Digiuseppe v Zwicker, 2022 ABKB 846

Court of King’s Bench of Alberta Citation: Digiuseppe v Zwicker, 2022 ABKB 846 Date: 20221215 Docket: 1703 13055 Registry: Edmonton Between: Deborah Digiuseppe Plaintiff - and - Lynne Zwicker and Kenneth Zwicker Defendants _______________________________________________________ Reasons for Decision of the Honourable Applications Judge L.A. Smart _______________________________________________________ Introduction [ 1 ] The Zwicker Defendants apply for

Summary Dismissal of the claim by Deborah Digiuseppe (Plaintiff) arising from a collision between her bicycle and a motor vehicle operated by the Defendant Kenneth Zwicker. Lynne Zwicker was the owner of the subject motor vehicle. The Zwickers argue that there is no evidence that Kenneth Zwicker was negligent in the operation of the motor vehicle. Central to determination in this case is the

interpretation and application of section 186(1) of the Traffic Safety Act , RSA 2000, c T-6 ( TSA ) which reads: 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 ] There is no allegation against Lynne Zwicker for negligence or improper conduct. For ease of reference, I will refer to Kenneth Zwicker as the Defendant.

Facts [ 3 ] The Plaintiff was riding her bicycle east on Grenfell Avenue towards its intersection with Grosvenor Boulevard in St. Albert, Alberta. It is a T like intersection in that Grenfell comes to an end with a stop sign and one must then proceed into the intersection to turn

right or left onto Grosvenor. The Plaintiff arrived at the intersection and with her feet still clipped to the pedals, executed a standing stopfor about five seconds, and then proceeded onto Grosvenor to turn left (northerly) towards her intended destination. Her speed was slowas she had not geared down before stopping and had to gain her momentum while in a high gear. She did not see the Defendant either inthe intersection or approaching it. [4] The Defendant had or was entering the intersection with the intention to turn left from Grosvenor onto Grenfell to proceedwest.

There are no traffic controls at the Grosvenor intersection requiring a driver to stop or yield to “drivers” coming from Grenfell. Hewas driving at approximately five miles per hour and was executing his turn when the Plaintiff struck the right front quarter panel of thevehicle. When proceeding into the intersection he observed motor vehicles stopped at the stop sign on Grenfell and thereafter confirmedthat no vehicles were coming from the south on Grosvenor before executing his turn. He did not see the Plaintiff on her bicycle at thatpoint and it was not until a moment before the collision did he see her.

The Plaintiff stated that in order to avoid more serious injury whenseeing the Defendant’s vehicle a moment or two before the collision, she turned to the right resulting in her colliding into the right frontof the Plaintiff’s vehicle rather than potentially being hit by the front of his vehicle. She landed on the hood of the vehicle and ended upon the ground beside the vehicle. [5] The Plaintiff was charged with failing to stop at the stop sign. She was acquitted of that charge. The transcript of theproceedings in Provincial Court was provided. The acquittal itself is not particularly helpful.

In my view whether the Plaintiff stopped isnot clear. Regardless, the Defendant entered the intersection when it was unsafe to do so. [6] Also, somewhat controversial is whether the Defendant said the sun was in his eyes. The making of this statement is deniedby the Defendant. On questioning the Defendant acknowledged he did not have sunglasses on and his visor was not down. He was notasked if the sun was in his eyes nor has he sworn to that one way or the other in his evidence. Discussion [7] Bradford v Snyder, 2016 ABCA 94 provides an excellent review on the

interpretation and application of s186(1) of the TSAas follows: [17]

Section 186 of the TSA imposes a statutory burden of proof on the operator of the motor vehicle to demonstrate that thesubsequent loss or damage “did not entirely or solely arise” through his negligence. In other words, the provision creates a “reverse onus”or a rebuttable presumption that the loss or damage from the accident arose from the driver’s negligence. 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 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) In this section, “motor vehicle” includes a self-propelled implement of husbandry. [18] Under

section 1(

x) of the TSA, “motor vehicle” is defined as: (

i) a vehicle propelled by any power other than muscular power, or (ii) a moped, but does not include a bicycle, a power bicycle, an aircraft, an implement of husbandry or a motor vehicle that runs only on rails. [19] The rebuttable presumption created by s 186 of the TSA remains until the end of the case and does not shift back to the plaintiff:HC (Dependent Adult) v Loo, 2006 ABCA 99; Gotlib v Calgary (City), 2009 ABQB 174; Rances v Scaplen, 2008 ABQB 708; Mose vMoeck, 2005 ABQB 485. [20] If the driver is able to prove that the accident occurred through no fault of his own, then the presumption will be rebutted and themotorist will be found not liable.

For example, in Winnipeg Electric Company v Geel, (UK JCPC), [1932] 4 DLR 51(PC), the driver adduced proof that neither party was to blame because neither party could avoid the other. [21] If, at the end of the case, either: (

a) the evidence shows that the driver was at fault; or (

b) the evidence was too meagre or tooevenly balanced for a court to determine the issue of the driver’s negligence, then the presumption will not be rebutted. The non-motorist’s claim will therefore succeed. [22] It is important to highlight that evidence of contributory negligence on the part of the plaintiff is not, in itself, sufficient for thedriver to discharge the onus: see Goldberg and Goldberg v McInnis, Capital Cab Co Ltd and Nordli, (1959) (SK KB),19 DLR (2d) 306 (Sask QB) at 18.

Without more, such evidence goes only to rebutting the presumption in part such that anapportionment of fault under the Contributory Negligence Act is necessary. This point was clarified by the Supreme Court of Canada inFeener (Next friend of) v McKenzie, (SCC), [1972] SCR 525, which dealt with a similar provision under NovaScotia’s Motor Vehicle Act, RSNS 1967, c 191.

At pp 537 to 538: This presumption against the operator remains until the very end of the case, but it is a presumption which can be rebutted either in wholeor in part, and if after all the evidence has been heard the jury is satisfied that the operator was only partly to blame, then the fault is to be

divided in accordance with the provisions of the Contributory Negligence Act . If, on the other hand, the jury is satisfied on the whole of the evidence that there was no fault on the part of the operator which caused the accident, the plaintiff's action must be dismissed. The question of whether, and to what extent, the presumption has been rebutted is one which can only be determined at the conclusion of the case. [Emphasis added.] [ 8 ] In many respects the facts in Bradford are similar to this case.

Although it was a grey and rainy afternoon, the accident reconstruction experts gave evidence that sightlines in the intersection were clear. As in this case the cyclist and the driver should have been visible to one another but neither party saw the other until a moment or two before the collision. In that sense the accident could be said to be avoidable. [ 9 ] Ultimately, the driver in Bradford was found not to have discharged her duty by taking her eyes off the road for 2 to 4 seconds to ensure she was complying with the speed limit before entering the intersection in a playground zone.

The cyclist having ridden through a stop sign was found contributorily negligent. [ 10 ] In Elliott v Edmonton (City) , 1993 ABCA 45 , the City and the driver of a city bus were found at trial to be 20% to blame for a collision with a cyclist. Elliott appealed from the finding he was negligent or that the division was disproportionate. The City and the driver did not appeal the finding of negligence. [ 11 ] The cyclist was riding in a curb lane along Jasper Avenue when he approached a parked car and decided to overtake it in that lane.

Unfortunately, when doing so his handlebar struck the side mirror of the vehicle throwing him against the side of a city bus overtaking him in the adjacent lane. Such a maneuver was contrary to the provisions of the Highway Traffic Act and by its terms constituted negligence unless disproved. The Court described what the cyclist did as illegal, very negligent and unforeseeable. [ 12 ] In addressing the question of apportionment the Court noted there was no evidence the bus could have moved over in its lane or safely into a lane beside it.

It noted that had the bus driver been paying better attention, he might have been able to slightly diminish the danger of the situation but could not say the bus caused the situation, or that the bus driver could clearly have avoided the accident. I recognize that the operation of s 186 of the TSA was not the issue the Court was specifically addressing.

Nonetheless, it is instructive in that despite very minimal evidence of “negligence” by the bus driver it readily accepted a 20% apportionment which based on Heller v Martens , 2002 ABCA 122 is to be determined on the degree to which each party departed from the standard of care. Conclusion [ 13 ] The onus is on the Defendant to establish he was not negligent in these circumstances. There is no doubt the Plaintiff left from the stop sign and proceeded into the intersection when it was unsafe to do so. However, that is not sufficient to discharge the onus imposed upon the Defendant under the TSA .

The Defendant did not see the Plaintiff though there was no apparent reason why he could not. There is some question as to whether the sun was a factor. The Defendant focused on the possibility of oncoming traffic before executing his turn perhaps resulting in his failure to see the Plaintiff. Photographs of the accident scene were provided and Plaintiff’s Counsel theorized that the Defendant may have “cut the corner” improperly.

Based on my review of the photographs it appeared that the Plaintiff may have also moved through the intersection in an improper fashion although that does not alter the need for the Defendant to disprove negligence. [ 14 ] The Defendants seek

summary dismissal of the claim. The Plaintiff argues that if I am not satisfied the Defendants have rebutted the presumption that I should conclude there is liability and proceed with apportionment albeit quantum would have to be determined later. The Defendants resist as that application has not been brought by the Plaintiff. [ 15 ] Regardless, I must first determine if

Summary Dismissal is appropriate in the circumstances. The proper approach to follow when determining

summary disposition is described in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 at para 47 : [47] The proper approach to

summary dispositions, based on the Hryniak v Mauldin test, should follow the core principles relating to

summary dispositions, the standard of proof, the record, and fairness. The test must be predictable, consistent, and fair to both parties. The procedure and the outcome must be just, appropriate, and reasonable. The key considerations are:

a) Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on a

summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial?

b) Has the moving party met the burden on it to show that there is either “no merit” or “no defence” and that there is no genuine issue requiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities or the application will fail, but mere establishment of the facts to that standard is not a proxy for

summary adjudication.

c) If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying a positive defence, by showing that a fair and just

summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. If there is a genuine issue requiring a trial,

summary disposition is not available.

d) In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared to exercise the judicial discretion to summarily resolve the dispute. To repeat, the analysis does not have to proceed sequentially, or in any particular order. The presiding judge may determine, during any stage of the analysis, that

summary adjudication is inappropriate or potentially unfair because the record is unsuitable, the issues are not amenable to

summary disposition, a

summary disposition may not lead to a “just result”, or there is a genuine issue requiring a trial.

[ 16 ] I am satisfied that based on the record before me I am able to conclude that the Defendants have not disproved there was any negligence on their part. The failure to see the Plaintiff whether as a consequence of there being sun in the Defendant’s eyes or through inadvertence is sufficient to establish some negligence. I agree with the Plaintiff that based on that determination there is liability on the part of the Defendants. [ 17 ] However, I am not prepared to deal with apportionment. As noted above apportionment must be determined on the degree that each party departed from the standard of care.

Photographs of the location of the vehicle and the bicycle after the collision are helpful but they do not assist in determining the actions of the driver and cyclist leading up to the collision. In addition, the ability to assess those actions by use of the photographs alone is confounded by the intersection not being a true T as Grosvenor curves somewhat into and out of the intersection. In my mind those actions and factors are material to the degree of departure from the standard of care and consequently apportionment. Decision [ 18 ] The application for dismissal of this action by the Defendants is dismissed.

The apportionment of liability shall be determined on further application or trial. The Plaintiffs will have their costs of the application payable at the end of the action. Heard on the 08 th day of June, 2022. Dated at the City of Edmonton, Alberta this 15 th day of December, 2022. L.A. Smart A.J.C.K.B.A. Appearances: Bruce E. Mintz Mintz Law for the Plaintiff Beverly R. McAmmond DDC Lawyers LLP for the Defendants