Thompson v. Soundy

2003BCCA0307 COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Thompson v. Soundy, 2003 BCCA 307 Date: 20030516 Docket: CA029796 Between: Denise Gail Thompson Appellant (Plaintiff) And Valerie Dianne Soundy Respondent (Defendant) Before: The Honourable Madam Justice Ryan The Honourable Mr. Justice Braidwood The Honourable Mr. Justice Mackenzie Oral Reasons for Judgment R. McNeney Counsel for the Appellant M. Soronow Counsel for the Respondent Place and Date: Vancouver, British Columbia May 16, 2003 [1] RYAN, J.A.: On May 7, 2002, Mr. Justice Holmes dismissed the appellant's claim for damages for negligent interference with the control and operation by the appellant of her motorcycle which alleged to have caused or contributed to an accident April 17, 1999 near the junction of the Trans Canada Highway and Highway 97B near Salmon Arm. The appellant was riding her motorcycle when she collided head-on with a motor vehicle, driven by Ms. Lepp while negotiating a right hand curved entrance onto Highway 97B. The defendant/respondent was riding the motorcycle as a passenger. [2] The appellant's case at trial was that the respondent, while riding on the back of the appellant's motorcycle shifted her position on the seat and behaved in such a way which caused the appellant to lose control of the motorcycle. [3] The appellant says that the trial judge erred in his treatment, understanding and assessment of the evidence; that many of his findings of fact are unsupported by the evidence; and that he erred in his application of the burden of proof with respect to expert accident reconstruction testimony. [4] The appellant has properly set out the standard and scope of appellate review as discussed recently by the Supreme Court of Canada in Housen v. Nikolaisen 2002 SCC 33. Counsel has also taken us through the transcript setting out the out the errors he says the trial judge made in assessing the evidence of number of witnesses including the appellant's accident reconstruction expert. After reviewing the evidence of most of the witnesses at trial the trial judge said this: The onus of proof is upon the plaintiff to prove on a balance of probabilities that the defendant negligently shifted her weight or position on the motorcycle and that caused or contributed to the collision with the Lepp vehicle. I find that onus has not been met. [5] We are not persuaded that in reaching the conclusions that he did the trial judge committed any error which would permit this Court to intervene. In spite of the very able submissions of Mr. McNeney, I would dismiss the appeal. [6] BRAIDWOOD, J.A.: I agree. [7] MACKENZIE, J.A.: I agree. [8] RYAN, J.A.: The appeal is dismissed. "The Honourable Madam Justice Ryan"