involved. The motorcycle had just been repaired at a repair shop owned by the defendant, Al Perrett Enterprises Inc. d.b.a. Kamloops Harley-Davidson. The plaintiff seeks damages from the defendant for the injuries he suffered in the crash, alleging breach of contract and negligence. The defendant denies any negligence or breach of contract. It denies in any manner causing or contributing to the plaintiff's accident. [2] The defendant now applies, pursuant to Rule 9-7 of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Civil Rules] to have the issue of its liability determined by way of summary trial.

BACKGROUND [3] The plaintiff commenced this action on June 5, 2014, alleging that following repairs done at the defendant's repair shop, he was operating his motorcycle when "the rear axle sheared off" causing him to lose control and crash. The defendant filed its Response to Civil Claim on July 23, 2014. A conventional trial was scheduled for nine days to commence February 5, 2018. [4] In August 2017, the defendant approached the plaintiff seeking to schedule a one-day summary trial on the issue of liability. The defendant's present application was filed on October 16, 2017, the plaintiff's response filed on November 6, 2017 and the application scheduled for November 8, 2017. The plaintiff was of the view the issue of liability should not be resolved by way of summary trial. His primary objection revolved around the contentious and conflicting evidence of the parties' experts. The parties agreed to cross-examine each other's expert at the summary trial, but the plaintiff felt one day was insufficient to conduct a thorough cross-examination of the defendant's expert. For this reason, the duration of the summary trial was extended to three days. Although thorough cross-examination eliminated the plaintiff's central objection to the summary trial procedure, he maintains some objection to its use. [5] Given the jury trial scheduled to commence February 5, 2018, I advised the parties following the hearing that I considered the determination of the issue of liability suitable for the summary trial process. I was subsequently advised that counsel agreed to adjourn the conventional trial, with dates to be reset in the event a trial on the issue of damages is required. [6] I will begin by explaining why I find this issue suitable for determination by way of summary trial.

SUITABILITY FOR SUMMARY TRIAL [7] Rule 9-7 of the Civil Rules applies to applications for summary trial. Rule 9-7(2) permits a party to an action to apply to the court for judgment under the Rule either on an issue or generally. Evidence may be tendered in a variety of forms - affidavits, answers to interrogatories, examinations for discovery transcripts, admissions and expert reports: Rule 9-7(5). [8] The scope of the summary trial application is set out in Rule 9-7(15): (15) On the hearing of a summary trial 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, (b) impose terms respecting enforcement of the judgment, including a stay of execution, and (c) award costs. [9] Under this Rule, the court "tries the issues raised by the pleadings on affidavits", that a "triable issue or arguable defence will not always defeat a summary trial application" and that "cases will be decided summarily if the court is able to find the facts necessary for that purpose, even though there may be disputed issues of fact and law," provided the court does not find "it unjust to do so":

Gichuru v. Pallai, 2013 BCCA 60 at para. 30 citing Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.). [10] In determining whether it would be unjust to proceed, the court is to consider a number of non-exhaustive factors, including the amount involved, the complexity of the matter, its urgency, any prejudice likely to arise by reason of delay, the cost of taking the case forward to a conventional trial in relation to the amount involved, the course of the proceedings, costs of the litigation and time of the summary trial, whether credibility is a critical factor in determination of the dispute, whether the summary trial may create an unnecessary complexity in the resolution of the dispute and whether the application will result in litigation in slices: Gichuru at paras. 30-31. [11] The Court in Gichuru summarized the jurisprudence in this area at paras. 34-35: [34] In summary, the jurisprudence is clear that, subject to certain guidelines, the decision as to the suitability of proceeding by way of summary trial to determine an action (or issue), is a discretionary one. Appellate deference is given to the exercise of discretionary powers in the absence of a clear conclusion that the discretion has been wrongly exercised, in that no weight or insufficient weight has been given to relevant considerations (see Creasey v. Sweny (1942), 57

B.C.R. 457 at 459 (C.A.); Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 at para. 104; Stone v. Ellerman, 2009 BCCA 294, 92 B.C.L.R. (4th) 203 at para. 94, leave to appeal ref'd [2009] S.C.C.A. No. 364; and Bell v. Levy, 2011 BCCA 417 at para. 75), or it appears that the decision is clearly wrong and may result in an injustice (see Taylor v. Vancouver General Hospital (1945), 62 B.C.R. 42 at 50, [1945] 3 W.W.R. 510 (C.A.)). [35] The authorities are also clear that a summary trial, although heard on affidavits in chambers, remains a trial of the action for which the plaintiff (even if not the applicant) retains the onus of proof of establishing his or her claim(s) and the defendant (even if not the applicant) retains the burden of establishing any defence that is raised. Mr. Justice Wood, writing for the Court in Miura v. Miura (1992), 66 B.C.L.R. (2d) 345 (C.A.), clarified this issue (at page 352): There is no reason why the onus should be reversed simply because the defendant moves for judgment under Rule 18A, thus requiring the plaintiff to prove her case in a summary trial proceeding. ... ... the onus of proof does not shift simply because a trial is conducted summarily under rule 18A [now R. 9-7]. As in an ordinary trial, the party asserting the affirmative of an issue must prove it on a balance of probabilities. I believe that such

a result is also consistent with what was said by McEachern, C.J.B.C. in Inspiration Management et al. v. McDermid et al. [citation omitted] at page 215 of the report: The test for R. 18A, in my view, is the same as on a trial. Upon the facts being found the chambers judge must apply the law and all appropriate legal principles. If then satisfied that the claim or defence has been established according to the appropriate onus of proof he must give judgment according to the law unless he has the opinion that it will be unjust to give such judgment. Indeed, the respondents gave express notice to Mr. Gichuru of his burden in the application by referring to the first paragraph of this passage in their summary of the legal basis for their application to strike Mr. Gichuru's action. [12] The defendant submits that all relevant facts necessary to determine the issue of liability in a fair and just manner are before me, that the matter is not complex and the only evidence in dispute, the opinions of the experts, has been thoroughly tested by cross-examination. The defendant also emphasizes that the parties would suffer unnecessary cost if the matter proceeded by way of conventional trial. [13] With the plaintiff's primary objection to the summary trial process eliminated by cross-examination of the experts and the extended length of the hearing, his remaining objections include his

view that the court may be unable to resolve the contest in the expert evidence, that his right to a jury trial is undermined and that proceeding to a conventional trial would allow the plaintiff "more time and flexibility to deal with complex expert evidence, and any other evidentiary issues or shortcomings that may arise. " [14] As this application seeks to effectively sever the liability and quantum issues in this trial, I am first to consider whether there are "extraordinary, exceptional or compelling reasons" to do so: Chun v. Smit, 2011 BCSC 412 at para. 9. [15] I conclude there are compelling reasons for severance in this case. Unlike the situation in Chun, there are no credibility issues that can be seen to be an integral part of both the liability and quantum sides of this case. As was the case in Gladney v. Capital (Regional District), 2015 BCSC 2585, there is, in the case at bar, no suggestion that the assessment of the plaintiff's damages is relevant to the defendant's liability. To borrow Weatherill J.'s words, I conclude "there is no good reason why the parties should proceed to a full trial on liability and damages where, as is the case here, the question of liability can easily be determined without a full trial": Gladney at para. 22. [16] Given the evidence adduced, the issues at play and the use of cross-examination of the experts, I think the issue of

liability is perfectly suited for determination on a summary trial basis in this case. [17] I find I am able to find the facts necessary to resolve the issue, even in the disputed areas. The use of discovery transcripts, pre-trial cross-examination and cross-examination at trial assists greatly. I also find it would be just to try the issue of liability on a summary trial basis. Both parties came to this summary trial fully prepared. The evidence adduced derives from a number of sources, including affidavits, examination for discovery transcripts, admissions, pre-trial cross-examination, expert reports and, of course, cross-examination of the experts. Other than the opinions of the experts and perhaps some aspects of the plaintiff's evidence, there is very little controversy on the factual issues. The factual determinations and the applicable law are not overly complex. Credibility of the defence expert was the only issue of credibility raised and, through cross-examination of that witness, I find I am able to make determinations in that regard. [18] This three-day summary trial with cross-examination of the experts is certainly more cost-effective than a conventional trial. If liability is resolved in the defendant's favour, no further trial time would be needed. If liability is resolved in the plaintiff's favour, settlement negotiations may be promoted or, if necessary, a

conventional trial could still be held within a reasonable time, for a shorter duration and with less complexity and cost than the original conventional trial. As well, I see no potential for duplication or inconsistent findings by deciding liability first as there are no issues intertwined between liability and quantum that would remain. [19] In reaching this conclusion, I considered the plaintiff's position that he should not be deprived of his right to a jury trial. The plaintiff argues that the wisdom and combined decision-making of a jury should not be sacrificed in the name of expediency. For this proposition, he relies upon Gish v. Hooper Insurance and Financial Services Inc., 2010 BCSC 605, reversed on other grounds, 2011 BCCA 232. [20] However, Gish does not appear to stand for this proposition. In Gish, the defendant made a summary trial application to have a negligence claim dismissed. Madam Justice Ker reviewed the jurisprudence on the role a jury notice has on the issue of summary trial suitability and held (at para. 168) that: the filing of a jury notice is one of the factors to consider in assessing whether a matter is appropriate or suitable for determination under the summary trial procedure of Rule 18A. Thus the fact that the plaintiff would be deprived of a trial by jury is a factor that must be given consideration in this case. [21] However, Ker J. went on

to state, in the same paragraph, that: However, the rule contemplates that this [deprivation of a jury trial] may occur in appropriate cases. While the denial of a jury trial is a factor the court can consider, it is far from determinative and should be viewed in the light of other factors bearing on the test of comparative prejudice. [22] I have given consideration to the denial of a jury trial on the issue of liability and am satisfied in light of all of the other factors I have outlined, it is not a factor to be given significant weight. Should the matter of damages need to be assessed, the plaintiff's trial by jury is still preserved. [23] To address the plaintiff's submission that a conventional trial is necessary to give him extra time to subpoena Corporal Lyons, one of the RCMP officers who attended the scene, and address potential evidentiary issues, I note the plaintiff did adduce an affidavit from Corporal Lyons in this summary trial. In the context of a summary trial, each party has the obligation to come prepared to prove their claim and runs the risk of judgment being rendered against them if they do not: Gichuru at paras. 32-33. In any event, the plaintiff has clearly met his obligation to come prepared to prove his claim and did address all evidentiary issues that arose. [24] Finally, I see no prejudice to the plaintiff arising from any reason of delay. Given the extensive pre-trial procedures utilized by the parties and the cross-examination of the experts, I see no prejudice to the plaintiff through use of this summary trial procedure at all.

FACTS [25] The plaintiff has tendered evidence from several witnesses, including the plaintiff, Corporal Lyons, the plaintiff's friend, and mechanical engineer Dr. Toor. The defendant has tendered evidence from Tanner Olsen (the technician who repaired the plaintiff's motorcycle) and mechanical engineer Dr. Cepuṧ. [26] In this section, I will make many of my findings of facts, most of which are not contentious, and outline the evidence of the experts (which is very contentious). I will make additional necessary findings of fact in the analysis portion of these reasons where they arise. [27] The plaintiff was 54 years old at the time of the accident. The accident occurred at approximately 10 a.m. on August 21, 2013. The plaintiff is an industrial insulator by trade and, at the time of the accident, lived in Coquitlam with his family. He has been riding motorcycles since he was eight years old. [28] The defendant is a company incorporated under the laws of British Columbia. At the time of the accident, it was doing business as Kamloops Harley-Davidson. [29] Tanner Olsen was an employee of the defendant at the relevant time and performed some repair work on the defendant's motorcycle on the day before the accident. Mr. Olsen was a Harley-Davidson trained motorcycle technician who started working in the defendant's business about ten years ago. He continues to work there, although

the business has changed hands in recent years. [30] The plaintiff had been having problems with his motorcycle - a 2000 Harley-Davidson Softail Deuce Model FXSTDI (the "Motorcycle") before the accident occurred. [31] In August 2012, the plaintiff had both tires on the Motorcycle replaced by a business called Outta Control Cycles. [32] On June 3, 2013, the plaintiff had repair work done on the Motorcycle, this time using the services of Kreater (West) Custom Motorcycles ("Kreater"). [33] On or about August 18, 2013, while in the midst of an annual motorcycle trip with his friend, the Motorcycle had engine trouble. The plaintiff was operating the Motorcycle about 100 kilometres outside of Banff, Alberta, when, as he described it, the "engine blew up". The plaintiff had the Motorcycle towed to Kelowna, British Columbia and arranged for it to be repaired at Kreater. [34] On August 18 or 19, 2013, Kreater repaired the Motorcycle engine at a cost of $8,600.00. The plaintiff then retrieved the Motorcycle and carried on his road trip. [35] On August 20, 2013, the day before the accident, the plaintiff again had problems with the Motorcycle. The rear drive belt broke. This occurred not far from Kamloops (about a 20-minute tow ride away), so the plaintiff had the Motorcycle towed to the defendant's repair shop. The plaintiff hired the defendant to inspect, service and repair the

Motorcycle. Mr. Olsen was the technician who did so. [36] Mr. Olsen's evidence comes to me in the form of an affidavit and from a transcript of his pre-trial cross-examination on that affidavit. Mr. Olsen, as of 2013, had worked on many Harley Davidson motorcycles, taken courses in the repair and maintenance of them and was very familiar with removing and replacing motorcycle wheels. [37] Mr. Olsen replaced the broken drive belt, rear tire and brake pads on the Motorcycle on August 20, 2013. Mr. Olsen recalled the drive belt, an after-market belt, "was shredded and blown off and wrapped around the front sprocket", but that upon inspection "no damage was caused by the drive belt to the other parts of the motorcycle". [38] Mr. Olsen attached copies of two relevant documents to his affidavit - the service invoice for work and parts for the Motorcycle (the "Service Invoice") and the service order worksheet (the "Worksheet") for the Motorcycle. Mr. Olsen used these documents to explain the work he did on the Motorcycle as he has little to no recollection of the actual work. In accordance with his usual practice, Mr. Olsen explained that if he came across a concern or issue when working on a motorcycle, he would write it down on the Worksheet. For his work on the Motorcycle this day, Mr. Olsen wrote down that he replaced the belt and all primary seals and replaced the rear tire and

brake pads. He further wrote down details about the belt he was replacing. [39] The Motorcycle's mileage was recorded when it arrived and left at the defendant's repair shop on the Service Invoice. When the Motorcycle arrived at the repair shop on August 20, 2013, the mileage was 58,037 kilometres. When it left on August 21, 2013, the mileage was 58,040 kilometres. [40] Mr. Olsen explained that as part of his usual practice following repairs, he took the Motorcycle for a test drive on his usual test drive route, which is about three kilometres. This explains the three kilometre difference referenced above. If Mr. Olsen found a problem on any test drive that needed to be repaired, he would write it down on the service order worksheet. He made no such notations on the Motorcycle Worksheet. From this, I infer that he found no problems with the Motorcycle on its test drive. [41] Mr. Olsen also explained that the parts listed on the Service Invoice are the usual parts that he would use for replacing a belt on a motorcycle, except for the "rubber bumper", an item that keeps the brake calipers from rattling. Mr. Olsen believes the only reason he would have put a rubber bumper on the Motorcycle was because the old one was either missing or damaged in some way. [42] Mr. Olsen had a Harley Davidson service manual for Softail Models at the time he worked on the Motorcycle. Three pages

from that manual are attached to his affidavit, showing the procedure for replacing the rear tire. Mr. Olsen deposed that he follows that procedure when he replaces rear tires on motorcycles. Instruction 3.a. requires the rear axle to be inserted right to left. Mr. Olsen installed it left to right. [43] On August 21, 2013, the plaintiff collected the Motorcycle from the defendant's repair shop and rode off on it. He described that the Motorcycle "felt great" when he drove it away. [44] The plaintiff was heading south to Merritt, in order to meet up with his friend and travelling companion again. The two friends had discussed which route would be best for the plaintiff to take from Kamloops to Merritt. Originally, the plaintiff had leaned towards taking Highway 5 (the Coquihalla Highway); however, his friend suggested that taking Highway 5A would be the better choice because it had switch-back turns and a relatively lower speed. These considerations were relevant to the plaintiff because travelling at a relatively lower speed would give him the opportunity to "break-in" his new rear tire. He knew he had a new tire that can be "slippery" during its initial use and that he, like all riders, have to be careful during its break-in period. [45] About 15 or 20 minutes after leaving the defendant's repair shop in Kamloops on Highway 5A, the plaintiff reached a curve in the road with a

scenic pull-out area by a lake. It was about 10 a.m. and the plaintiff was approximately 59 kilometres away from his starting point at the defendant's repair shop. The pull-out area has a gravel surface. Vehicles use the pull-out to leave the highway and stop to look at the view. It was a clear, dry, summer day. No other vehicles were involved in the accident. No one saw the accident occur, although a truck driver parked at the pull-out heard the crash. The Motorcycle slid off the roadway, through the gravel pull-out area and into a cement no-post barrier. [46] As to his speed at the time of the accident, the plaintiff has given slightly varying accounts. He said during his examination for discovery that the Motorcycle was travelling between 80 or 90 kilometres per hour. To Corporal Lyons shortly after the accident, he said that the Motorcycle was travelling at maybe 100 kilometres per hour. During his examination for discovery, he insisted he was travelling 90 kilometres per hour and explained that his inconsistent statement to the officer was perhaps the result of pain killers given to him at the hospital after the crash. [47] On the basis of the plaintiff's evidence, the only evidence of speed adduced at trial, I find he was operating the Motorcycle at a rate of speed between 80 to 100 kilometres per hour as it entered the curve in the roadway. The posted speed limit in that

area of Highway 5A is 90 kilometres per hour. [48] As to what happened, the plaintiff deposed that he believes he crashed the Motorcycle because: 12. the rear axle of the Motorcycle broke and that the back wheel of the Motorcycle locked up immediately prior to [the] Accident. I felt the Motorcycle stop moving and the momentum carried my body through the windshield of the Motorcycle and over the handlebars. [49] I find I cannot accept this evidence. The plaintiff does not explain the basis for this belief, but more importantly, this evidence contradicts what he told paramedics and police on the day of the crash and the evidence he gave at his examination for discovery in January 2015. [50] To the paramedics on scene, the plaintiff said he was coming around a corner and "wiped out" and that he had a new tire on the back of the Motorcycle that may be a "little greasy". To Corporal Lyons, he said the Motorcycle "just come up from underneath me", it "just went" and that he did not "know what, just I don't really know the hell happened". [51] The plaintiff expressed similar uncertainty about what happened at his examination for discovery, but added a recollection that he did not apply his brakes before the crash, that he down-shifted and the next thing he knew he was sliding down the road. However, at least three times in his examination for discovery the plaintiff said he did not

know what happened. Of note, he was specifically asked if he recalled "flipping over the handlebars" and he said that he could not recall that. This contradicts his affidavit evidence. [52] With his inconsistent versions of events, I am left to question the reliability of his current evidence to the extent that I find I cannot accept it. At most, all I can find is that the plaintiff cannot really say what happened in the crash. [53] Corporal Lyons cannot say what happened either. Corporal Lyons was not tendered as an expert witness in any field. As part of his investigation into the Motorcycle crash, he prepared an investigative report. This report is attached to his affidavit. It was not prepared for the purposes of this litigation. [54] Corporal Lyons attended the scene at 11:30 a.m. on the day of the accident. He saw the Motorcycle leaning against the cement no-post at the pull-out. He observed a skid mark in the centre of the southbound lane of the roadway that connected to scrapes and skid marks in the gravel of the pull-out. He noted the skid mark was straight and about 15 metres long before "the Motorcycle was laid down". He saw the scrape marks continue to the edge of the pavement and then on to the gravel where they ended at the cement no-post. On the cement no-post, Corporal Lyons noticed the Motorcycle had left some rubber and scrape marks as a result of the impact

and that it had come to rest about five metres from the point of impact. Corporal Lyons took no formal measurements, but paced the length of the skid marks on the road at "89 paces or approximately 70 metres" in total. He also noticed the Motorcycle's rear tire and rim were severely damaged. [55] Another officer took photographs of the scene, which are before me. Corporal Lyons deposed to their accuracy. [56] While the officer's evidence about what he saw and did are admissible, Corporal Lyons also opined in his investigative report about the cause of the skid mark, the Motorcycle's speed at the time of the crash and the cause of the crash itself. The defendant correctly opposes the admission of these opinions. [57] Generally, opinion evidence is inadmissible unless it is expert evidence. Expert witnesses are permitted to offer opinions where a trier of fact is unable to form his or her own conclusions without help. In order to be admissible as expert opinion evidence, certain well-established criteria must be met. The expert must be properly qualified to offer the opinion and his or her evidence must be found to be relevant, necessary and not subject to any exclusionary rule. The plaintiff does not seek to tender Corporal Lyons as an expert witness. [58] Another exception to the general rule that opinion evidence is inadmissible exists with respect to lay witnesses, as outlined in Graat v. The Queen, [1982] 2 S.C.R.

819. As Grauer J. summarized in American Creek Resources Ltd. v. Teuton Resources Corp., 2013 BCSC 1042 at para. 14: Lay opinion evidence may be admissible under circumstances discussed at length in Part II of Chapter 12 in The Law of Evidence in Canada, where the learned authors state at paragraph 12.14: Courts now have greater freedom to receive lay witnesses' opinions if: (1) the witness has personal knowledge of observed facts; (2) the witness is in a better position than the trier of fact to draw the inference; (3) the witness has the necessary experiential capacity to draw the inference, that is, form the opinion; and (4) the opinion is a compendious mode of speaking and the witness could not as accurately, adequately and with a reasonable facility describe the facts she or he is testifying about. But as such evidence approaches the central issues that the courts must decide, one can still expect an insistence that the witnesses stick to the primary facts and refrain from giving their inferences. It is always a matter of degree. As the testimony shades towards a legal conclusion, resistance to admissibility develops. [59] Corporal Lyons' evidence about what he saw and did in the course of his investigation is, of course, admissible evidence, available to me to be weighed in the final analysis. However, the opinions that he offers in his investigative report go beyond what

he saw and did. They go to the principal issue in this case. There is no evidence about Corporal Lyons' experiential capacity to form the opinion and his opinions go well beyond matters of everyday inferences from observed facts or a compendious mode of describing his observations. Rather, his opinion evidence concerns matters of specialised, technical expertise for which he is not qualified to give. [60] I turn now to outline the evidence of the two experts. The plaintiff and defendant each retained highly qualified engineers to examine the Motorcycle and the scene as depicted in the photographs. Neither expert attended the scene or conducted a reconstruction analysis. The experts reached different conclusions about the likely cause of the accident and are both highly critical of one another's findings and conclusions. Each expert tendered two reports, his second report a rebuttal to the other. Each expert was cross-examined at trial. I will make my findings with respect to their evidence in the analysis portion of these reasons. Dr. Amrit S. Toor [61] The plaintiff retained Dr. Toor, an expert witness qualified to give opinion evidence in the areas of mechanical engineering and accident reconstruction, to document the damage to the Motorcycle (specifically the rear wheel and axle) and to "technically assess the likely cause of the damage sustained to the Motorcycle". Dr. Toor prepared two reports - the first dated November 20, 2013 and his rebuttal report dated October 27, 2017. [62] For his first report, Dr. Toor was given a list of assumptions upon which he was to rely, found at page 2: The following assumptions were provided and relied upon for the basis of the report: 1) The subject incident occurred on August 21st 2013, at approximately 10:00 am.

2) The incident occurred on Highway 5A, between Kamloops and Merritt, BC.

3) Mr. Roy Cannon was the operator of a 2000 Harley Davidson Softail motorcycle (the Cannon motorcycle), at the time of the incident: a) The rear axle sheared off the Cannon motorcycle. b) Mr. Cannon was thrown from the motorcycle. c) Both Mr. Cannon and the motorcycle skidded along the pavement, coming to rest when they hit a concrete barrier.

4) At some time before the incident occurred: a) Mr. Cannon had experienced issues with the motorcycle, including: i. The drive belt coming off. ii. A new rear tire being quickly worn and needing to be replaced. b) Both of the above noted mechanical issues were addressed at a repair facility shortly before the incident of August 21st 2013. [63] Dr. Toor also listed the data that was provided to assist him in preparing his report at page 2 as well: · Components/pieces from the Cannon motorcycle, including part of the rear axle and welded nut (provided in a small plastic bag). · Receipts for repair work done between August 28th 2012 and August 21st 2013; - Invoice 575, Outta Control Cycles, dated August 28th 2012. - Invoice 46663, Kreater (West) Custom Motorcycles, dated June 3rd 2013. - Invoice 50933, Kreater (West) Custom Motorcycles, dated August 19th 2013. - Invoice 166365, Al Perrett Enterprises Inc., o/a Kamloops Harley-Davidson, dated August 21st 2013. · ICBC Vehicle Registration for the Cannon motorcycle. · Digital copies of 3 photographs of the Cannon motorcycle. [64] Dr. Toor conducted no formal accident reconstruction analysis. The actual mechanics of the accident were provided to him as assumptions that the rear axle sheared off, the plaintiff was thrown from the Motorcycle and the plaintiff and Motorcycle skidded along the pavement. [65] In addition to the various

pieces of the Motorcycle, Dr. Toor inspected the Motorcycle twice - once on October 1, 2013 at a towing facility in Merritt and the second on November 12, 2013 at a storage facility in Vancouver. [66] Dr. Toor observed the following damage to the Motorcycle: · The rear axle was fractured at its left side; the provided detached fractured rear axle piece matched with the fracture edge on the motorcycle axle. · The rear tire bead was separated from its rim and the rear wheel was directed to the right. · The air filter cover was detached. · The right side of the motorcycle had multiple abrasions, including the right side of the exhaust and fuel tank. · The left side of the motorcycle had multiple abrasions, including the left side of fuel tank and the crank casing. · Both front signal light lenses were missing and the front right signal light bulb was broken. · The rear left signal light was deformed and displaced toward the rear tire. · The rear tail light was partially detached and hanging loose. · The rear fender was deformed to the right. · The rear seat (for a pillion passenger) was scuffed and torn. · The left side rearview mirror was detached. · The left side clutch lever was deformed and the edge of the hand grip had abrasions. · The headlight casing was dented. · The windshield was found separated with multiple abrasions. [67] Dr. Toor also observed that the left side rear

axle cover was detached, but the right side rear axle cover remained attached. He, therefore, removed the right side rear axle cover to inspect the underlying components. There, he found the adjuster bolt "broken and deformed". He also observed the right arm of the rear fork was "deformed inwards (left)". The deformation to the right arm of the rear fork was, in his view, visibly "notable via the geometrical differences between the left and right arms of the forks and stress cracks in the chrome plating". [68] Dr. Toor's analysis is found at pages 7 and 8. He opined that the right rear fork arm deformation he observed was likely present before the crash and that this deformation (and associated cracking of the chrome plating) would have been visible upon inspection. Dr. Toor further opined that this pre-accident deformation of the right rear fork arm likely prevented proper alignment and tightening of the rear wheel. As a result, he believes pre-stresses generated in an attempt to align the rear wheel on the deformed fork which likely led to a "chain of failure of the rear right adjuster bolt and rear axle" ultimately causing the crash. [69] Dr. Toor's theory forms the primary basis of the plaintiff's case. In short, the plaintiff says there was a deformed rear fork arm that should have been seen by Mr. Olsen when he worked on the Motorcycle. The plaintiff says the deformation

either caused a misalignment in the rear wheel, or Mr. Olsen caused the misalignment by tightening the adjustment bolt despite the deformation. This misalignment caused a build up of pressure which caused the failure of the rear axle and lock up of the rear tire, causing the crash. [70] Dr. Toor prepared a second report to respond to a report prepared by the defendant's expert, Dr. Cepuṧ. In response to Dr. Cepuṧ' opinion that the new rear tire was slippery and control of the Motorcycle was lost around a corner, Dr. Toor re-affirmed his conclusion that the accident was caused by pre-existing damage to the Motorcycle combined with action taken by Mr. Olsen. For this report, he was provided with photographs taken at the crash scene. [71] Dr. Toor disputed Dr. Cepuṧ' opinions that the crash was likely caused by a slippery rear tire and that the deformation of the right rear fork was caused by the accident. Although Dr. Toor did not rule out the possibility that all of the damage to the Motorcycle occurred as a result of the crash, he disagreed with Dr. Cepuṧ' assumption that the plaintiff simply lost control on the corner. He explained the reasoning behind his disagreement at page 12: a) The incident occurred near the end of a relatively straight section of road and within a minor curved section of the highway. b) The characteristic patterns of the tire mark deposited by the

Cannon motorcycle are neither consistent with the application of brakes by the rider or a loss of control due to a lack of friction. c) The features of the tire mark are most consistent with the orientation of the rear wheel misaligned from the direction of travel of the motorcycle. d) The physical evidence provides a good indictor of rear wheel misalignment. [72] Dr. Toor concluded that Dr. Cepuṧ considered incorrect and incomplete dynamics of the incident and was incorrect in his assessment of the cause of the accident. He further opined: The physical evidence is consistent with the observations made during the Cannon motorcycle examination and the Intech report dated November 20th 2013, which indicates that the rear wheel of the Cannon motorcycle failed. [73] Cross-examination of Dr. Toor was brief. Dr. Toor agreed that he did not attend the scene, did not prepare detailed measurements of scene geometries, did not prepare a scaled vehicle and scene drawings, nor did he conduct component failure stress analysis tests. Dr. Toor also conceded the possibility of gravel on the roadway at the location of the incident and acknowledged that he did not know precisely where the plaintiff had been operating his Motorcycle in the laneway when the incident occurred. [74] The defendant takes the position that Dr. Toor's opinions about the cause of the accident should not be accepted

because they are unsupportable on the evidence and their fatal flaws were exposed by the opinion of Dr. Cepuṧ. Dr. Cepuṧ [75] The defendant retained Dr. Cepuṧ, an expert witness qualified to give opinion evidence in the areas of mechanical, metals and materials engineering and accident reconstruction, to review Dr. Toor's report and findings and conduct his own examination to offer an opinion. [76] Dr. Cepuṧ prepared two reports - his initial report dated April 20, 2017 and a rebuttal report dated November 5, 2017. [77] Dr. Cepuṧ was highly critical of Dr. Toor's findings and opinions, calling them "largely theoretical and unsupportable by the evidence". He emphasized throughout his report that Dr. Toor's theory impossibly required, as its foundation, that a small selective element of damage found on the Motorcycle after the crash actually pre-existed the crash, while the balance of the extensive damage occurred in the crash dynamics. [78] Dr. Cepuṧ first challenged the assumptions given to Dr. Toor. He emphasized to assume that the rear axle of the Motorcycle was sheared off and that the plaintiff was then thrown from the Motorcycle assumes a fact very much in issue. Rather, Dr. Cepuṧ opined that the fractured axle is consistent with "a significant overload event" such as losing control and crashing. In other words, the damaged rear axle was caused by the crash. [79] Dr. Cepuṧ

criticised Dr. Toor's report in a number of other areas. [80] First, he was critical of Dr. Toor's failure to consider the legitimate and logical possibility that the tire may have slipped out from under the Motorcycle as it navigated the curve due to a combination of environmental, road and/or tire conditions. [81] Second, Dr. Cepuṧ disagreed strongly with Dr. Toor's conclusion that the deformed rear right fork arm likely caused misalignment in the rear wheel before the accident. He explained that it is not possible for Dr. Toor to say the deformation in the right rear fork arm existed prior to the crash, rather than being a result of the crash, or that the deformation caused the accident. Rather, in his view, the more logical view is that the crash caused all of the damage. Dr. Cepuṧ explained that in order for Dr. Toor to select a damaged component from a post-crash motorcycle and identify it as pre-crash damage, he would have to provide a compelling explanation and Dr. Cepuṧ could see no such explanation. He wrote: No such compelling explanation is provided. Instead, Dr. Toor reaches the unsupported conclusion that tire wear was abnormal, hypothesizes that the rear right fork was misaligned to cause it, arbitrarily selects traumatic damage to the rear right fork as having pre-existed the extensive list of traumatic damage to the motorcycle, applies dubious solid mechanics

to the analysis, and states that were the pre-existing damage detected this might have been avoided. There is no means to prove that there was any pre-existing damage, and no explanation of how the rear end was traumatically damaged prior to the accident. As such Dr. Toor's opinion requires circular argument. [82] Dr. Cepuṧ went on to demonstrate that damage to the adjuster bolt is explainable by the accident forces. The forward movement of the axle, caused by the crash itself, in turn caused the damage. The visible "witness marks of scratches" at the right side wheel drop out were explained to be evidence of this sequence. [83] Dr. Cepuṧ disputed Dr. Toor's opinions on the pre-crash sequence of events likely leading to the crash. Dr. Toor's opinion was that there was "good and clear evidence" of deformation of the rear right arm fork which lead to improper alignment and tightening of the rear wheel, which lead to "pre-stresses" generated in an attempt to align the rear wheel on the deformed fork, which lead to a "sequence of failures" of the rear right alignment bolt and rear axle thereby causing the crash. Dr. Cepuṧ addressed each of these propositions and explained how, in his view, Dr. Toor's individual findings leading to his broader theory all collapse under scrutiny. He wrote at pages 12 and 13 of his first report: First, the damage he requires to have pre-existed the

accident is traumatic in nature - bent dropouts with cracked chrome plating. This requires forces well in-excess of regular operating conditions to have formed. He does not explain how this initial traumatic damage was accumulated. Pre-existing forces capable of bending dropouts would have required very significant lateral loading, which would have likely destroyed the motorcycle, rendering it un-ridable, and unavailable for this accident. Secondly, by virtue of Dr. Toor's pre-existing damage being traumatically created, there is no means by which it could objectively be separated from traumatic damage caused by this accident. Thirdly, and most importantly, there is no connection between alleged wheel misalignment and the axle fracturing. Dr. Toor has performed no metallurgical failure analysis on the axle to determine if it was suitably manufactured, free of defects, and otherwise suitable to the task. He does not examine the fracture surface or comment on its morphology. He has not shown there to be any indication of progressive failure to the axle - which is mandatory for his explanation to have any footing, and technically not negotiable. There is no mechanism of metallurgical crack growth in a ductile material such as this axle which allows for an undamaged axle to spontaneously fracture due to normal installation forces. The axle was installed using a properly calibrated

torque wrench -I verified this as a first step in my investigation. Since the adjuster bolt is used prior to tightening the axle nut, there can be no stresses associated with the adjuster, it simply positions the axle prior to it being tightened. The only stresses on the axle were operational and installation. While the installation stresses were verified to be appropriate by the torque wrench - the operational stresses would have been exceeded in an accident, due to the force applied to the wheel during the crash event - as evidenced by the fractured rim. The only way installation stresses and regular operational loads would cause an axle to fail would be if the axle was flawed. If it were flawed it would have very likely displayed evidence of progressive crack growth prior to failure, this is because these components are specifically manufactured from materials which yield before breaking and have relatively good damage tolerance. They do not spontaneously fracture unless exposed to a massive overload. [84] Dr. Cepuṧ also disputed Dr. Toor's opinion that "replacement of the rear tire after only 8,076 kms coupled with worn rear brakes" was a strong indicator that the rear wheel was misaligned before the crash. Dr. Cepuṧ wrote: As covered earlier, it is impossible to objectively state that there was previously existing damage to the rear right fork arm. In fact, there is

similar damage to the left rear fork arm identical in appearance. There is no logical basis upon which to attribute damage to the right rear fork arm as having existed prior to the accident, but somehow damage to the left as having been formed after the accident. Damage to both sides was formed under traumatic loading conditions present during this accident. There is no objective evidence to indicate otherwise. The rear tire acquired 8,076 km before requiring replacement. This is 36% higher than average based on the following source: On average, a sport motorcycle's front tire can last 3,700 miles (5,954 km) and 1,800 miles (2,896 km) for a rear before both need to be changed. This is if both tires are well maintained and are regularly checked. However, by running two or even three psi less than the recommended pressures you can actually cut the life of a tire by as much as half. With respect to the brake issue, Dr. Toor only mentions it a single time in his report. He does not provide any backing information or facts, does not explore it further, nor does he use it in any opinion. More importantly, there is no mention of when the last brake job prior to August 20, 2013 was performed. It is known when the tire was last changed prior to August 20, 2013, but the brake history is not known. If any brake work was performed prior to August 20, 2013, it predates all available

invoices, making it a very long time since the last change - the brake was due for a change. There is simply no supporting evidence that brake wear was out of the ordinary. [85] Dr. Cepuṧ specifically addressed Dr. Toor's opinion that the "failure of the rear right adjustment belt indicates there was an attempt to align the wheel with the deformed rear right arm fork". Disagreeing strongly with this opinion, Dr. Cepuṧ wrote: I disagree with the above conclusion. Failure of the right rear adjustment bolt in no way indicates that there was an attempt to align the rear wheel - it indicates that the bolt experienced a massive overload during the accident and subsequently failed. This is the simplest and most logical explanation, which also has the benefit of being supported by the evidence. Contrary to Dr. Toor's opinion or assumption, the bolt's failure cannot be isolated from the extensive list of damage to the motorcycle for the purposes of advancing an accident reconstruction theory, in this case. Dr. Toor provides no explanation as to how an attempt to align the wheel using the adjustment bolt prior to the accident could be related to the failure of the adjustment bolt. There is a brief unexplained mention of a buildup of lateral forces on page 7 of his report, but if Dr. Toor had created a freebody diagram of the loads at work it would be apparent that a much smaller diameter

adjustment bolt could not possibly generate the forces required to fracture the axle - more-so considering that the fracture took place at the left side of the motorcycle. Further, Dr. Toor's argument reflects a poor understanding of the function and correct use of the adjustment bolt. Qualified mechanics would not attempt to use the adjustment bolt while the axle was tightened, the evidence does not support that any such activity was performed, yet Dr. Toor requires this to advance his theory. The wheel axle nut is not tightly clamped when the adjustment bolt is used, otherwise attempting to move the adjuster would be futile. Instead, the wheel is resting in the dropouts against the adjuster, at which point it is turned in or out to achieve the desired wheel alignment. Only then is the axle tightened to a torque of 30-45 lbs, as recommended by the Harley-Davidson Service Manual, equating to between 320 lbf and 480 lbf of clamping force at the rear fork drop out. [86] He went on to explain why, in his opinion, there is compelling evidence the adjustment bolt failed as a result of the crash. [87] Dr. Cepuṧ summarized his view of Dr. Toor's findings and conclusions at page 21: Dr. Toor's conclusion is largely theoretical and unsupportable by the evidence. He requires that a small selective element of damage pre-existed the crash, while the balance of damage surrounding it is

post-crash. He concludes that a broken adjuster implies that an alignment operation was performed, and that therefore the selected element of damage should have been detected by the person performing the adjustment. He does not offer what should have been done at that point in time. All the damage is most logically and attributed to the accident. The evidence [supports] this explanation. There is no evidence of pre-existing damage. There is no evidence of an incorrectly aligned rear wheel. [88] Dr. Cepuṧ also opined about the cause of the accident at pages 21-22: In my opinion, the evidence overwhelmingly supports a clear sequence of events leading to the accident, which does not require tenuous assumptions or selective unsupportable observations, conclusions, or opinions.

1) The motorcycle was on a brand-new rear tire, known to be initially slippery.

2) Control of the motorcycle was lost around a corner.

3) The crash resulted in extensive damage to the motorcycle, rendering it unrideable.

4) All the damage is consistent with the traumatic impact associated with crashing - including the fractured axle and adjuster.

5) There was no damage to the rear end of the motorcycle prior to the accident. [89] In his second report, Dr. Cepuṧ reiterated the conclusions from his first report and disagreed with Dr. Toor's newest opinions that the skid mark from the scene suggested rear wheel misalignment before the crash. He opined: The skid mark photographic evidence I reviewed is poor and unclear. At best, it is consistent with the rear tire of the motorcycle yawing towards the apex of the turn, as would be expected if it began to slide outwards. This is consistent with my initial report. No detailed photographs were taken which might suggest the direction the rear tire was pointed - only that it was sliding in the direction it was compelled by the physics of the turn. There is no evidence which would suggest any degree of rear wheel misalignment. I do not believe this would be possible regardless the wheel alignment. Once the rear tire starts to slide it can yaw left and right while generally following the front of the motorcycle. It would not require any degree of misalignment to do so. To say the skid mark is most consistent with any manner of misalignment ignores the far more obvious fact that regular yaw will generate an identical skid mark. [90] Dr. Cepuṧ also noted that the plaintiff's description of the Motorcycle as feeling "great" prior to the accident is inconsistent with the degree of

misalignment of the rear wheel necessary to make Dr. Toor's theory possible. He wrote: Mr. Toor cannot have it both ways. The motorcycle cannot have "felt great" prior to the accident, yet be so grotesquely misaligned that it resulted in a spontaneous fracture at the axle. It must be reiterated - the theory of spontaneous fracture is, as best as I can interpret, driven by stresses that cannot be, or thus far have not been, calculated or illustrated in any scientifically coherent means. The rear wheel axle is a closed system, any-and-all forces and stresses are calculable, yet they have not been. If there was no handling issue, there was no misalignment issue. The skid mark was a result of losing control and sliding into the barricade - which caused all damage to the motorcycle. [91] Cross-examination of Dr. Cepuṧ was extensive. He was not shaken on his opinions critical of Dr. Toor. He was unshaken in his view that there was no objective or scientific way, based on the available evidence, to differentiate between pre-crash and post-crash damage to the Motorcycle. He was similarly unmoved from his opinion that there was no support for the theory that the rear wheel of the Motorcycle was misaligned prior to the accident leading to the eventual progressive breakdown of the axle causing the crash. Dr. Cepuṧ steadfastly maintained that he could not see how Dr. Toor could possibly

identify pre-existing damage to the rear fork arm, the rear fork drop out and the adjuster nut, ultimately leading to the accident. [92] Where Dr. Cepuṧ was shaken, however, was on the strength of his opinion on the "slippery tire", a topic that dominated much of the cross-examination. [93] Dr. Cepuṧ was challenged on his sources for this aspect of his opinion. He admitted that four of the "authorities" in support of his opinion about the "slippery tire" were websites that he located as a result of a Google search and that he did not know anything about the authors of two of those websites. He also admitted that he did not remember referring to Dunlop's (the maker of the Motorcycle tire at issue in this case) website for information about the break-in period for Dunlop tires. [94] Dr. Cepuṧ also acknowledged that the 1977 Marshall Study cited in his report was about testing for the purpose of isolating certain variables for future testing. Other than its observation that the effect from the break-in period is likely due to the tire structure, not wear on the tire, it had little relevance to breaking in tires in the real world or the distance that tires needed to travel to be safely broken in. He also conceded that the second report he cited did little more than paraphrase and perhaps provide some commentary or insights on the 1977 Marshall study. Dr. Cepuṧ also agreed that the

1981 Pottinger study he cited was about tire age and he had no reason to believe tire age had any relevance to this case. He also agreed that he did not know the type of rubber the Motorcycle tires were made out of, that he did not test the surface of the tire for any slippery material or residue and did not know that the Motorcycle tires were bias ply construction. He did not find this out, even though one of the main points of his only authoritative citation was that the changes in the internal structure or carcass of the tire is the source of the break-in effect. [95] Although Dr. Cepuṧ made reference to the release of parting agents as a cause of the "slippery tire" phenomena, during cross-examination he eventually appeared to concede that this explanation was a "wives tale". [96] Like Dr. Toor, Dr. Cepuṧ acknowledged that he did not do a formal accident reconstruction analysis of the crash site.

POSITION OF THE PARTIES [97] The plaintiff contends the defendant is liable in both contract and negligence. [98] With respect to breach of contract, the plaintiff argues that it was an implied term of the contract between the plaintiff and defendant that the defendant perform the work on the Motorcycle properly and safely, and that the Motorcycle be inspected for any hazards or imminent safety concerns during the course of the repair work. The plaintiff argues that if not proven by the evidence of Dr. Toor in consideration of the whole of the evidence, whatever the precise cause of the wheel failure that led to the crash, it can be inferred from the circumstances of the crash that it was as a result of the defendant's breach of that implied term. [99] With respect to his negligence claim, the plaintiff contends that the defendant's breach of the standard of care owed to him and causation, if not proven by the evidence of Dr. Toor in consideration of the whole of the evidence, can at the very least be inferred in a case like this where, through no fault of the plaintiff, the subject matter of the negligence is badly damaged or destroyed such that it is no longer possible to prove the precise breach of the standard of care and causal mechanism. The plaintiff argues the only explanation for the crash is mechanical failure that was either caused or should have been identified and

prevented by the defendant. He argues that the defendant's proposed theory of a "slippery tire", road conditions and/or driver error as causes of the accident do not accord with common sense, nor do they accord with the evidence that I am urged to accept. In all of the circumstances, the plaintiff asks the court to draw an inference of liability and causation in this case. [100] The defendant agrees that it owed the plaintiff a duty of care in the circumstances, but denies breaching that duty or causing damage in the ways alleged by the plaintiff, or at all. [101] The defendant urges me to reject Dr. Toor's opinions and find that the plaintiff has failed to establish even a prima facie case of negligence or breach of contract. Although it is not incumbent upon the defendant to proffer an alternative theory for what caused the crash, it says that if a prima facie case could be found, it is negated by a reasonable, alternative possibility explaining the accident that does not involve the defendant's negligence.

LEGAL PRINCIPLES [102] To reiterate, the plaintiff takes the position it has proven, on a balance of probabilities, breach of the standard of care and causation (or breach of contract) on the evidence it has tendered, or has at least made a prima face case of negligence that has not been negated by the defendant, such that negligence and causation can be inferred. The parties focussed much of their submissions on the latter of these positions. [103] Both parties referred to the legal principles outlined in Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R.

424. In that case, a car left the roadway resulting in the death of the plaintiff's husband. There were no witnesses to the accident and no one knew precisely how it happened. Weather had been bad the weekend the plaintiff's husband and the driver of the vehicle went missing, with heavy rain, washouts and heavy winds. Police investigators testified at trial about a swale in the highway where the vehicle was believed to have left the road. Given the amount of rain, it was believed that rain was likely to have collected in this swale. One officer opined at trial that if the vehicle had driven straight through the water-filled swale, loss of control was unlikely, but if the driver had to suddenly turn the wheel, the vehicle might hydroplane, particularly if it had worn tires. There was some evidence that the two front tires of the vehicles showed "excessive wear". The officer also testified that certain damage to the tire and rim of the vehicle was consistent with the tire hitting a rock or other solid object on the road. [104] The trial judge found that negligence by the driver had not been proven. She rejected the contention that the fact the vehicle left the highway was prima facie evidence of the driver's negligence, but even if it were, the defendant had succeeded in producing several explanations for the accident that were equally consistent with no negligence. The action was dismissed. [105] The trial decision was upheld on appeal. In reasons indexed at (1996) 22 B.C.L.R. (3d) 371 (B.C.C.A.). Gibbs J.A., for the majority, found that it is "possible to speculate but speculation does not discharge the burden of proof on a plaintiff": p.

376. Noting the absence of any proven facts from which an inference pointing to negligence could be drawn, the Court upheld the trial judge's decision to dismiss the action. [106] At the Supreme Court of Canada, Major J., writing for the Court, dismissed the appeal. In so doing, he addressed the value of the maxim res ipsa loquitur and ultimately concluded that it would be best to treat the maxim as "expired and no longer used as a separate component in negligence actions": p.

435. Finding it more "confusing than helpful" in its application and "nothing more than an attempt to deal with circumstantial evidence", Major J. held that it is better to just: [w]eigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed [p. 435]. [107] Applying these principles, the Court framed the task of the trial judge in this way: In this appeal, the trial judge had to consider whether there was direct evidence from which the cause of the accident could be determined, or, failing that, whether there was circumstantial evidence from which it could be inferred that the accident was caused by negligence attributable to Loewen [p. 435]. [108] Major J. specifically rejected the argument that an inference of negligence should be drawn whenever a vehicle leaves the roadway in a single-vehicle accident holding that: The appellant submitted that an inference of negligence should be drawn whenever a vehicle leaves the roadway in a single-vehicle accident. This bald proposition ignores the fact that whether an inference of negligence can be drawn is highly dependent upon the circumstances of each case: see Gauthier & Co., supra, at p.

150. The position advanced by the appellant would virtually subject the defendant to strict liability in cases such as the present one [p. 437]. [109] The parties have referred me to other cases, some of which I will address in the analysis portion of these reasons.

ANALYSIS [110] The plaintiff bears the burden of proof. In order to assess the reliability of Dr. Toor's opinion upon which the plaintiff relies, I must first address the evidence of Dr. Cepuṧ. [111] The plaintiff submits that Dr. Cepuṧ 'opinions, particularly in respect of the "slippery tire" theory, were so undermined and exposed as unreliable in cross-examination that the court should give no weight to any of his opinions. The plaintiff also emphasizes that when challenged on a number of points not related to the "slippery tire" theory, but related to other parts of his expert opinion, Dr. Cepuṧ improperly "retreated to the position that because of his expertise he just knows the answer or that he could calculate something but simply did not" (paragraph 39 of the plaintiff's written submissions). Overall, the plaintiff urges me to reject all aspects of Dr. Cepuṧ' opinions. [112] Dr. Cepuṧ' evidence was two-fold: (1) to critically analyze Dr. Toor's findings and opinions; and (2) to provide an opinion about the cause of the accident. One aspect of his opinion regarding the cause of the accident was that there was "overwhelming evidence" that the slippery new tire on the Motorcycle was part of the crash. In this area of his evidence, I agree with the plaintiff that cross-examination revealed that some of the authorities supporting the strength of this theory were not reliable

or suitable. This does undermine the reliability of the strength of his opinion that there was "overwhelming evidence" that a slippery tire was part of the crash. [113] However, while Dr. Cepuṧ' definitive view about the overwhelming nature of the evidence in support of the "slippery tire" was undermined, I find the deficiencies in this area were not such that his credibility was undermined or the balance of his evidence negatively impacted. I find the balance of his evidence well supported. [114] Dr. Cepuṧ' opinions critically analyzing Dr. Toor's findings and opinions were well founded, explained thoroughly and not undermined in cross-examination. His opinions accord with common sense and logic and are well within his areas of expertise. I accept his evidence, other than his opinion about the strength of the "slippery tire" being part of the crash. [115] I find I cannot rely upon Dr. Toor's opinion about the likely cause of the crash. His opinion rests on the legitimacy of his first conclusion - the pre-existing right rear fork deformation. This is a necessary pre-condition for Dr. Toor's entire theory and is a finding that is not tenable on the evidence. [116] First, as Dr. Cepuṧ observes, Dr. Toor fails to explain how the left side of the fork was bent or deformed in the same direction as the right and how only one of these pre-dates the crash. [117] Second, the deformation

Dr. Toor says pre-existed the accident that led to the other difficulties causing the crash are, even to the untrained eye, very noticeable defects. [118] I accept Mr. Olsen's evidence. There is no challenge to his credibility. His pre-trial cross-examination assists me in assessing the reliability of his evidence and I find it to be reliable. In answer to Dr. Toor's opinions, he deposed: 18. I see at p. 6 of his report Dr. Toor writes that at the time of the accident the motorcycle was ridden 59 km on the new tire that I put on it. In my experience a new tire can be very slippery at first. It needs to be driven at least 100 km before it loses the slipperiness.

19. I see at p. 7 of his report that Dr. Toor writes that "The deformed rear right fork arm likely resulted in misalignment of the rear wheel The deformed right arm of the rear fork also would have misaligned the right adjustment screw seating in the right axle collar and proper seating of the rear right axle collar against the fork arm. The misalignment likely resulted in the angled seating of the adjustment screw in the collar alignment slot. It is also likely that as the alignment screw was tightened, the misalignment and the corresponding adjustment resulted in buildup of lateral forces in the alignment bolt " 20. I would have easily seen a deformed rear right fork arm and a misaligned rear wheel. Even if I did not notice it right away I would have noticed it when I removed and tried to re-install the rear wheel on a deformed fork. While I would have easily noticed the problem I also note the following. I would not have been able to properly fit the adjustment screw into the axle collar if the rear right fork arm had been deformed. I would also never try to adjust the adjustment bolt when the axle is already tightened. There is no way to do this.

21. I would also have noticed a misaligned adjustment screw seating in the axle collar, improper seating of the rear right axle collar against the fork arm, and angled seating of an adjustment screw in the collar alignment slot. I would have worked on these very parts of the Motorcycle when I replaced the rear tire. I would have found these very obvious problems to be serious if they had existed when I worked on the Motorcycle. I would not have put the wheel back on if the Motorcycle had a deformed fork arm and all the other problems that Dr. Toor mentioned.

22. Much more work would have been needed on the Motorcycle if it had a deformed rear right fork arm. I would have written the problems down on the Service Order Worksheet (Exhibit B). I would have told the owner that the further work was needed.

23. I also see at p. 8 of his report Dr. Toor states that the rear tire was replaced "after only 8076 km". In my experience as a motorcycle technician, this is a normal lifespan for a motorcycle tire. I have switched out many tires worn down after even less than 8076 km. Rear tires wear down quicker than front tires. [119] In cross-examination, Mr. Olsen was consistent and provided explanations that accord with common sense. He conceded memory frailties, did not exaggerate and was forthright. [120] Mr. Olsen is an experienced technician and would have easily noticed such obvious and serious problems. If, for some reason, he failed to notice them, he would not have been physically able to do the repair job he did. Had there been such a deformation, Mr. Olsen would have followed his usual practice, noted the problems and advised the plaintiff. [121] Third, the Motorcycle handled normally before the accident, which is inconsistent with the pre-existing deformation notion. [122] Mr. Olsen took the Motorcycle on a three-kilometre test drive after he finished the repairs, in accordance with his usual practice, and noticed no problems. Under cross-examination, he explained the test drive route. The route is a road that is "off-set away from everything", with no posted speed limit. He takes the vehicles he test drives up to speeds of 90 and to 100 kilometres per hour. The road has "one

mild corner", a left turn, a sharp corner and a straight stretch. It is "mostly flat", with a small hill just before the main road. Mr. Olsen explained what he looks for on such a test drive: Q So how would you notice a problem on the test drive? What would you be noticing for - looking for? A Well, we test the brakes and everything. So you test for pulsations in the brakes. You test for any shaking while you're riding, things like that, and just abnormal things that you might feel. If anything was, say, out of alignment, the bike would be pulling in either direction. Things like that on a motorcycle with only two wheels are very noticeable. And it doesn't matter what speed you're going, you're on two wheels so [123] In re-examination, Mr. Olsen explained his reference to checking to see if a vehicle is "out of alignment" on a test drive. He testified: Q what do you mean by misalignment - or "out of alignment," you said. A The rear wheel alignment, if it is off, the tire will be pointed obviously a different direction than the rest of the motorcycle, so in turn, driving straight down the road, the bike is going to pull whichever direction the tire is pointed. Q What's your common practice if something like that - if you notice something like that during a test drive? A You ride the motorcycle back to the shop, put it up on the bench, and check for alignment and check for

anything else that might cause something like that. [124] It was not only Mr. Olsen who did not note any alignment or other problems after the repairs and before the accident. The plaintiff, a very experienced motorcycle rider, also noticed no such problems. He gave evidence at his examination for discovery that when he picked up the Motorcycle from the defendant's repair shop and then operated it for 15 to 20 minutes before the accident, the Motorcycle "felt great". [125] The deformation and associated cracks that Dr. Toor points to as pre-dating the crash are very noticeable. I prefer Dr. Cepuṧ' opinion that the: [d]egree of misalignment required to make any calculable difference in the stress experienced by the axle would need to be so egregious and extreme that it would likely cause the rear tire to rub the rear fork or swing arm. More importantly, the motorcycle handling would be noticeably abnormal, difficult to control and track unpredictably. It would not likely be reported as "feeling great". [126] Fourth, the right rear fork arm damage observed by both experts cannot be isolated from the other post-crash damage to the Motorcycle. Dr. Toor selects this one item of damage from a severely damaged motorcycle and simply concludes it pre-existed the accident without explaining why. Dr. Cepuṧ' criticism of this is convincing. He explains, in detail, why it is impossible to

isolate this damage from pre-existing damage. His conclusion that "all damage is consistent with traumatic impact associated with crashing - including the fractured axle and adjuster" and that "there was no damage to the rear end of the motorcycle prior to the accident" (page 22 of his first report), is well grounded in his analysis and accords with common sense. Dr. Toor does not adequately address this in his rebuttal report. [127] Fifth, given the significant nature of the defect Dr. Toor asserts pre-existed the crash, there would have to be some evidence of prior trauma, of which there is none. As well, I accept Dr. Cepuṧ' explanation that given the significant pre-existing forces capable of bending drop outs would have required significant lateral loading, these forces would have likely destroyed the Motorcycle, rendering it inoperable and "unavailable for this accident". [128] Dr. Cepuṧ' opinion finds support in Mr. Olsen's evidence. Mr. Olsen has significant experience in repairing motorcycles. During his cross-examination, he noted that rear fork arms are not generally damaged unless in an accident. There is no evidence of any other accident with the Motorcycle that may have caused the rear fork arm damage. [129] Overall, Dr. Toor's opinion involves a reasoning process that seems circular. His opinion depends upon pre-existing damage that is, in reality, explained by

the accident. The forces required to deform the rear fork, the deformation that Dr. Toor says pre-existed the accident, are precisely the type of forces that occurred in the crash itself, forces that rendered the Motorcycle unrideable. [130] Overall, based on the evidence I accept, considered as a whole, I find I cannot rely upon Dr. Toor's opinion on causation as it is unsupportable on the evidence. [131] The plaintiff has also, separately of the pre-existing deformed fork theory, suggested that the defendant was negligent in installing the rear axle in the wrong way - from left to right, instead of from right to left, as indicated in the manual. However, Dr. Toor did not opine either in his reports that the accident was caused, or could have been caused, by this method of installing the rear axle. Dr. Cepuṧ did address this issue in cross-examination and opined that installing the rear axle from left to right, instead of from right to left, would not have made any difference and would not have caused the axle to fail. I accept this unchallenged opinion. [132] As I find I am unable to rely on the opinion offered by Dr. Toor, the plaintiff then points to the plaintiff's substantial experience as a motorcyclist, combined with the absence of any other reason for the crash, as sufficient for the court to draw an inference that the accident was caused by the negligence of the

defendant's repair technician. The plaintiff also relies on the close temporal proximity between the work performed by the defendant and the accident. The crash occurred 59 kilometres away from the repair shop, on the day following the repairs done by the defendant. However, I am of the view that this submission "comes perilously close to an application of res ipsa loquitur" in a manner similar to what was criticised by Newbury J.A. in Haynes v. Haynes, 2017 BCCA 131 at para. 22. [133] The plaintiff relies on Miller (Next friend of) v. Sinclair, [1980] O.J. No. 209 for the proposition that negligence and causation can be inferred in a case where the subject matter of negligence, through no fault of the plaintiff, is badly damaged or destroyed and it is no longer possible to prove the precise breach of the standard of care and causal mechanism. [134] Miller is an Ontario Superior Court decision decided before Fontaine. In any event, Miller does not seem to precisely stand for the proposition for which the plaintiff uses it. In Miller, negligence was alleged when a boy fell off a horse and the horse was found shortly after without a stirrup. The plaintiff alleged that the stirrup was not properly attached, while the defendant claimed the stirrup came loose only after the boy had already fallen, through his own negligence. Lerner J. stated at para. 12 that the maxim of res ipsa

loquitur was applicable and that the maxim: [a]pplies where proof of the accident itself affords some evidence that what happened did in fact arise through the failure to discharge the obligation of proper care. [135] The decision does not appear to stand for the specific proposition that negligence and causation can be inferred where the subject matter of negligence has been destroyed through no fault of the plaintiff. I also question the precedential value of this decision given the subsequent decision in Fontaine. [136] The plaintiff similarly cites Clements v. Clements, 2012 SCC 32 for the same proposition. Clements is largely concerned with clarifying the material contribution to risk doctrine in tort law, which the plaintiff indicated is not relevant to this case. In Clements, Chief Justice McLachlin, writing for the majority, also held that the "but for" causation test should be applied in a robust common sense fashion: para.

9. Again, the Court in Clements does not specifically state that negligence and causation can be inferred where the subject matter of negligence has been destroyed through no fault of the plaintiff, as the plaintiff in the case at bar asserts. To the contrary, in holding that the material contribution to risk doctrine cannot simply be applied where it would otherwise be "impossible" for the plaintiff to prove her case using the "but for" test, the Court reiterated that proof of causation continues to underpin tort law: Clements at para. 37. [137] As noted in Fontaine, if the plaintiff establishes on a balance of probabilities a prima facie case of negligence against the defendant, then the defendant must present evidence negating the prima facie case. In the case before me, I conclude that the plaintiff has not established a prima facie case of negligence, so there is no requirement for the defence to negate the case. [138] The plaintiff's prima facie case relies on the expert evidence of Dr. Toor and/or the circumstantial evidence relating to the plaintiff's experience (which includes his knowledge that he should be careful when breaking in a new tire), the otherwise unexplained cause of the crash in good road and weather conditions, and the close proximity in time and distance between the repair work and the crash. I have already concluded that I cannot rely upon Dr. Toor's

opinion evidence with respect to the likely cause of the crash. I also conclude the plaintiff's reliance on the temporal proximity between the repair work and the accident essentially amounts to reliance on res ipsa loquitur, which is no longer the law. When I weigh all of the evidence, I simply cannot conclude the plaintiff has established, on a balance of probabilities, a prima facie case. [139] If it could be said that a prima facie case of negligence has been made out, I would conclude the defence has provided sufficient evidence to negate this case. In Haynes, at para. 23, the Court explained that in order to overcome a prima facie inference of negligence, a defendant's explanation must be reasonable, and not just speculative. The strength of the explanation required will vary in accordance with the strength of the inference of negligence sought to be drawn by the plaintiff. [140] Although the strength of the opinion of Dr. Cepuṧ regarding the "slippery tire" was effectively undermined, the plaintiff himself admitted the Motorcycle was on a new tire and that it could be slippery. Shortly after the crash, he offered the "slippery tire" as part of his explanation to emergency personnel. At his examination for discovery, he testified that the rear tire was new and that one has to "put at least 50 to 60 kilometres on" before doing "anything stupid" because "all the oil has

come out of the rear tire and makes it very slippery and very, very dangerous, so you have to be very careful". When asked about his recollection of telling the paramedics about the slippery rear tire, he testified: No, I remember - because what they asked me, he says, you know, what happened? So I said, well, I'm breaking in an engine and breaking in a new tire. And I says, you know, maybe the tire was a little bit slick or something, but that wouldn't - it wouldn't have happened if the tire was slick or whatever and just - I don't know how to explain it, but it's [141] The defendant says it is a reasonable explanation that the plaintiff was simply unable to negotiate the turn in the road due to his speed, which the plaintiff admitted could have been as high as 100 kilometres. On a new tire, that was prone to be slippery, the Motorcycle went into a yaw, slid off the road, over dirt and gravel until the Motorcycle contacted heavily with the concrete barrier. [142] Even if I were able to draw an inference of negligence in these circumstances, it would be modest. The above explanation offered by the defendant is well-grounded in the evidence and is adequate to neutralize whatever inference the circumstantial evidence could be said to be permitted to be drawn. [143] In the end, I conclude the plaintiff cannot prove that, on a balance of probabilities, the crash occurred due to any fault resting upon the defendant. The action is dismissed, with costs to the defendant. [144] If the parties wish to speak to costs, written submissions may be submitted on a timeline agreed by counsel, but no later than April 30, 2018. All that remains is to thank both counsel for their excellent advocacy. "S.A. Donegan J." DONEGAN J.