Zamora v. Zamora, 2011 ABQB 296

Court of Queen ’ s Bench of Alberta Citation: Zamora v. Zamora, 2011 ABQB 296 Date: 20110429 Docket: 0301 14540 Registry: Calgary Between: Mario Zamora and Her Majesty the Queen In Right of Alberta Plaintiffs - and - Maria D. Zamora Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice B.E. Romaine _______________________________________________________ [ 1 ] The Plaintiff Mario Zamora and the Defendant Maria Zamora were married, but had separated prior to the date of an incident that Mr. Zamora alleges occurred on September 25, 2001.

According to Mr. Zamora, Ms. Zamora had come to his residence on that day. Ms. Zamora sat in her car in front of his house and he leaned on the car and spoke with her through the open window of the passenger side of the vehicle. He accused her of stealing his mail, she became upset and started to drive away. He says that he fell to the ground and suffered injuries. [ 2 ] Mr. Zamora testified that, after he fell, Ms. Zamora got out of the car, approached him and asked if he was okay. He says he was trying to get up and told her to leave him alone.

[ 3 ] Mr. Zamora says that he went into his residence and called the police. They asked if he could get himself to the hospital. Mr. Zamora testified initially at trial that he called a taxi to take him to the hospital. At his examination for discovery in 2004, Mr. Zamora testified that his daughter drove him to the hospital and dropped him off without going in because she had to get ready to go to work. Mr. Zamora maintained after cross-examination at trial that he took a taxi to the hospital because his daughter was pre-occupied with helping his mother, who had become very upset about the incident. [ 4 ] Ms.

Zamora testified that she went to Mr. Zamora’s residence in order to drop off a piece of Mr. Zamora’s mail that had been delivered to her by mistake. She says that, as she approached the residence in her car, she saw Mr. Zamora standing in the street. She stopped the car and they spoke. At one point, she asked him what time it was. He replied 11:45, and she said she had to leave to pick up their young son from kindergarten. He said okay, took his hand off the car roof and stepped back from the street on to the sidewalk, which she thought was about four feet away. Ms.

Zamora said that her car was parked with the passenger side closest to Mr. Zamora’s residence. Ms. Zamora testified that Mr. Zamora waved to her, and she drove off and picked up her child. [ 5 ] Ms. Zamora says that later, Mr. Zamora’s sister called her and asked what she had done to Mr. Zamora as he was bleeding and had to be taken to the hospital by ambulance. She and her son went to the hospital and saw Mr. Zamora sitting in emergency in a wheelchair. She did not see any injuries, nor did she see any blood on him, but one of his pant legs was rolled up and a bag of ice was on his knee.

She asked him why he was doing this, as she had not touched him. Mr. Zamora grabbed his son and started talking to him and shortly thereafter was taken in to see a doctor. Ms. Zamora says that Mr. Zamora was screaming that he had pain in his knee at the hospital and a nurse told him to calm down and that she would bring him something for the pain. [ 6 ] Ms. Zamora said that the police arrived at the hospital shortly after this, that they asked her some questions and then told her she could go. She received a call that evening telling her she had to make a formal statement.

She was never charged with anything, and was advised by the police that there were no witnesses to the alleged event. [ 7 ] Mr. Zamora also testified that Ms. Zamora appeared at the hospital. He says Ms. Zamora told him that the police had given her a ticket in relation to the accident. He says that Ms. Zamora told him that she had not hit him deliberately. He said that when the police subsequently came to the hospital, he told them that the incident was not intentional, that it was an accident. He said that the police then withdrew the charges he alleges that they had laid against Ms. Zamora. He says that Ms.

Zamora subsequently gave him a ride back to his home. [ 8 ] Initially, on cross-examination, Mr. Zamora agreed that the police had not charged Ms. Zamora with anything because there were no witnesses to the incident. Subsequently, he changed his testimony and insisted that the police did not charge Ms. Zamora because he told them that it was an accident. [ 9 ] Mr. Zamora called his daughter, Ms. Zamora’s step-daughter, to support his version of events. Claudia Zamora testified that she was watching the incident from the kitchen window and that she saw her father fall down in the street. Although Mr.

Zamora in his evidence testified that there was a van in the driveway in front of the kitchen window, Claudia Zamora denied that there was any vehicle there. Initially, at trial, Claudia Zamora initially testified that she drove her father to the hospital and dropped him off at the emergency room. After being prompted by Mr. Zamora, she changed her testimony to say that Mr. Zamora had taken a taxi to the hospital.

On cross-examination, Claudia Zamora said that she could not remember saying that she had driven her father to the hospital, despite that evidence being given just minutes before the cross-examination commenced. [ 10 ] Claudia Zamora confirmed that she had not given any statement to the police. Mr. Zamora was asked whether he had alerted the police to any witnesses. He said that they had not asked him about that, but that his mother, his sister and his daughter all witnessed the incident. Mr. Zamora’s mother has since passed away. Mr.

Zamora alleged that his sister was out of the country and therefore had not been called as a witness at trial. [ 11 ] I find that Ms. Zamora’s version of what occurred on September 25, 2001 is credible, and that she did not injure Mr. Zamora in any way with her vehicle. [ 12 ] Mr. Zamora read in as part of his case a portion of Ms. Zamora’s examination for discovery as follows:

Q. And where was the plaintiff standing? A. He opened the door for the passenger side and he came in. He did sit down and he did talk with me and I did talk to him. We exchanged words. I did give to him what I went in there on purpose to give it to him, which is to say, and I asked him, What time you have? Because I knew it was around time for me to pick my son from kindergarten. And he told me it’s almost a quarter. And I told him, Mario, I have to leave. I have to pick Marlo up because, you know, he don’t see us, he’s gonna cry. And he said Okay, he didn’t think what I did say to you.

And he did say bye and I did say bye and I just took off. I went around 816 Whitemont Drive to 44 th Avenue to pick my kid up. [ 13 ] Mr. Zamora also read-in questions and answers from Ms. Zamora indicating that Mr. Zamora got out of the car, but that they did not exchange any further words. He read-in a portion of the examination for discovery in which Ms. Zamora denied that Mr. Zamora was leaning against the car talking to her through the window after he got out of the car. [ 14 ] Mr. Zamora submits that this testimony is contradictory to Ms. Zamora’s testimony that Mr.

Zamora was talking to her through the passenger-side window, and that he had his arm on the roof of the car. While there is a minor discrepancy in Ms. Zamora’s testimony in this regard, the substance of her testimony on examination-for-discovery as to what occurred was the same as her trial testimony. [ 15 ] Mr. Zamora also read in a statement made by Ms. Zamora at examination-for-discovery that, before she got to the hospital, she was stopped by the police. While Ms.

Zamora did appear to deny at trial that she was stopped by the police, this was in the context of cross-examination to the effect that she had only gone to the hospital because the police had stopped her, which she denied, and in the context of Mr. Zamora’s allegation that the police had given her a ticket and charged her with an offence. [ 16 ] Ms. Zamora was never questioned about her testimony on examination for discovery at trial, since Mr. Zamora did not use the examination for discovery transcript in cross-examination and did not read-in any portion of it into the record until after Ms.

Zamora had closed her case. [ 17 ] Counsel for Ms. Zamora did not ultimately object to this departure from procedure, submitting that the minor discrepancies that may arise from the read-ins did not affect Ms. Zamora’s credibility. I allowed this exceptional departure from normal trial procedure even though Mr. Zamora had been given the opportunity to read-in evidence at the appropriate point of the trial and had refused that opportunity at the time because of Mr. Zamora’s unrepresented status and his language difficulties. Mr.

Zamora submitted that the read- ins he introduced into evidence would prove that there was in fact an incident as he alleged, but in fact, the read-in evidence did not cast doubt on Ms. Zamora’s veracity as a witness or prove the incident as Mr. Zamora claims it occurred. [ 18 ] I do not find Claudia Zamora’s evidence that she saw the incident to be credible, even if she was at home at the time it is alleged to have occurred. I find from the manner of her testimony that Claudia Zamora tailored her evidence to support her father’s version of events. The discrepancies in the evidence with respect to whether Mr.

Zamora was driven to the hospital by his daughter or took a taxi, the presence or absence of a vehicle in the driveway, the fact that Claudia Zamora was not asked to give a statement to the police, all cast doubt on whether she actually witnessed the exchange between her father and stepmother. [ 19 ] I am also troubled by the same contradictions and discrepancies in Mr. Zamora’s evidence. There is clearly animosity between these two people arising from the failure of their marriage. Mr. Zamora alleges that Ms.

Zamora somehow stole his mail, and does not accept that delivery of a piece of correspondence in his name to Ms. Zamora’s new address could have been an error by the postal authorities. [ 20 ] Mr. Zamora was less than candid about any pre-existing health issues he may have had, and often resorted to a failure of memory when asked about previous medical treatment or diagnoses, or when asked about what medical professionals had advised him about the cause of his pain after the alleged incident. While some of the problems with Mr.

Zamora’s testimony may be attributable to his language difficulties, he was evasive and argumentative in his evidence.

Interpretation Difficulties [ 21 ] This trial became complicated when Mr. Zamora complained after the evidence had been heard about the quality of

interpretation provided by the Spanish interpreter. I allowed Mr. Zamora to retain an alternate interpreter to review the evidence. The interpreter retained by Mr. Zamora, Carmen Aguilera, sent me a report dated July 4, 2010 which included the following opinion: In the proceedings, I heard that the Interpreter was not very experienced in Court Room procedures, did not handle the legal terms or medical terms very well and the Interpreter does not have very much experience in Court Protocol.

However, the knowledge of both languages by the Interpreter is good (English and Spanish) although colloquial and that after the questions are repeated or clarified two or three times, the Interpreter finally manages to transmit the substance of the question or the answer although several times missing words; also the Interpreter was able to summarize the proceedings on several occasions. As an example of some of the legal terminology interpreted, i.e., Discovery, the Interpreter does not use the Spanish word or words, to indicate that this was the session where documents were prepared before the trial.

In another instance, when Mr. Zamora is asked “if he agrees that his memory was better in 1986 or 1996 (mistake in years of the Interpreter which he manages to correct) than what it is know (sic) ”, the Interpreter repeats the question but indicates that “If he agrees that his memory was worse at that time”. In another part of the tape, when Mr. Zamora is asked about problems with his health the

Interpretation is confusing. In some instances he does manage to clarify the disease that Mr. Zamora suffers related to tendonitis, not so when mentioned the bursitis he has suffered. Another confusing

part is when interpreter says that Mr. Zamora has balls in his hands, I believe he is referring to lumps or swelling in his hands and feet, that may have the shape of a marble. In another case, the Interpreter does not transmit the full message of Mr. Zamora’s medical problems, and does not clarify if these are previous or recent. There also seems to be some confusion, and the Interpreter could have assisted better when explaining if the car was in the driveway, carport or in front of the street next to the sidewalk.

If I also understood correctly, there is a little confusion and assistance on the part of the interpreter to Mr. Zamora in the sense that he is saying that his daughter was working that day, only that her work was in a later shift or evening shift that day. [ 22 ] Although I had noted these minor problems in the translation, which were ultimately clarified, during the trial, I called the parties back to court to hear submissions on this opinion. Further to those submissions, I directed that Mr.

Zamora have the opportunity to have the portion of his testimony on cross-examination relating to his health (as set out above) translated by Ms. Aguilera and a translation provided to the parties and the Court. I directed that Mr. Zamora be responsible for Ms. Aguilera’s fees and expenses at first instance, although he would be able to claim them as costs if he was ultimately successful. [ 23 ] Unfortunately, Mr. Zamora and Ms. Aguilera had a falling-out over her services. I agreed with Ms. Aguilera that this put her in an untenable position, and on July 23, 2010, I notified Mr.

Zamora that he had until August 20, 2010 to retain another professional and independent interpreter. [ 24 ] After a number of delays occasioned by Mr. Zamora’s claims of ill health, a revised translation was received on September 29, 2010. The revised translation does not change my findings with respect to Mr. Zamora’s testimony or his credibility. [ 25 ] In

summary, I found Ms. Zamora to be a creditable witness and I accept her version of events. Mr. Zamora as plaintiff had the onus to prove that Ms. Zamora was negligent in the operation of her vehicle and caused him injury. He failed to do so. Mr. Zamora has been unable to establish that there was any act or conduct by Ms. Zamora that caused him injury. There is no persuasive evidence to indicate that Ms. Zamora operated her vehicle in an inappropriate manner or that her vehicle struck Mr. Zamora. [ 26 ] Even if I had accepted that Mr. Zamora had been injured by Ms. Zamora’s conduct in operating her vehicle, Mr.

Zamora failed to advance credible or persuasive evidence of loss or injury caused by this conduct. [ 27 ] Mr. Zamora testified that he suffered injuries when he fell after Ms. Zamora drove her car away too quickly. He testified about receiving physiotherapy and treatment from Dr. Elumir and Dr. Wachtler, but Dr. Wachtler did not appear to testify. Dr. Elumir did

testify, but she did not have her file with her and had only vague recollections of seeing Mr. Zamora in 2001, when she recalled prescribing morphine for injuries that Mr. Zamora had indicated arose from a motor vehicle accident. She testified that Mr. Zamora had advised her that morphine had worked well for him in the past for pain relief. Dr. Elumir recalled treating Mr. Zamora for pain management for a brief period of time in 2003 or 2004, and making a few referrals to specialists for him. She also recalled referring him to physiotherapy. As Dr.

Elumir was called as an ordinary witness, she gave no opinion on causation. [ 28 ] Mr. Zamora was evasive in his answers on cross-examination about his health prior to the alleged incident, and did not explain discrepancies between his examination for discovery evidence on his injuries and pre-existing health status and his evidence at trial. He initially denied having a pre-existing condition in his hands and feet, and later conceded that he had such a condition, but said that the alleged accident caused different complaints.

He denied remembering whether he had received treatments for pre-existing conditions at various times and with various specialist, and refused to answer other questions about his preexisting conditions. Mr. Zamora’s evidence with respect to his alleged injuries was contradictory and confusing. He has not satisfied the onus on him as plaintiff to establish that the alleged incident caused him injuries for which there should be compensation. Conclusion [ 29 ] Mr. Zamora’s claim is dismissed. If the parties are unable to agree on costs, they may make further submissions.

Dated at the City of Calgary, Alberta this 29 th day of April, 2011. B.E. Romaine J.C.Q.B.A. Appearances: Mario Zamora Self-Represented Plaintiff Taryn C Burnett for the Defendant