Chay v. British Columbia Transit, 2013 BCSC 2608

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Chay v. British Columbia Transit, 2013 BCSC 2608 Date: 20130114 Docket: 10-1182 Registry: Victoria Between: Lorraine Chay Plaintiff And British Columbia Transit and Brian Bellows Defendants Corrected Judgment: The text of this judgment was corrected atparagraphs 6, 9 and 10, where changes were made on July 19, 2017 Before: The Honourable Madam Justice Ross Oral Rulingre Qualification of Richard C. Howard as Expert Witness Counsel for the Plaintiff: F.K. Walton, Q.C.L. Kramchynski, Articled StudentCounsel for the Defendants: D.

McDonaghPlace and Date of Trial/Hearing: Victoria, B.C.January 14, 2013Place and Date of Judgment: Victoria, B.C.January 14, 2013 [1] THE COURT: The plaintiff seeks to qualify Mr. Richard C. Howard as an expert to give opinion evidence with respect todriving double-decker buses. [2] Mr. Howard began working for B.C. Transit in 1974 and retired from B.C. Transit in 2004, after 30 years of service. Duringthose years, he was a regular, full-time bus driver with the defendant bus company. [3] The current case concerns an injury suffered by the plaintiff when she was climbing the stairs on a double-decker transit bus.

Mr. Howard has experience driving double-decker transit buses on the route in question. [4] An objection has been taken to qualifying Mr. Howard as an expert. In the alternative, an argument will be made with respectto the weight to be given to such evidence. The submission of the defence is that Mr.

Howard acknowledges that his memory withrespect to driving the route in question, is not crisp, since he has not done so for approximately eight years, that he has no background ortraining or experience in the training and safety aspects of bus driving, and that was never part of his employment. [5] The plaintiff relies on the reasons of Mr. Justice Ehrcke in MacEachern v. Rennie, 2009 BCSC 585.

In that case the plaintiffsought to have Randy Eckert, a professional driving instructor with extensive experience driving large commercial vehicles, includingtractor-trailers similar to the one involved in the accident, qualified as an expert witness to give opinion evidence with respect to thestandard of care applicable to a professional driver of a commercial tractor-trailer in the circumstances of the case, whether the conductfell below the standard of care, and evidence regarding the characteristics of large tractor-trailers. [6] Mr.

Justice Ehrcke reviewed the criteria for expert opinion set out by the Supreme Court of Canada in R. v. Mohan, (SCC), [1994] 2 S.C.R. 9, and noted that while ordinarily expert evidence is not permitted as being beyond the commonunderstanding in traffic cases, when dealing with large commercial vehicles, the situation is different since, as he stated at para. 11: ... while most adults in British Columbia may have some experience in driving motor vehicles, few have experience in driving largecommercial tractor-trailers.

Few would know from their common experience what the handling characteristics of such vehicles are, orwhat the visibility is from the perspective of a driver in the cab, or what the common driving practices are of professional drivers of suchrigs. He then noted at para. 12: Not only have most persons never had the experience of driving such vehicles, most persons would not even be legally permitted to drivethem, since to do so one must first satisfy the requirements to obtain a special class of driver’s licence.

[ 7 ] In the present case, those comments are apt since I think it is equally the case that the experience of driving a transit bus, let alone a double-decker transit bus, is beyond the common experience, and so it is appropriate, in my view, for expert evidence to be permitted with respect to this issue. [ 8 ] In this case, I am satisfied that Mr. Howard has the necessary experience to qualify him to give expert evidence with respect to driving double-decker buses, and with respect to driving them on the route in question. [ 9 ] I notice that at page 5 of the report, in a

section headed “Other Points”, Mr. Howard describes his recollection of the instructions from B.C. Transit with respect to what I will call generally policy and safety matters. [ 10 ] I have concluded that the expert report will be admitted. However, it is my view that with respect to the

section headed “Other Points”, Mr. Howard does not appear to be giving an opinion with respect to what the appropriate standards and policies ought to be, but rather is giving factual evidence with respect to his recollection of what the policies were when he was a driver. I am content to have that evidence go in on that basis, but not as expert opinion, which, as it is written, it does not appear to me to purport to be, in any event. It is my view that Mr.

Howard is not qualified by his training and experience to give expert evidence with respect to matters of training and safety. [ 11 ] But I do qualify him, as the plaintiff sought, to give expert evidence with respect to driving double-decker buses, which would include, in my view, such things as common driving practice. “Ross J.”