Guan v Unrah, 2013 ABQB 397

Court of Queen ’ s Bench of Alberta Citation: Guan v Unrah, 2013 ABQB 397 Date: 20130712 Docket: 1001 07272 Registry: Calgary Between: Zhong Ai Guan Plaintiff - and - Sharon J. Unrah, The City of Calgary, Xun Tu Thai and Hungkee Holdings Co. Ltd. Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice C.M. Jones _______________________________________________________ I. Overview [ 1 ] This matter came before me on October 23, 2012. The Plaintiff suffered injuries in a traffic accident that occurred on October 11, 2008.

I was advised by counsel that the question of damages had been settled between the parties. Accordingly, the Plaintiff did not appear or make representations. The issue I must decide is which of two drivers was at fault. If I decide that they were both at fault, I must then apportion liability between them. [ 2 ] Counsel for each of the two groups of Defendants were very helpful. As will be evident from the discussion below, an absence of eye witnesses and the fact that no collision between vehicles occurred posed evidentiary challenges.

Counsel provided me with an Agreed Exhibit Book and an Agreed Book of Authorities. That effort streamlined the trial and allowed me, for purposes of this decision, to focus on key issues.

II. Facts: A. The Accident [ 3 ] When the accident occurred, the Plaintiff was a passenger in a transit bus owned by the Defendant, the City of Calgary (the “City”). The Defendant, Sharon J. Unrah (“Ms. Unrah”), an employee of the City, was driving the bus. [ 4 ] The bus had been proceeding south on Centre Street North. It stopped at a bus stop (the “Bus Stop”), pulling into a dedicated turnout lane (the "Turn Out Lane") abutting the sidewalk on the west side of Centre Street.

At the point where the Turn Out Lane ends, a vehicle in it must exit into the southbound curb lane (the "Curb Lane"). [ 5 ] As the bus started to leave the Bus Stop, Ms. Unrah applied the brakes to avoid collision with a van. The bus and the van did not collide, but the Plaintiff was propelled forward and was injured. [ 6 ] The van was driven by the Defendant Xun Tu Thai (“Mr. Thai”) and was owned by the Defendant Hungkee Holdings Co. Ltd. (“Hungkee”). Apparently oblivious to what was happening on the bus, Mr. Thai continued past the bus and pulled up onto the sidewalk in front of a market to make a delivery.

Unaware that he may have contributed to this incident, Mr. Thai completed his delivery and left the scene. [ 7 ] Counsel for the various Defendants both acknowledge that: 1. Ms. Unrah was operating the bus with the express consent of the City and was acting within the scope of her employment with the City; and 2. Mr. Thai was operating the van with the express consent of Hungkee and was acting within the scope of his employment with Hungkee. B. The Bus [ 8 ] On the day of the accident, Ms. Unrah was driving a forty foot long bus.

The bus was equipped with, inter alia , the following features, the relevance of which to the issue before me I describe below: 1. a rear view mirror (the "Overhead Rear View Mirror") which allowed Ms. Unrah to see what was happening in the bus and, if passengers were not standing, allowed her to see out the rear window of the bus; 2. a left side driver's mirror (the "Left Driver's Mirror") attached to the outside of the bus. The Left Driver’s Mirror had an upper portion and a lower portion. The upper portion gave the driver a range of vision extending back and diagonally away from the bus.

The lower portion provided a similar but broader field of vision, but caused objects to appear smaller than when viewed from the upper portion of the mirror; 3. a video recording device (the "Driver’s Cam"). The Driver’s Cam was turned on at all times while the bus was in operation. However, it was "activated" only when the bus was subjected to a certain degree of force. Once activated, the Driver’s Cam recorded continuous images of what was happening both in the bus and outside the front of the bus.

This technology allowed these continuous images to be recorded for the 10 seconds immediately preceding and the 10 seconds immediately following the instant in which the activating force was applied to the bus. In this case, the activating force was the application of the bus' brakes to avoid collision with the

van. I refer to that moment as "Activation"; and 4. two windows on the driver’s left. Photo number 1 at Tab 7 of the Agreed Exhibit Book reveals that the rear most of those two windows is of no value to the driver in determining if it would be safe to move the bus. The front most window (the "Driver's Side Window") is larger and affords a driver a view to the left and, upon shoulder checking, a limited view behind. III. Testimony A. Ms. Unrah [ 9 ] Ms. Unrah testified that, at the time of accident, she had been driving for the City for approximately three months.

She had received the training required to acquire a class 2 licence, enabling her to drive a bus. [ 10 ] Ms. Unrah testified that before starting her shift that day, she "set up" her bus. Set up includes adjusting her seat and her mirrors so that she can see properly. She testified that road and weather conditions were not factors contributing to the accident that day. [ 11 ] Ms. Unrah testified that she stopped at the Bus Stop in the Turn Out Lane. Passengers exited and entered her bus. Her bus was full and passengers were standing in the aisle.

She could not see out the back of the bus through her Overhead Rear View Mirror. [ 12 ] Ms. Unrah testified that, in preparation to leave the Bus Stop, she: 1. closed the front door of the bus, her left signal light having already been activated; 2. applied her foot brake; 3. put the bus in neutral; 4. disengaged the park brake; and 5. looked in her right mirror, her Overhead Rear View Mirror and her Left Driver's Mirror. [ 13 ] She testified that, seeing no vehicle on her left, she started to leave the Turn Out Lane and enter the Curb Lane to proceed south on Centre Street.

As she was proceeding, she noticed the van beside her. [ 14 ] Included at Tab 6 of the Agreed Exhibit Book were twenty-one extracts taken from the recording made by the Driver’s Cam (the "Frame Shots"). The Frame Shots show front and rear views starting 10 seconds before Activation and ending 10 seconds after Activation. Each Frame Shot has a frame time. [ 15 ] The frame time for Activation is 0.00. The frame time for the Frame Shots which precede Activation is preceded by a minus sign showing seconds (or fractions of seconds) before Activation.

The frame time for the Frame Shots which follow Activation is preceded by a plus sign showing seconds (or fractions of seconds) after Activation. [ 16 ] Ms. Unrah testified that:

1. she first noticed the van at time -1.5 [Agreed Exhibit Book, Tab 6, shot 9]; 2. she saw the van drive in front of her at time -1.0 [Agreed Exhibit Book, Tab 6, shot 10]; and 3. to avoid collision, she applied the brakes hard at time 0.00 [Agreed Exhibit Book, Tab 6, shot 11]. [ 17 ] She testified that she thought the van must have been travelling very fast. [ 18 ] Under cross-examination, Ms. Unrah testified that she was not distracted by passengers that day.

She acknowledged that a stationary vehicle, such as her bus, does not have the right of way, vis à vis a vehicle in a travel lane, when the stationary vehicle is attempting to enter that travel lane. She understood that she must wait for traffic in that travel lane to clear before entering it. [ 19 ] She further testified under cross-examination that, having looked in her Left Driver's Mirror and determined that it was safe to pull away from the Bus Stop, she did not shoulder check. B. Ms. Tania Fraser [ 20 ] Ms.

Fraser is the co-ordinator of operations control centre for the City and has been employed with the City for 34 years. Her responsibilities currently include overseeing bus and rail coordinators. [ 21 ] She testified as to the training that new bus drivers undergo. She indicated that drivers are taught that before leaving a bus stop, they are to observe the following protocol: 1. check the right driver's mirror; 2. check the left driver's mirror; 3. activate the appropriate turn signal; 4. shoulder check; and then 5. proceed. [ 22 ] Ms.

Fraser testified about an "accident reconstruction event" that took place on October 4, 2012. She indicated that the purpose of this event was to observe Ms. Unrah in her "set up" procedures and to determine ranges of vision afforded by the two parts of her Left Driver's Mirror. Present at this event were Ms. Unrah, Ms. Fraser, counsel for the City and counsel's assistant.

Certain photos taken at this event are contained in Tab 7 of the Agreed Exhibit Book. [ 23 ] Photo 3 depicts the Left Driver's Mirror and photo 4 depicts, with aid of pylons and tape, the range of vision a driver would have with the Left Driver's Mirror. On cross-examination of Ms. Fraser, counsel for the Defendants Mr. Thai and Hungkee drew attention to the fact that photo 3 appears to show a range of vision for the top part of this mirror which is more limited than the range of vision depicted in photo 4. He questioned Ms. Fraser about this discrepancy.

[ 24 ] I recognize that photo 3 is intended to depict what Ms. Unrah would have seen from her Left Driver's Mirror. I also recognize that, viewed together, photos 3 and 4 appear to differ in their depiction of the range of vision.

However, looking at photo 3, I have concluded that a very slight difference in the driver's seating position (or, in this case, the position of the camera used to take photo 3) could significantly influence the range of vision photo 3 is intended to depict. [ 25 ] Restated, I think a very slight difference in the position of the camera used to take photo 3 could have depicted a range of vision entirely consistent with that depicted in photo 4. I note, however, that on cross-examination, Ms.

Fraser acknowledged that the accident reconstruction event was not a scientific undertaking, conducted under rigidly controlled circumstances and that, since we have no way of knowing exactly what Ms. Unrah's seating position was, any conclusions regarding her range of vision derived from these photos are merely a guess. [ 26 ] On re-direct, counsel for the City and Ms. Unrah offered a diagram purporting to show the distances from the left rear corner of the bus to the two pylons which attempts to depict the range of vision afforded by the two parts of the Left Driver's Mirror.

In particular, it purports to depict blind spots. Counsel for Mr. Thai and Hungkee objected to the introduction of this new information. I did not allow this diagram as an exhibit. It is not evidence. At most it may be said to offer the City’s views of where blind spots my arise. C. Mr. Xun Tu Thai [ 27 ] Counsel for the City and Ms. Unrah introduced read-ins from the Questioning of Mr. Thai on July 25, 2011. As Mr. Thai does not speak English, questioning would have been conducted through an interpreter. [ 28 ] The read-ins established that: 1.

He made deliveries to the Lambda market on Centre Street almost every day; 2. His route had him driving west on 16 th Avenue, turning left (south) onto Centre Street into the lane immediately adjacent to the centre line (the "Centre Lane"), then moving over to park by the market; 3. He sometimes parks on the street (in the Curb Lane) and sometimes on the curb itself; 4. He believes he is parking in a loading zone; 5.

When in the Centre Lane heading south towards the Lambda market, he sometimes enters the Curb Lane from the Centre Lane, stopping in the loading zone and he sometimes moves from the Centre Lane across the Curb Lane and onto the sidewalk in one fluid motion; 6. The van depicted in the Frame Shots is the van he was driving that day; and 7. He shoulder checked and does not remember whether or not he noticed traffic in the Curb Lane. [ 29 ] On direct examination, with the considerable aid of a Cantonese interpreter, Mr. Lai, it became evident that:

1. the van Mr. Thai was driving is approximately 7 feet tall; 2. He was unaware of what happened on the bus; and 3. He parks in a loading zone on Centre Street adjacent to the Lambda market. [ 30 ] On cross-examination, Mr. Thai testified that, in performing his delivery to this location, he sometimes crosses from the Centre Lane through the Curb Lane in one fluid motion before coming to a stop on the curb. On other occasions, he moves from the Centre Lane into the Curb Lane, remaining there momentarily before moving up onto the sidewalk and coming to a stop. Mr.

Thai could not recall which of those protocols he followed that day. IV. Findings of Fact [ 31 ] Having reviewed the testimony, watched the live action video replay of the accident, reviewed the Frame Shots extracted from the video replay and considered the arguments of counsel, I have concluded that: 1. Approximately nine seconds before Activation, Ms. Unrah looked in her Overhead Rear View Mirror; 2. Approximately seven and three-quarters seconds before Activation, Ms. Unrah looked in her Left Driver's Mirror, presumably checking to see if it was safe to leave the Bus Stop; 3.

Approximately six and one-half seconds before Activation, Ms. Unrah leaned forward to take some unspecified action; 4. Approximately five and one-half seconds before Activation, Ms. Unrah again looked in her Overhead Rear View Mirror; 5. Approximately two and one-quarter seconds before Activation, Ms. Unrah began to turn into the Curb Lane, while simultaneously looking to her left. She noticed the van beside her, though I cannot determine if she noticed it in her Left Driver's Mirror or if she actually saw it; 6.

Approximately one and three-quarters seconds before Activation, the van is seen crossing in front of the bus and proceeding to drive up onto the sidewalk; 7. I cannot determine from the evidence if Mr. Thai crossed over from the Centre Lane to the Curb Lane and up onto the sidewalk in one motion. Similarly, I cannot determine from the evidence if he proceeded south on Centre Street in the Centre Lane, moved into and remained in the Curb Lane for an instant, before turning onto the sidewalk; 8. There is no evidence to suggest that Mr. Thai was travelling at an excessive rate of speed; 9.

I cannot determine from the evidence if Mr. Thai chose to enter the Curb Lane from the Centre Lane at the exact moment at which Ms. Unrah chose to enter the Curb Lane from the Turn Out Lane; 10. Had Ms. Unrah looked in her Left Driver's Mirror a second time, between when she first looked in it at seven and three-quarters seconds before Activation and the time she started to move, she should have noticed the van, unless it was in a blind spot.

Counsel for the City asserts that such a blind spot was created by the configuration of the Left Driver’s Mirror; his diagram, which I refused to admit into evidence, sought to depict the blind spot. In any event, however, if there was a blind spot, a shoulder check should have revealed the van's presence to Ms. Unrah.

V. Law and Application A. Use of Highway and Rules of the Road Regulation [32] Having established the facts, what law applies to determine liability for this accident? The relevant statutory regime includesthe Traffic Safety Act, RSA 2000, c T-6 (the “Act”) and the Use of Highway and Rules of the Road Regulation, Alta Reg 304/2002 (the“Regulation”).

Part 1, Division 4, s. 15(4) of the Regulation provides, in part, that: Notwithstanding anything in this section, when the movement cannot be made in safety, a person driving a vehicle shall not do thefollowing: (

a) drive the vehicle from one traffic lane to another; . . . (

c) drive the vehicle from a curb lane into a traffic lane; (

d) drive the vehicle from a parking lane into a traffic lane. [33] Certainly, one could speculate that Mr. Thai might have been moving from the Centre Lane into the Curb Lane at the exactmoment Ms. Unrah started to move from the Turn Out Lane into the Curb Lane. However, the evidence before me is not sufficient tolead to a conclusion that Mr. Thai could not move safely from the Centre Lane to the Curb Lane and speculation is not a reasonable basisupon which to make findings of fact. [34] The fact that Mr.

Thai moved onto the sidewalk in the loading zone, as opposed to stopping in the loading zone but in theCurb Lane, does not imply that he acted in an unsafe manner. I note that his movement onto the sidewalk took place after Activation. [35] Conversely, it is clear that Ms. Unrah could not move safely from the Turn Out Lane into the Curb Lane. Were it otherwise,this incident would not have happened. B. Dominant and Servient Drivers [36] Both counsel noted that drivers’ respective duties to respond to specific situations depends on their characterization as"dominant" or "servient" drivers.

Right of way gives a driver dominant status. This was canvassed by my colleague Moen J. in Ward vWard, 2010 ABQB 654, 496 AR 42 at paras. 24-25: The standard of care required of a driver with the right of way ... has been considered in many cases. In those cases, the driver with theright of way is known as the "dominant driver" ... and the driver without the right of way is called the "servient driver" ...

With respect to the principles governing the standard of care for dominant drivers, the Supreme Court of Canada stated that while adominant driver does not have the absolute right to exercise his or her right of way, that driver is entitled to assume that other drivers willfollow the rules of the road and yield the right of way: Walker v. Brownlee and Harmon, (SCC), [1952] 2 D.L.R. 450 at460-61.

[37] The evidence supports the conclusion that Mr. Thai was in the Curb Lane when Ms. Unrah decided to enter it and that Mr.Thai was in the Curb Lane when Ms. Unrah first noticed him. Otherwise, she would not have felt it necessary to apply her brakes. [38] The City and Ms. Unrah argued that Mr. Thai was in the Curb Lane simply because he was crossing through and in so doing,cutting Ms. Unrah off, in his attempt to get onto the sidewalk. They also argued that Mr. Thai was travelling at an unreasonable rate ofspeed.

As noted above, however, the evidence before me, in the form of the Frame Shots and the video replay from the Driver’s Cam, isnot sufficient to establish either of these things. [39] What is clear is that Ms. Unrah was attempting to leave the Turn Out Lane at the time of Activation. I note that neither “turnout lane” nor “curb lane” is defined in the Act or in the Regulation. “Parking lane” is defined in s. 1(1)(

m) of the Regulation as “thatportion of a provincial highway between (

i) the edge of the roadway to the right of the direction of traffic, and (ii) the nearest solid whiteline, not being the centre line, marked on the roadway”. “Traffic lane” is defined in s. 1(1)(

t) of the Regulation as “...inside an urban area,a longitudinal division of a roadway into a strip of sufficient width to accommodate the passage of a single line of vehicles, whether ornot the division is indicated by lines on the road surface.” [40] Despite the limited

definitions, I conclude that Mr. Thai had the right of way, given that the evidence establishes that Ms.Unrah was moving into the Curb Lane at the time of Activation, but does not establish that Mr. Thai was doing so at the same time. Thatbeing the case, Mr. Thai was the dominant driver for purposes of this analysis and Ms. Unrah was the servient driver. [41] Having determined that Mr. Thai was the dominant driver and Ms. Unrah was the servient driver, I note these comments ofthe Alberta Court of Appeal in McElhatton v.

Wales, 2000 ABCA 94, 255 A.R. 183 (“McElhatton”) at para. 15: The Supreme Court of Canada in Walker v. Brownlee and Harmon, (SCC), [1952] 2 D.L.R. 450, set the test for findingnegligence on the part of a driver with the statutory right-of-way.

Cartwright J. stated at page 461: I am of opinion that when A, the driver in the servient position, proceeds through an intersection in complete disregard of his statutoryduty to yield the right-of-way and a collision results, if he seeks to cast any portion of the blame upon B, the driver having the right-of-way, A must establish that after B became aware, or by the exercise of reasonable care should have become aware, of A's disregard ofthe law B had in fact a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availedhimself; and I do not think that in such circumstances any doubts should be resolved in favour of A, whose unlawful conduct was fons etorigo mali. [42] I hasten to add that I do not suggest that Ms.

Unrah acted in complete disregard of her statutory duty to yield the right of wayand, of course, no collision resulted in this case.

Perhaps a more applicable articulation of this principle may be found at para. 16 ofMcElhatton, where the Court of Appeal states that: According to that test, the appellant (dominant driver) cannot be found liable unless the respondent can prove that the appellant wasaware or reasonably should have been aware of the impending accident and had an opportunity to avoid the collision which a reasonablycareful and skilful driver would have taken. [43] Here, the evidence suggests the contrary, that Mr.

Thai was unaware of the impending accident and therefore could not havehad an opportunity to avoid that to which he was oblivious. This is perhaps all the more so given that no collision actually took place,though that of course is the result of Ms. Unrah’s timely application of her brakes. [44] Counsel for the City and Ms. Unrah drew my attention to para. 16 of the decision in Vibert v. Stern, (ABKB), 225 AR 1 (QB) ("Vibert") where the Court noted that:

The dominant driver should not exercise his right of way if, under the circumstances, it is reasonably foreseeable that a collision would result which could have been avoided ... [ 45 ] The inference he would have me draw is that Mr. Thai, though the dominant driver with the right of way, should not have proceeded past the bus in the Curb Lane, en route to the sidewalk. However, the fact that Mr. Thai was completely oblivious to what took place on the bus and that no collision occurred suggests that a collision was not reasonably foreseeable to him. [ 46 ] Counsel for the City and Ms.

Unrah also drew my attention to the decision in St. Pierre v. Sira , 2009 ABPC 131 (" St. Pierre "). At para. 25 of that decision, the Court determined that, because the two parties were travelling in same lane of travel in the same direction, there was no clear right of way favouring one party over the other and thus conferring dominant and servient driver status. Counsel asserted that this situation is analogous because Mr. Thai and Ms. Unrah were both trying to get into the Curb Lane and head the same direction. He alleges that Mr.

Thai contravened s. 44 of the Regulation, which provides that: A person driving a vehicle shall not, unless (

a) required or permitted by the Act, this Regulation or by a traffic control device, (

b) in compliance with a direction given by a peace officer, or (

c) to avoid conflict with other traffic, stop or park the vehicle at the following locations : (

d) on a sidewalk or boulevard ... [Emphasis added.] [ 47 ] This incident is distinguishable from that in St. Pierre because it is not a case of two vehicles in the same lane at the same time. Rather, it is a case of one vehicle (the bus) starting to enter a lane and noticing another vehicle (the van) already in that lane. [ 48 ] Counsel for the City and Ms. Unrah points out that at para. 36 of Vibert , Fruman J., as she then was, noted that “The experts agree that normal human reaction time is between 1.5 and 2.5 seconds…”. He argues that Ms. Unrah could not have been negligent because she first saw Mr.

Thai 1.5 seconds before Activation and applied the brake well within the normal range of human reaction time. [ 49 ] Ms. Unrah's reactions to Mr. Thai's appearance beside her were admittedly remarkably fast. That, however, does not alter the fact that had she checked her Left Driver's Mirror a second time before starting to leave the Bus Stop or had she shoulder checked prior to starting to move and not simultaneously with her departure from the Bus Stop, she would have noticed the van.

Presumably, she then would not have started to move and Activation (and consequent injury to the Plaintiff) would not have occurred. C. Comparative Blameworthiness [ 50 ] Counsel for the City and Ms. Unrah introduced the concept of comparative blameworthiness, noting the decision of our Court of Appeal in Heller v. Martens , 2002 ABCA 122 , 303 AR 84 (" Heller "). Counsel alleges that, at the very least, Mr.

Thai was contributorily negligent and submits that I should apply the tests in Heller to ascertain comparative blameworthiness. [ 51 ] The Contributory Negligence Act , RSA 2000, c C-27 (the “CNA”), requires the Court to apportion liability if contributory

negligence is found. A finding of contributory negligence requires the defendant to prove that the plaintiff was negligent and that the plaintiff's negligence was a cause of the injuries.

However, the broad articulation of shared liability in s. 1(1) of the CNA also permits its application as between co-defendants. [ 52 ] Section 1(1) of the CNA provides that: When by fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree in which each person was at fault but if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally. [ 53 ] This, however, is limited by s. 1(2), which provides that: Nothing in this

section operates to render a person liable for damage or loss to which the person's fault has not contributed. [ 54 ] Further, s. 2(1) of the CNA provides that: When damage or loss has been caused by the fault of 2 or more persons, the court shall determine the degree in which each person was at fault. [ 55 ] Comparative blameworthiness is a method of apportioning fault. However, its application requires a determination that both parties have been at fault. The evidence before me does not establish that Mr. Thai was at fault.

Further, the comparative blameworthiness test in Heller requires each party to have departed from the standard of conduct to be expected of a reasonable party in all the circumstances. The evidence before me does not establish such a departure in respect of Mr. Thai’s conduct. Therefore, neither the comparative blameworthiness test from Heller nor the CNA has any application to this case. [ 56 ] Counsel for the City and Ms.

Unrah also points to the provisions of s. 3(2) of the Tort-feasors Act , RSA 2000, c T-5 (the “TFA”), which provides that: In any proceedings for contribution under this section, the amount of the contribution recoverable from any person shall be an amount that the court finds to be just and equitable having regard to the extent of that person's responsibility for the damage. [ 57 ] Section 3(3) of the TFA provides that: The court has power (

a) to exempt any person from liability to make contribution, or (

b) to direct that the contribution to be recovered from any person shall amount to a complete indemnity. [ 58 ] This provision also is not applicable in this case because it assumes contribution from a tort-feasor who would have some liability in respect of damages. The evidence does not allow for a finding of liability on the part of Mr. Thai. VI. Conclusion

[ 59 ] Sections 185 and 186 of the Act provide for the placement of onus in civil proceedings arising from incidents with motor vehicles. Those sections read as follows at the time of the accident and have not been amended: Onus where Act contravened 185 If (

a) a person sustains loss or damage arising out of the operation of a motor vehicle on a highway, and (

b) that motor vehicle is operated by a person who is in contravention of or fails to comply with this Act, the onus of proof in any civil proceeding that the loss or damage did not arise by reason of that contravention or failure to comply is on the owner or driver of the motor vehicle. Onus on owner or driver 186

(1) If a person sustains loss or damage by reason of a motor vehicle being in motion, the onus of proof in any civil proceeding that the loss or damage did not entirely or solely arise through the negligence or improper conduct of the owner or driver of the motor vehicle is on that owner or driver.

(2) This

section does not apply in the case of an accident between motor vehicles on a highway.

(3) In this section, “motor vehicle” includes a self-propelled implement of husbandry. [ 60 ] I find that this accident occurred because Ms. Unrah placed her vehicle in motion when it was unsafe to do so. I am unable to find that Mr. Thai's actions contributed to this accident. Therefore, Ms. Unrah is solely at fault for the accident and the damages arising therefrom. [ 61 ] As noted above, the City acknowledges that Ms. Unrah was operating the bus with the express consent of the City and was acting within the scope of her employment with the City.

I note that had the City not given this acknowledgement, the deeming provisions of s. 187(2) of the Act would have had the same result. [ 62 ] If, based on the decision above, the parties cannot agree on costs, they are directed to provide me with written submissions in that regard within thirty (30) days of the date of these reasons. Heard on the 23 rd day of October, 2012. Dated at the City of Calgary, Alberta this 12th day of July, 2013.

C.M. Jones J.C.Q.B.A. Appearances: James T. Floyd City of Calgary Law Department for the Defendants, The City of Calgary and Sharon J. Unrah Jeff S. Brunner Barrister and Solicitor for the Defendants, Xun Tu Thai and Hungkee Holdings Co. Ltd.