Strul v. Mondares

2015 BCSC 284 Strul v. Mondares

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Strul v. Mondares, 2015 BCSC 284 Date: 20150122 Docket: M103643 Registry: Vancouver Between: Yakov Strul aka Jacob Strul Plaintiff And Amor Mondares, Surdell-Kennedy Taxi Ltd., and Egor Bibica Defendants - and - Docket: M105902 Registry: Vancouver Between: Scott Blackwood and Heather Price Plaintiffs And Tiffany Mondares-Riggs, Debra Mondares, Amor Mondares, Yakov Strul, Surdell-Kennedy Taxi Ltd., Igor Bibica, John Doe and Jane Doe Defendants - and - Docket: M130549 Registry: New Westminster Between: Igor Bibica Plaintiff And Tiffany Mondares-Riggs, Debra Mondares, Amor Mondares and Yakov Strul Defendants Corrected Judgment: the text of this judgment was corrected at Page 2 on February 4, 2016 Before: The Honourable Madam Justice Fenlon Oral Reasons for Judgment Counsel for the Plaintiff Y. Strul: J. Cameron Counsel for T. Mondares-Riggs: C. Tham Counsel for D. Mondares: J. Bradbury Counsel for S. Blackwood and H. Price: K. Johnson K. Koller Counsel for E. Bibica: S. Matheos Counsel for Insurance Corporation of British Columbia and Y. Strul as Defendant: L. McCreery M. Pitzman, A/S Place and Date of Hearing: Vancouver, B.C. October 22-23, 2014 Place and Date of Judgment: Vancouver, B.C. January 22, 2015 [1] On December 5, 2008, six parties in three cars were involved in an accident at the intersection of West 33rd Avenue and

Granville Street in Vancouver. The accident led to three separate actions in which various passengers and drivers sued the other drivers and owners of the three vehicles. [2] The three actions are being heard together in two stages, a two‑day summary trial before me on the issue of liability, and a full trial set for three weeks in March 2015 on the issue of damages. All parties agree that the issue of liability is suitable for resolution by way of summary trial. I agree with that assessment. [3] At the hearing a number of objections to affidavits were made, including the affidavit of Dr. Christine Bradbury, sworn August 10, 2014, and the affidavit of Scott Blackwood, sworn May 30, 2014. There may have been others. I made some rulings as we went along, but it was not entirely clear from the notes I had whether I had formally ruled on all of the objections. For clarity I confirm that I admitted all of those affidavits into evidence and I have considered them. [4] I turn now to the accident. I make the following findings of fact, which in any event were not generally in dispute. The intersection of 33rd Avenue and Granville Street is controlled by traffic lights. Granville Street runs north/south. 33rd Avenue runs east/west. There are three northbound lanes on Granville Street on both sides of the intersection. There is no dedicated left‑turn lane in either direction. There is

one eastbound and one westbound lane on 33rd Avenue. [5] At the time of the accident Scott Blackwood and Heather Price were passengers in a 2005 Toyota Corolla, a taxi owned by Surdell‑Kennedy Taxi Ltd. and driven by Egor Bibica. They were northbound in the curb lane on Granville Street. All actions against Surdell‑Kennedy Taxi Ltd. and Bibica arising from the accident have been discontinued. [6] Yakov Strul was the owner and driver of a 2002 Volvo S60 travelling northbound on Granville Street in the middle of three lanes. Traffic was stopped in the northbound lane to the left of Mr. Strul waiting to turn left at the intersection to proceed west on 33rd Avenue. Tiffany Mondares‑Riggs was driving a 2004 Infinity FX35 SUV owned by her mother, Debra Mondares. All actions against Amor Mondares arising from the accident have been dismissed on the basis that he was erroneously named as a registered co‑owner of the SUV. [7] Ms. Mondares‑Riggs was travelling southbound on Granville Street. Her mother was in the front passenger seat and her who children, then aged six and eight, were in the rear seat. Ms. Mondares‑Riggs intended to turn left at the intersection to proceed east on 33rd Avenue. She was the first car in a line of cars waiting to turn left. Ms. Mondares‑Riggs had waited through a few cycles of the traffic lights. It was 2:00 p.m. on Friday and traffic on Granville Street

was heavy. It was the first time she had driven her mother's SUV. There was a taller vehicle across the intersection from the Mondares‑Riggs vehicle also waiting to turn left to proceed west on 33rd Avenue. That vehicle blocked Ms. Mondares‑Riggs' view of oncoming traffic in the other two northbound lanes. [8] Ms. Mondares‑Riggs turned left in front of Mr. Strul's vehicle. The front of his car struck the front passenger door of the SUV in a T‑bone collision. The force of that collision pushed Mr. Strul's vehicle into the path of the taxi being driven by Mr. Bibica in the southbound curb lane to Mr. Strul's right. The taxi struck Mr. Strul's car on the passenger side. [9] A witness, Erin Rurak, was the first car at the stop line on 33rd Avenue on the east side of the intersection. [10] Ms. Mondares‑Riggs admits that she is responsible for the accident but she and the other parties argue that Mr. Strul shares responsibility for that accident. The issue before me is whether that is so and if so, to what degree. [11] The starting point in assessing the question is s. 174 of the Motor Vehicle Act, R.S.B.C. 1996, c.

318. That section imposes a statutory duty on the left turning driver to yield to traffic approaching from the opposite direction which is so close as to constitute an immediate hazard: 174 When a vehicle is in an intersection and its driver intends to turn left, the driver must yield the right of way to traffic approaching from the opposite direction that is in the intersection or so close as to constitute an immediate hazard, but having yielded and given a signal as required by sections 171 and 172, the driver may turn the vehicle to the left, and traffic approaching the intersection from the opposite direction must yield the right of way to the vehicle making the left turn. [12] An immediate hazard is one that would require an oncoming driver to need to take sudden or violent action to avoid threat of collision: Raie v. Thorpe, [1963] B.C.J. No. 14 (C.A.). [13] I find that the Strul vehicle was an immediate hazard when Ms. Mondares‑Riggs started her turn. The evidence of Mr. Strul, of the taxi driver Egor Bibica, his passenger Mr. Blackwood, and the third party witness Erin Rurak all put Mr. Strul's Volvo within one to three car lengths of the SUV when it started its left turn. [14] Ms. Rurak described thinking as Ms. Mondares‑Riggs started her turn, "what was she thinking?" Tiffany Mondares‑Riggs' mother yelled, "Oh my god", as they started their turn because she realized

they were going to be hit. [15] The law is clear that the servient left‑turning vehicle should not make a left turn an approaching straight‑through dominant driver is an immediate hazard. As Ms. Mondares‑Riggs acknowledges she therefore bears some responsibility for the accident. That is not the end of the inquiry, however, because the dominant driver may also be found to be at fault if he should have avoided the accident and failed to do so. That is so because at common law all drivers have a duty of care to avoid a collision that can reasonably be foreseen and avoided: Atchison v. Kummetz (1995), 14 M.V.R. (2d) 271 (B.C.C.A.) quoted in Rothenbusch v. Van Boeyen, 2010 BCSC 1518. [16] To paraphrase Mr. Justice Cartwright in Walker v. Brownlee, [1952] S.C.J. No. 56 at para. 49, the dominant driver may be found contributorily negligent if at the point he became aware or should have become aware of the left turning servient driver's failure to yield the right‑of‑way he could have avoided the accident. [17] The onus is on the servient driver to establish that the dominant driver was negligent. The standard to be applied is that of a reasonable, careful and skilful driver. [18] Have Ms. Mondares‑Riggs and the other parties established that Mr. Strul could have avoided the collision if he was driving in a reasonable manner? The other parties submit that Mr. Strul was not driving in a

reasonable manner for three related reasons. First, because he should have exercised caution, slowing down as he approached the intersection when he knew there could be left‑turning vehicles waiting to turn across his path of travel and when his view of those vehicles was obstructed by left‑turning vehicles in the lane beside him. Second, because he was travelling over the speed limit. Third, because he was accelerating as he moved into the intersection and moving faster than the traffic beside him. [19] I will now consider these arguments. First, did Mr. Strul have an obligation to exercise caution and slow down as he moved into the intersection because his view of left‑turning vehicles was blocked? I conclude that the answer to that question is no. In Pacheco (Guardian ad litem of) v. Robinson (1993), 75 B.C.L.R. (2d) 273 (C.A.), the Court said: In my opinion, a driver who wishes to make a left hand turn at an intersection has an obligation not to proceed unless it can be done safely. Where each party's vision of the other is blocked by traffic, the dominant driver who is proceeding through the intersection is generally entitled to continue and the servient left‑turning driver must yield the right of way. The existence of a left‑turning vehicle does not raise a presumption that something unexpected might happen and cast a duty on the dominant driver to take extra care. Where

the defendant, as here, has totally failed to determine whether a turn can be made safely, the defendant should be held 100 per cent at fault for a collision which occurs. [20] Counsel for one or more of the other parties argued that Pacheco has been overtaken by more recent case law, but I do not find that to be so. Madam Justice Loo followed Pacheco in Cooper v. Garrett, 2009 BCSC 35. More importantly, I am not aware of a decision by the Court of Appeal or the Supreme Court of Canada that overrules Pacheco. [21] To similar effect as Pacheco is Wong v. West, [1959] B.C.J. No. 45 (C.A.). In that case the trial judge found the dominant driver 40% at fault because in the trial judge's words (at para. 3): A prudent driver would have been careful not to pass a car [in the lane beside him to his left] unless he was certain that nothing was going to appear from behind it into his path. [22] The Court of Appeal disagreed, finding that the driver, having the green light and travelling on a six‑lane marked street, was entitled to proceed as he did and should not have been found negligent. The Court of Appeal held that the dominant driver owed no duty to traffic entering the intersection in disobedience to the lights beyond the duty that, if he saw such traffic, he ought to take reasonable steps to avoid a collision. [23] Wong v. West involved different facts because the servient vehicle

was moving into the intersection from a cross street on a red light, but the underlying principle applies. A dominant driver on a green light is entitled to proceed through and does not owe a duty of care to traffic entering the intersection in disobedience to the Motor Vehicle Act to take special care, beyond the duty that arises once he sees such traffic to take all reasonable steps to avoid a collision. [24] As the Supreme Court of Canada noted in Johnston National Storage Ltd. v. Mathieson, [1953] 2 D.L.R. 604 at 614, quoting a House of Lords decision: ... all traffic regulation has two main purposes, the first to insure safety and the second to promote the free circulation of traffic. To hold that the driver of the vehicle on a through highway who is proceeding on the right‑hand side of the centre line of the road and at a reasonable rate of speed must, on approaching an intersection where his view to the left is obstructed, proceed on the theory that a driver may emerge from his left into his path in total disregard of the statutory rule would tend towards the paralysis of traffic rather than to the promotion of its free circulation. [25] Insofar as Zaborniak v. Smerdal, 2014 BCSC 1367 and Itterman v. Saris, 1974 CarswellBC 195 contradict Pacheco, I would decline to follow them. I note, however, that the facts of both cases are distinguishable from the case before me. In

Itterman a large semi-trailer obscured the dominant driver's sight line, and in Zaborniak, a full‑sized bus did the same. In the case before me there were no buses or tractor trailers, but rather vehicles of ordinary size waiting to turn left. [26] In summary on this point, I conclude that Mr. Strul, in the circumstances of this case with a solid green light did not owe a duty of care to slow down and take extra care so that he could stop in time should someone suddenly turn left in front of him. [27] I come now to the second and third submissions about speed and acceleration. In considering whether Mr. Strul contributed to the cause of the accident because he was exceeding the speed limit there are two questions to be addressed. First, have the other parties proved that Mr. Strul was speeding? And second, if so, did his speed contribute to the accident? [28] Mr. Strul said he was travelling at about 50 kilometres per hour northbound. He said he had slowed down initially as he came up beside the line of northbound cars to his left because he thought someone might move over into his lane to avoid sitting behind those cars waiting to turn. Mr. Bibica said on his second examination for discovery in June 2014 that he was going 50 km/h and Mr. Strul "flew past him." [29] The other parties argue that it is evident that Mr. Strul was speeding, because in order to pass Mr. Bibica who

was going 50 km/h, Mr. Strul had to be going more than 50 km/h. However, I do not find Mr. Bibica's evidence to be reliable. In his first examination for discovery in October 2012 Mr. Bibica could not estimate Mr. Strul's speed just before the accident. He was asked: Q How fast was Mr. Strul going at that point? A I do not know. Q How fast would you estimate it? A I can't do that. Q But he was passing you and you were going 50 to 52 kilometres an hour? A Something like that. [30] While I accept that Mr. Strul was passing the taxi as they were within two to three car lengths of the intersection, I find that was likely because Mr. Bibica was slowing down. At his first examination for discovery Mr. Bibica said (I am paraphrasing), that as he was approaching the intersection he was driving defensively, "So I was already on the brakes." [31] At his second examination for discovery closer to trial Mr. Bibica said he really meant he had taken his foot off the accelerator and was "Hovering over the brakes." In either case he would have been decelerating to some extent. [32] Mr. Blackwood, who was a passenger in the taxi, swore an affidavit in July 2014, close to six years after the accident, stating his best estimate of the taxi's speed was 60 to 70 km/h. By implication Mr. Strul's vehicle would have had to be travelling at least at that speed in order to pass the taxi. [33] I do not

find Mr. Blackwood's estimate persuasive or reliable for two reasons. First, Mr. Blackwood was a passenger in the taxi. He said he did not see the speedometer, and I find he would be in a poorer position than the driver to estimate speed. Second, Mr. Blackwood made no mention of the speed of the taxi or of Mr. Strul's vehicle at his examination for discovery or at any point closer to the accident. [34] Ms. Rurak was stopped on 33rd Avenue waiting for the light to change. While I accept, based in part on the affidavit filed by Dr. Bradbury, that Ms. Rurak's view of Granville Street would be restricted to perhaps two or three car lengths, she watched the traffic pass by in both directions and she said Mr. Strul was not speeding. That is some evidence that he was going about the speed of the other traffic on the road. [35] Taking the evidence as a whole, as I must, I find that the opposing parties have not proved that Mr. Strul was speeding. Furthermore, even if Mr. Strul was travelling at 60 to 70 kilometres per hour there is no evidence that his speed contributed to the accident. As other judges before me have observed, the speed of the dominant vehicle must be considered in the context of a particular accident, because the speed of a vehicle will always be a factor in the sense that it puts the vehicle at the scene at the wrong time. [36] For example, in this case if Mr. Strul

had been going 120 kilometres per hour he would have been through the intersection at the moment that Ms. Mondares‑Riggs began her turn. If he had been going 30 kilometres per hour since he turned onto Granville Street he would not have been anywhere near the intersection. [37] In short, speed as a factor must do more than place the driver in the intersection at the same time as the other vehicle. This is not a case in which the servient driver's decision to turn was affected by the dominant driver's speed, nor is it a case in which the dominant driver's speed prevented him from avoiding the collision once he saw the other driver start her turn. Let me consider each of these factors more closely. [38] This is not a case in which the servient driver saw the dominant driver approaching and estimated the size of the gap and her ability to make her turn through that gap, assuming that the other car was travelling at about the speed limit. Ms. Mondares‑Riggs did not see any vehicles approaching. Her vision was blocked by opposing left‑turning vehicles. She did not see Mr. Strul's vehicle at all until the moment of impact. The speed at which Mr. Strul was travelling and also whether he was accelerating as he approached the intersection thus could not affect Ms. Mondares‑Riggs' ability to judge when it was safe to make her turn. [39] As to Mr. Strul's ability to avoid the collision,

there was no evidence that Mr. Strul had been travelling more slowly he would, from the key point at which he saw the SUV turning in front of him, have been able to avoid the collision. Mr. Bibica and Mr. Blackwood both said the Strul vehicle was two to three car lengths from the crosswalk of the intersection when the SUV started its turn. They were in the curb lane so had a better angle of vision than Mr. Strul and could see the SUV before Mr. Strul could since he was travelling in the middle lane. [40] Mr. Blackwood said when the SUV first started its turn into the first northbound lane it was "a car length or two away from the Volvo," which he estimated to be 20 feet. Mr. Blackwood said by the time the SUV began to move into the centre lane in which the Strul vehicle was travelling there were 10 feet or less between the two cars. [41] There is no expert evidence in this case. There was no evidence at all to suggest that a car travelling at a speed of 50 kilometres per hour could stop within 20 feet of braking even without considering a driver's reaction time. To the contrary all of the witnesses who gave evidence on this point said there was nothing Mr. Strul could have done to avoid the collision. [42] I conclude, therefore, that it has not been proved that Mr. Strul's conduct contributed to the accident. Ms. Mondares‑Riggs turned left without any sense of what traffic was

approaching the intersection. No doubt she felt pressured to make her turn. She had been at the same spot as the light turned red and then green several times and there was a line of cars behind her. She had an obligation nonetheless to ensure it was safe to make her turn and she failed utterly to do so. [43] I find Ms. Mondares‑Riggs 100% liable for the accident of December 5, 2008. That finding, of course, applies to all three actions. [44] In terms of costs I would like to hear from counsel. Mr. Strul is certainly entitled to his costs in all three actions without duplication. In other words, not three full sets of costs, because the affidavits would have been used in all actions, but costs for whatever is unique to an action should be covered. [45] The other parties, having taken a position in opposition to Mr. Strul and having failed to succeed, it seems to me, should not be entitled to costs, but I will hear from counsel if there are any submissions. [46] MR. CAMERON: It sounds like your decision on those points on costs sound proper to me. Mr. Strul I suppose had myself making submissions, smaller submissions, and my friend [indiscernible] made submissions. So it seems to me on those two actions at least he should get his costs, but no duplication if there was any. Mine is a smaller part so [indiscernible] claim less because I kind of dove tailed to her submissions. [47]

THE COURT: Yes. My only concern is that the defendants should not have to pay more than the costs that would be allowed. In other words, they should not be paying for the same affidavit that was filed in all three actions. [48] MR. CAMERON: Of course. I agree with that. [49] THE COURT: All right. Thank you. Are there any further submissions? I take that to be no. Any questions or clarifications required? [50] MS. THAM: My Lady, sorry, some clarification. So who will be responsible for paying the costs of Strul? [51] THE COURT: Well, that is a good question. The parties are going to have to help me with that. I call Mr. Strul the plaintiff, the primary defendant clearly is Ms. Mondares‑Riggs. The other parties were interested in opposing -- I do not know why. Perhaps there were coverage issues, but that cannot inform my decision on liability. In any event, they have to bear some responsibility because each of them opposed and each of those responses or applications had to be responded to and dealt with by Mr. Strul. So counsel for Ms. Mondares‑Riggs perhaps should bear the brunt of the costs. I realize that all lead counsel are not here. Well, Ms. Tham, you are here for Ms. Mondares‑Riggs but we do not have lead counsel here arguing for all the other parties. [52] It occurred to me that Ms. Mondares‑Riggs should bear something like 70 to 75% of the costs, with the other parties

to share equally the remaining 30%. So again, I will hear submissions from you, but that seems to me to be fair. Costs are to some extent discretionary. Keeping in mind the purpose of costs, that seems to me to be the appropriate way to address it. [53] So if I look at the parties that we have here, Mr. Strul is the party entitled to costs. So we will set him aside for the moment. Ms. Mondares‑Riggs and Debra Riggs it seems to me should be dealt with together. Did Ms. Debra Mondares‑Riggs have separate counsel? [54] MR. CAMERON: Yes, My Lady. [55] THE COURT: Yes. [56] MR. CAMERON: Separate counsel. Just to clarify, they're the office of interest because they have their contest in the litigation in the States between ‑‑ [57] THE COURT: Yes, of course. So we have Mondares‑Riggs, we have Debra Mondares, we have Mr. Blackwood and Ms. Price, but they it seems to me should go as a unit. They had one counsel. And we have Mr. Bibica. So by my count, then, we have one, two, three, basically four defendants. [58] So if Ms. Mondares‑Riggs is bearing 70% of the costs, that would mean that each of the other parties would share 30%, which by my rough calculation is 7.5% each. [59] MR. CAMERON: Is there four total or ‑‑ is Mondares‑Riggs one of the four, because if it is four total, then she just ‑‑ [60] THE COURT: Oh, yes, it is three. It is 10% each. It is simple, thank you. That is quite

right. So it will be 10% for each of the others. [61] I do not hear any opposition from counsel here present, and I am also, having given this some thought in advance, satisfied that would be an appropriate way to resolve this rather complex situation at least on the issue of liability. Of course it has no bearing on what may happen at the other trial. So, having made my finding and my order on liability, I make the following order on costs: Mr. Strul is entitled to one full set of costs against Ms. Mondares‑Riggs as to 70%, Ms. Debra Mondares as to 10%, Mr. Blackwood and Heather Price collectively as to 10% and Mr. Bibica as to 10%. [62] MR. CAMERON: And, My Lady, just for clarification. So one [indiscernible] of costs I suppose in the main action and then on the sort of dovetail actions some reduced costs just to capture any additional work. [63] THE COURT: Yes. Now, what are you referring to as the "main action"? Is that the case in which Mr. Strul was the plaintiff? [64] MR. CAMERON: It seems to me that [indiscernible], the one she brought on ‑‑ [65] THE COURT: She bore that one ‑‑ [66] MR. CAMERON: ‑‑ the one she brought on as defendant was the ‑‑ kind of the main ‑‑ she got this whole thing started, to be fair to her. She ‑‑ so I would say that is the main one. And then the secondary one would be my action as plaintiff as ‑‑ Mr. Strul as plaintiff, which was a sort of

more kind of follow in her footsteps. And I suppose there is a third action by ‑‑ is there a third action? [67] UNIDENTIFIED MALE SPEAKER: There is ‑‑ [68] UNIDENTIFIED FEMALE SPEAKER: Yeah, actually, yeah. [69] UNIDENTIFIED MALE SPEAKER: ‑‑ [indiscernible] as well. [70] MR. CAMERON: Okay. Fair enough. [71] THE COURT: All right. What are you describing as the main action? [72] MR. CAMERON: It would be ... [73] THE COURT: I will need an action number. [74] UNIDENTIFIED MALE SPEAKER: Bibica versus Strul. [75] MR. CAMERON: Bibica versus Strul I think. [76] Do you know the action number [indiscernible]? I think ‑‑ [77] THE CLERK: Just give me a second. [78] UNIDENTIFIED MALE SPEAKER: We might have it here. [79] THE COURT: All right. [80] THE CLERK: It is M143328. [81] THE COURT: M143328. On my note that is Bibica versus Mondares‑Riggs and perhaps and Strul and others. [82] MR. CAMERON: Yes. [83] THE COURT: All right. So that, then, will be considered the main action. So my order should be amended to read that the plaintiff ‑‑ rather, Mr. Strul is entitled to his costs in that action, Bibica versus Mondares‑Riggs and Strul and others, which you have said is M143328, Madam Clerk? [84] THE CLERK: Yes. [85] THE COURT: All right. [86] MR. CAMERON: And then I would say on order sort of the secondary action where Mr. Strul was the plaintiff, in which I am counsel, which is Strul versus

Riggs and Mondares, some sort of just small additional amount, which would be very minor, because essentially I did a few extra submissions, as you may recall, and I did not really do much else other than that, a bit of case law, so just maybe some modest amount. [87] THE COURT: All right. And that is M103643? [88] MR. CAMERON: I believe so, yes. [89] THE CLERK: Yes. [90] THE COURT: So in Strul versus Mondares et al., M103643, Mr. Strul is entitled to his costs insofar as they do not duplicate the costs in the M143328 action. [91] Now, as to the Blackwood and Price and Mondares‑Riggs actions, there were no separate costs incurred by Mr. Strul? [92] MR. CAMERON: You know, to be ‑‑ let me ‑‑ other than filing I imagine a response to them, I do not think there had be any [indiscernible] separate. I mean, there is no point in duplicating it too much. I mean, we ‑‑ [93] THE COURT: All right. [94] MR. CAMERON: We had to respond to it. I mean, there might be some pro forma units for that, but I do not ‑‑ from my point of view I will not be seeking any. I do not know whether my ‑‑ [95] THE COURT: All right. Well, I think it is better to leave my original order. So we have the M143328 action as the main action in which Mr. Strul is entitled to all of his costs, and Mr. Strul is also entitled to costs in the other two actions insofar as they do not replicate the costs already claimed in the main action. [96] I hope you will be able to sort that out. If you cannot, you may come back before me at 9:00 a.m. I would ask you not to take advantage of that invitation lightly. [97] Thank you, counsel, for a well argued case. We will adjourn. The Honourable Madam Justice L.A. Fenlon