Dalyrymple v Carait, 2015 ABQB 791

Court of Queen ’ s Bench of Alberta Citation: Dalyrymple v Carait, 2015 ABQB 791 Date: 20151214 Docket: 1201 01110 Registry: Calgary Between: Tanya Dalyrymple Plaintiff - and - Neil Carait Defendant _______________________________________________________ Memorandum of Decision of A. R. Robertson , Q.C., Master in Chambers _______________________________________________________ Introduction [ 1 ] This is an application for

summary dismissal of claim arising from a motor vehicle accident. [ 2 ] The accident occurred on Beddington Boulevard NW in Calgary in the morning at approximately 9:05 a.m. The sun had risen at 8:14 a.m.

[ 3 ] Neil Carait lawfully parked his minivan on the right hand side of the road, facing east, so he could work on a Telus box near where he stopped. He is a subcontractor to Telus. Tanya Dalyrymple was driving another vehicle, and she hit his minivan from behind. [ 4 ] Mr. Carait argues that he was not negligent, that she was, and that her claim should be dismissed. Facts [ 5 ] The defendant parked his minivan along Beddington Boulevard, facing eastbound, shortly after a bus stop. There is no sign at that point in the roadway indicating that parking is prohibited.

He was stopping to do some work near where he had parked. [ 6 ] There was no emergency situation that compelled him to park where he did. Sometimes he parks in the residential community on a quiet street, instead of along Beddington Boulevard when he has to do his work in this area. When there is no snow on the ground, he sometimes pulls right up onto the curb and parks completely off the road on the grassy area. On this day, there was snow on the ground and he parked against the snow on the right hand curb [ 7 ] He says he turned on his four-way flashers as he slowed, but Ms. Dalyrymple denies seeing them.

For the purpose of this application, Mr. Carait is prepared to accept that the four-way flashers were not on. [ 8 ] He gathered his tools and just as he was about to get out of his vehicle he saw the plaintiff’s car approaching. [ 9 ] Ms. Dalyrymple approached from the west, driving into the morning sun. She said that because of the snow on the ground and the glare of the sun in her eyes, even with the use of her vehicle’s sun visor her vision was impaired by the glare. However, she traveled approximately 50 km/h. She did not see Mr.

Carait’s minivan until shortly before the collision, and she did not brake, but rather she took her foot off the accelerator and tried to swerve. [ 10 ] The application is brought on the basis that there is simply no merit to her claim. Submissions [ 11 ] Ms. Dalyrymple argues that the roadway is busy, and cars do not normally park in that location.

Since Beddington Boulevard does not have houses facing it, and there are no driveways, no businesses, and no reason for drivers to park along there, she argues that it was reasonable for her to assume that the traffic ahead of her was moving and that the van ahead was not stopped. It is a four lane roadway, divided by a median, and there is no shoulder or other area set aside where a driver can park safely off the roadway (other than driving over the curb onto the grass). [ 12 ] Ms. Dalyrymple saw Mr.

Carait’s minivan sometime before the collision, but initially she did not realize that it was stopped. [ 13 ] She said there were no four-way flashers going, and there were no lights on the minivan. It was only when she became too close to avoid the collision that she realized that it was stopped. [ 14 ] She argues that the fact that Mr. Carait says he turned on his four-way flashers is an acknowledgment that he knew that there was some risk in parking where he did.

He says he always turns on his four-way flashers when he parks alongside a busy road. [ 15 ] She argues that although there is no statutory, regulatory, or by law prohibition about parking where he did, nonetheless

section 115 of the Traffic Safety Act , RSA 2000

Chapter T – 6 applies. It provides as follows: For the purposes of this section, a driver of a vehicle is driving carelessly if the driver drives a vehicle (

a) without due care and attention, or (

b) without reasonable consideration for persons using the highway. [ 16 ] She argues that in the circumstances it was unreasonable for Mr. Carait to park where he did. Therefore,

section 115 applies, and that he was driving “without due care and attention”. Of course, he was not necessarily “driving” when she hit – he had turned off the ignition and was about to exit - but the definition of “driving” in section 1 (1)(

i) says “driving” includes having the care or control of a vehicle, and furthermore while he was parking, he was driving. The fact that he had fully parked by the time the accident occurred does not change that. [ 17 ] Mr. Cariat says he parked lawfully, she was driving when she couldn’t see, she didn’t see his vehicle in time, and she hit it.

Summary Dismissal Considerations [ 18 ] Aside from the debate over the four-way flashers, there is really no factual issue in dispute. There is no evidence that Mr. Carait was troubled by the sun ahead or that he gave it any thought. There is no evidence as to how clear Ms. Dalyrymple’s windows were, and how unclear windows might have made visibility worse. Each party is to put their best foot forward. There is no reason to believe that any more facts will be available to a trial judge (except on the four-way flasher point). There has been questioning here. No one claims to be disadvantaged by a premature

summary dismissal application. [ 19 ] The dispute over whether the four-way flashers were on has been resolved, for purposes of this application, by the defendant asking that I assume they were not on, although he argues that it does not matter. [ 20 ] Accordingly, there is a proper basis for a

summary dismissal application in light of the direction by the Court of Appeal in Windsor v. Canadian Pacific Railway Ltd. , 2014 ABCA 108 . Analysis

[21] This is not a case where the person who has stopped did so suddenly without proper reason and created a hazard in traffic thata driver from behind could not have reasonably anticipated. The evidence is clear that Ms. Dalyrymple would have had time to see Mr.Carait’s minivan and stop, if her vision were not impaired by the sun, or alternatively she had slowed down because of the sun. Drivingat 50 km/hr when you cannot see is careless, perhaps dangerous, driving. If she had slowed down to a proper speed in the circumstance,she would have appreciated earlier that it was actually stopped. [22]

Section 186 of the Highway Traffic Act puts the onus on the driver of the vehicle in motion, when the accident is not “betweenmotor vehicles”: 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 thatthe loss or damage did not entirely or solely arise through the negligence or improper conduct of the owner or driver of the motor vehicleis on that owner or driver.

(2) This

section does not apply in the case of an accident between motor vehicles on a highway. (3) ... [23] Here, Mr. Carait’s vehicle was parked, while Ms. Dalyrymple’s was in motion. [24] Accordingly, the burden of proof lies with Ms. Dalyrymple and as well, as plaintiff, she generally has the burden of proof inthe action. The applicant for

summary dismissal has the burden of satisfying the requirements of rule 7.3, and having presented evidenceto satisfy the obligation, the burden then shifts to the respondent. For all of these reasons, I am satisfied that here the burden lies with Ms.Dalyrymple. [25] There is a similarity here to the facts in R. v.

Beyer, 2011 ABPC 198, where the Court found (in a prosecution under theTraffic Safety Act) that “It is negligence to not see what is plainly there.” Where the sun visors had been pulled down but the drivercould not see because of the blinding effect of the sun, the Court found that the driver should not have been driving. When he could notsee, it was careless driving regardless of the speed. [26] I do not accept the argument that since Mr.

Carait claims to have turned on his four-way flashers he must have acknowledgedthat there was risk and the claim should not be summarily dismissed. [27] There is always a risk when stopping at the side of any road. When parking lawfully, the law does not make it a requirementthat special steps be taken to warn on-coming drivers of something that is plainly visible.

The fact that someone “always” takes extrasteps to reduce the risk of a collision should not be used as evidence against that cautious driver if he does not take that extra step.Without a heavy snowfall obscuring vision, or some other weather or atmospheric problem that alerts a driver who is parking that hemight be creating an unusual hazard, there is no need to put on flashers, or set out orange cones, or set up flares or take other such steps. [28] A rising sun and glare from snow is a common occurrence in Canada. Drivers are expected to drive accordingly. [29] The plaintiff refers to Mosely v.

Spray Lakes Sawmills

(1980) Ltd., (AB KB), [1997] A.J. No. 30, for thestatement that an “operator of [a] stationary vehicle [owes] a positive duty to motorist not to create a situation which causes a danger orhazard on the highway.” But in that case Madam Justice Paperny (then of the Court of Queen’s Bench) was dealing with a busy two-lanehighway with very little shoulder, not a residential road with two lanes in each direction where parking is allowed. As mentioned below,the rules are different for roads outside of urban areas. [30] The plaintiff also refers to Crackel v.

Miller, 2003 ABQB 781, but in that case the broken down vehicle was left on the lefthand side of the road, creating a hazard, not lawfully parked on the right. [31] In Eirikson v. Breton, 2000 ABQB 798, a City of Calgary Fire Department Truck had been left on the left hand side ofDeerfoot Trail, creating an unusual hazard. [32] In Wickberg v. Patterson, 1997 ABCA 95, a driver had stopped partly on the roadway and partly on the shoulder, and he wasfound to have contributed to the rea-end collision that resulted, but it was on a highway, where different rules apply.

Outside of an urbanarea, parking on a highway is illegal when it is practicable to park the vehicle off the roadway, and even parking a vehicle completely ona shoulder is illegal unless the vehicle is broken down, an emergency arises, or parking there is permitted under some other law: s. 43 ofthe Use of Highway and Rules of the Road Regulation, Alta. Reg. 304/2002, created under the Traffic Safety Act. In Wickberg, parkingwhere the defendant did was not legal. [33] Here, Ms. Dalyrymple was driving into blinding sunlight at approximately 50 km/hr at the time of the collision.

Asmentioned, she did not brake, but took her foot off the accelerator and tried to swerve. Conclusion [34] I am alert to the fact that for the defendant’s application to succeed the case must be sufficiently clear that there would be nogenuine factual issue for trial, such that there would be no apportionment of liability at trial against Mr. Carait, even of 1%. [35] However, the facts here are that 1. Mr. Carait was lawfully parked, 2. Ms.

Dalyrymple apparently gave no thought to the prospect that someone might have parked a vehicle on Beddington Boulevard,even though it is lawful to do so at that point in the road, and 3. she was driving when she could not see properly ahead of her because of sun and glare.

[ 36 ] She should not have been driving at 50 km/hr when the effect of the sunlight and glare was that she could not see that a white minivan was parked on the road ahead of her. She should have slowed to a very slow rate of speed or stopped, and in any event proceeded with a great deal of caution. [ 37 ] Ms. Dalyrymple has the burden of proof. [ 38 ] In this circumstance, the defendant’s position is unassailable, meaning that it is highly likely to be successful at trial, and accordingly the claim is summarily dismissed. [ 39 ] Costs of this application and the claim generally are payable to the defendant under

Schedule “C”, no allowance for second counsel, unless there are factors that might justify a different costs award, in which case the parties may approach the Court to make submissions. Heard on the 1 st day of December, 2015. Dated at the City of Calgary, Alberta this 14 th day of December, 2015. A. R. Robertson, Q.C. M.C.C.Q.B.A. Appearances: Derrick S. Pagenkopf and Jonathan Lam Gowling Lafleur Henderson LLP for the Defendant/Applicant Norma C. Mayer and Moe Warren Ross Warren Edwards for the Plaintiff/Respondent