Fletcher v. Waterson, 2021 BCPC 110

Citation: Fletcher v. Waterson 2021 BCPC 110 Date: 20210429 File No: 1963537 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: IAIN FLETCHER AND ADELE CHAN CLAIMANTS AND: RORY WATERSON AND INSURANCE CORPORATION OF BRITISH COLUMBIA DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. GIARDINI Appearing for the Claimants: I. Fletcher Counsel for the Defendants: S. Mackenzie (February 16, 2021) D. Robertson (February 17, 2021) Place of Hearing: Vancouver , B.C. Date of Hearing: February 16 and 17, 2021 Date of Judgment: April 29, 2021

Introduction [ 1 ] On March 2, 2017, Mr. Fletcher, the claimant, and Mr. Waterson, the defendant, were involved in a motor vehicle accident in Vancouver, British Columbia. The collision occurred on the Stanley Park Causeway or on the road leading to the Causeway in the area near Lost Lagoon. The Insurance Corporation of British Columbia (ICBC) concluded that the claimant, Mr. Fletcher, was 100% liable for the collision. The claimant brought this action in Small Claims Court because he does not accept ICBC’s apportionment of blame. The claimant asserted he was in no way liable for the collision.

In fact, he maintained that the fault lies with the defendant, Mr. Waterson. Overview of background [ 2 ] The claimant, who was driving his family’s Volkswagen Touareg (the Volkswagen), and the defendant, who was driving his Audi A4 (the Audi), were each driving on West Georgia Street in downtown Vancouver heading to the Lions Gate Bridge. There was an initial interaction of sorts between the claimant and the defendant, which occurred near the entry to Stanley Park, approximately in the area between Chilco Street and the entry to Stanley Park.

The collision occurred a short while later, on the road in the vicinity of three traffic control barriers affixed to a concrete divider that separates northbound and southbound traffic on the Causeway. [ 3 ] The claimant maintained that, because of the initial interaction with the defendant and the defendant’s aggressive behaviour, he became concerned about continuing to drive in the right lane behind the defendant.

Accordingly, the claimant took the opportunity to pass the defendant’s Audi when they arrived in the area near the three traffic control barriers. [ 4 ] The claimant believed it was safe to pass the defendant. He began to do so by first moving into the left lane. Next, he accelerated past the defendant who was in the right lane. A collision subsequently occurred. The claimant attributed the collision not to his own driving but to the driving of the defendant.

The claimant asserted that the defendant sped up, collided with the Volkswagen while the claimant was still in the left lane, and thus prevented the claimant from completing the passing manoeuvre. [ 5 ] The defendant said the collision occurred close to the three traffic control barriers. He maintained the claimant accelerated near that area and the left front panel of the Audi came into contact with the Volkswagen’s right rear passenger side and right wheel. The defendant maintained that vehicular traffic was stop-and-go throughout the time of his interactions with the claimant.

He agreed that he “accelerated” from time-to-time but said he did so in order to keep moving with the flow of traffic. The defendant denied that he accelerated or sped up in order to prevent Mr. Fletcher from completing his passing manoeuvre. Issue [ 6 ] The central issue in this case is liability. In other words, who was at fault for the collision? As noted, the claimant rejected ICBC’s assessment of liability. He denied any fault regarding the collision. If I find he was not at fault, or only partially responsible, he claims $859.80 for the increase in the cost of his automobile insurance.

The claimant also claims additional costs for: the expert report from an engineer, the cost of printing photographs, the cost of sending registered mail, court fees, charges imposed by ICBC for providing documents and for supplies needed to prepare the documents tendered in court as exhibits. The claimant did not make a claim for personal injury or for repair of the Volkswagen as it was traded-in sometime later when he bought another vehicle, thus repairs were not an issue. Evidence at trial Mr. Fletcher [ 7 ] Mr.

Fletcher testified that on March 2, 2017, he and his 8-year-old son were on their way to Cypress Mountain to go skiing. They were travelling in the family’s 2011 Volkswagen from the Kerrisdale area and through downtown Vancouver. He said he was not in a rush. At approximately 8:50 A.M., Mr. Fletcher was driving on West Georgia Street in downtown Vancouver and heading for the Lions Gate Bridge to the North Shore. He said that the counterflow lane of traffic on West Georgia Street had vehicles in it heading into downtown Vancouver. This was the case until approximately Gilford Street. [ 8 ] Mr.

Fletcher testified that on the approach to Stanley Park (close to the Lost Lagoon area and Chilco Street) there are four lanes of traffic heading towards the North Shore. There is a bus lane on the far right (Lane 1). Next to the bus lane, on the left, is another lane of traffic, which eventually goes only into Stanley Park (Lane 2). There are another two lanes, which head towards the Causeway, one in the “middle” (Lane 3) and another lane immediately next to the double yellow line of the counterflow lane (Lane 4). The counterflow lane runs down the middle of West Georgia Street. That morning, Mr.

Fletcher said his Volkswagen was travelling in Lane 3. Mr. Waterson, the defendant, was directly in front of him in the same lane. According to Mr. Fletcher, the counterflow lane (Lane 4) had just opened up. [ 9 ] Mr. Fletcher entered photographs, which showed that as one got closer to the entrance to Stanley Park, the lines on the road changed and a solid double yellow line opened up into a Y. At that point, a paved median separated the lanes going towards the Lions Gate Bridge from the lanes going towards downtown Vancouver. At approximately that point, Mr.

Fletcher noticed other cars driving in the lane of cars ahead of him had signalled to go into the lane on the left. That lane leads to the Stanley Park Causeway and to the Lions Gate Bridge. [ 10 ] In that area and at that time, Mr. Fletcher said there were two lanes open for vehicular traffic going towards Stanley Park. It was at this area that he had his first interaction with the defendant. Mr. Fletcher said he signalled to go into the left lane but, when he did so, the defendant moved his Audi immediately in front of him and then braked abruptly. Mr. Fletcher also braked to avoid hitting the Audi. Mr.

Fletcher said that Mr. Waterson, the defendant, was essentially straddling the white line between the two lanes that were open to traffic heading into the Causeway. By doing so, he was preventing Mr. Fletcher from moving into the left lane. Mr. Fletcher said that for a period of time the defendant continued to straddle the broken white line between the two lanes, sped up, and then braked, and kept repeating those manoeuvres.

[ 11 ] Mr. Fletcher took two short videos of this interaction as well as several photographs using his cell phone. The photographs and videos tendered in evidence showed the defendant waving his middle finger out of his driver’s window. Mr. Fletcher testified the photographs showed that the defendant’s actions occurred near the beginning of the concrete median/divider that separated the lanes of traffic going towards the Lions Gate Bridge and those going to the right into Stanley Park. [ 12 ] Mr.

Fletcher asserted that the photographs/videos were significant evidence because they showed where he first encountered the defendant. Mr. Fletcher did not take the videos right away. He said the defendant’s behaviour started before the point when he took the videos/photographs. At trial, no evidence was given about the exact time when the videos were taken. On reviewing the videos tendered as exhibits, I noted that the date and time stamp on the two videos was: 04-03-2017 9:50 4 A.M. and 04-03-2017 9:57 A.M.

The actual time the videos were taken may have helped to put the events in chronological context, but it is not necessarily significant in making the ultimate liability determination. [ 13 ] Mr. Fletcher testified that the left lane leading into the Causeway (the one immediately adjacent to the centre line/concrete dividers) was open. However, Mr. Fletcher said the defendant not only continued to slow down and then brake, but he also straddled the lane they were travelling in and the left lane. Consequently, Mr. Fletcher could not go around the defendant, which is what Mr. Fletcher wanted to do. Mr.

Fletcher also said the photographs are significant because they showed that a short while before the collision there was lots of space between the defendant and a grey car in front of the Audi. The inference he wants the court to draw is that there was no reason for the defendant to continually be applying the brakes on his Audi. [ 14 ] Mr. Fletcher said, after he completed taking the second video, he moved the Volkswagen completely into the right lane and continued driving behind the defendant’s Audi. He stopped trying to move into the left lane. Mr.

Fletcher also testified that from that point on the defendant, Mr. Waterson, became increasingly aggressive. According to Mr. Fletcher, the defendant slowed down. When the claimant slowed down as well (in an attempt to indicate he was not engaging with the defendant) the defendant slowed down even further. This continued for a while, according to Mr. Fletcher. He said when all of this was happening there were at least four or five car lengths between the defendant’s Audi and a grey/silver car in front of the Audi. [ 15 ] Mr. Fletcher continued to follow the defendant’s Audi and stayed in the right lane.

However, at one point, the defendant’s Audi sped up and Mr. Fletcher began to follow. Mr. Fletcher thought the defendant was following the flow of traffic. However, according to Mr. Fletcher, the defendant appeared to gear down and then hit the Audi’s brakes hard. At that point, both the Audi and the Volkswagen were in the right lane. Mr. Fletcher said that shortly thereafter, while they were stationary, he took the opportunity to pass the defendant. Mr. Fletcher pulled into the left lane and accelerated past the defendant’s Audi. Mr.

Fletcher believed he was one or two car lengths ahead of the defendant when he felt the collision. Mr. Fletcher explained he passed the defendant’s Audi because, given the defendant’s escalating behaviour, he no longer felt safe driving behind the defendant. After the collision, Mr. Fletcher said he looked into his right side mirror and saw that the defendant’s Audi had slowed down. As the Audi slowed down, Mr. Fletcher moved the Volkswagen into the right lane. [ 16 ] According to Mr. Fletcher, the collision occurred before the area where there are three traffic control barriers.

Those three traffic control barriers are attached to a concrete divider on the centre lane of traffic going toward the Lions Gate Bridge. Mr. Fletcher said the counterflow lane gates (i.e. the three traffic control barriers) were in a “downward position”. At one point, he also described the barriers as being “open”. Whichever word was used, both parties were clear this meant that the three traffic control barriers (which are three different lengths) were in a position to prevent traffic from proceeding down the left lane. [ 17 ] Mr.

Fletcher testified that the collision occurred before, not at, the area where the three traffic control barriers are located. He referred to a Google map (Exhibit 1 page 11), which he entered into evidence and said that the counterflow gates were at the top of that Google-view map and were therefore out of view. He pointed to that map and estimated that the area where the collision occurred was between where a raised median ended, on the right, and where the shadow of the overhead lights was cast in the Google-view map. [ 18 ] Mr.

Fletcher said, although the three traffic control barriers were in a downward position, at no point did he think he would hit those barriers. He reiterated that the collision occurred before the barriers. After the collision, he was able to pull over to the right and into a pullout area. The defendant’s car pulled in behind him and so did the car of a witness, who pulled in behind the defendant’s car. [ 19 ] Mr. Fletcher said his son started crying, so he stayed in the Volkswagen for a moment after he had pulled over to the side.

When he got out of the Volkswagen, he saw that the defendant had already walked over to the witness’ vehicle and was returning to the Audi. Mr. Fletcher said the defendant was holding a business card in his hand. He was holding his hand up and was pumping his fist in the air. According to Mr. Fletcher, the defendant said something to the effect that he already had the witness. Mr. Fletcher further said the defendant’s behaviour at the time made him think that the witness the defendant had spoken to would not be an impartial witness. [ 20 ] Mr.

Fletcher testified that the only way the defendant’s Audi could have collided with his Volkswagen was if the Audi had sped up. Therefore, Mr. Fletcher did not think liability would be an issue. He was also confident that the whole series of events between him and the defendant had been captured on roadside cameras on the Causeway. However, he later discovered that although roadside cameras exist at a few places along that stretch of road, there were none that captured the lead-up to the collision or the collision itself. [ 21 ] In cross-examination, Mr.

Fletcher agreed there had been some level of conflict between him and the defendant before the collision. He agreed the situation got to a level that he decided to take photographs. Mr. Fletcher acknowledged he was trying to move into the left lane but then moved back to the right lane. He agreed he did so without using his lane change indicator. He did not agree that is when the collision occurred. [ 22 ] Mr. Fletcher disagreed that he was pulling in and out of traffic. He said the accident occurred when he pulled out, but noted that the defendant had sped up. Mr.

Fletcher said the contact did not occur in the right lane. He also said that the collision did not occur while he was merging into the right lane. [ 23 ] Mr. Fletcher agreed that the initial assessment by ICBC found him to be 100% liable. He also agreed he requested a reassessment. He acknowledged that the reassessment upheld the 100% liability conclusion. However, he said the reassessment had not been a proper reassessment. He believed certain materials he had submitted with the reassessment request, including his written evidence

and communications with an engineer, did not make it to the person who conducted the reassessment. [ 24 ] Mr. Fletcher agreed that on the day of the collision traffic leading to Stanley Park was stop-and-go. He acknowledged that it might have been safer to avoid interactions with the defendant. He said he tried to slow down but the defendant did the same thing. Mr. Fletcher said he tried to “let up” but the defendant would not stop. He was asked several more questions in that regard. Mr. Fletcher believed he was not interacting with the defendant.

He also felt that the defendant counsel’s questions suggested something he did not do, namely, that he continued to track and overtake the defendant. Mr. Fletcher did not believe he was engaging with the defendant. In fact, he said he slowed down to show the defendant he was not engaging. However, the situation escalated because of the defendant’s behaviour. Expert witness Gerald Sdoutz [ 25 ] The claimant called evidence from an expert witness. He obtained a report prepared by Gerald Sdoutz, a registered professional mechanical engineer, who consults as a forensic engineer. That report was filed in court.

Additionally, Mr. Sdoutz gave viva voce evidence by telephone. In the opening introduction to the report, Mr. Sdoutz explained he was asked to review certain materials provided to him by the claimant, which he outlined in his report. He was also asked to inspect the 2011 Volkswagen in order to comment on the relative motions and speeds of the two vehicles prior to and at the time of impact. As already noted, his report and the materials provided to him were filed as an exhibit at the trial. I will not review all of the materials that were provided to Mr. Sdoutz.

However, more materials, including digital photographs, were provided directly to Mr. Sdoutz than those found in the claimant’s materials, which he filed as a separate exhibit. [ 26 ] The relevant background assumptions made by Mr. Sdoutz included an assumption that prior to the collision, Mr. Fletcher had been following the Audi. Mr. Fletcher had pulled into the left lane to pass the Audi when the collision occurred.

Another assumption was that all damage to the Volkswagen and the Audi seen in the materials provided by the claimant was a result of the incident on March 2, 2017. [ 27 ] As part of the discussion and analysis undertaken in his report Mr. Sdoutz noted:

a) the damage to the right side of the Volkswagen, including scuffing and gouging on the Volkswagen’s right rear wheel trim,

b) the denting in the rear passenger door that had pushed the door panel inward and also forward thus creating a gap between the door and the right rear wheel well, and

c) the Volkswagen’s damages were definitive of an impact force oriented in a back to front direction. [ 28 ] The damages to the Audi were along the left fender and the driver’s side door. Mr. Sdoutz wrote that the damage had the appearance of going from front to back.

He wrote it must be considered that if the Volkswagen was travelling faster than the Audi at impact and if at the time of impact the Volkswagen was making a rightward merge into the lane occupied by the Audi, the contact with the Audi would have only involved the left front corner of the vehicle and not the left fender nor the driver’s door. [ 29 ] Mr. Sdoutz wrote that, as a result of that analysis, the damage to both vehicles made it clear that at impact the Audi was travelling faster than the Volkswagen.

He was of the view that the impact occurred between the left front wheel of the Audi and the right rear wheel of the Volkswagen. Mr. Sdoutz believed that the tire rims of the two vehicles also came into direct contact. He further believed this indicated that the two wheels of the vehicles, and hence most likely the two vehicles, were at near parallel headings when the collision began.

He believed that after the contact between the Audi’s left front wheel and the Volkswagen’s right rear wheel, the Audi’s left front wheel continued forward, causing the damage to the rim on the forward portion of the Volkswagen’s wheel well. The Audi’s left front wheel continued to contact the Volkswagen. The Audi’s left front wheel made contact with the Volkswagen’s right rear door. Mr. Sdoutz believed this supported a conclusion that the Audi’s left front wheel was, most likely, turned to the left during the contact. [ 30 ] Mr. Sdoutz believed the Audi continued forward along the Volkswagen’s rear door.

The Audi’s left front fender also engaged the Volkswagen’s right rear door panel, causing damage. These contacts were with the forward half of the Audi’s left front wheel and fender. Mr. Sdoutz believed the final contact indicated that the Audi had been steered to the right to stop the contact and that the rightward steer resulted in the rear half of the Audi’s left front rim contacting the Volkswagen’s right rear door. This resulted in a forward-arced crease and gouge on the Volkswagen’s right rear door. [ 31 ] In

summary, Mr. Sdoutz believed the damage to the two vehicles indicated that the Audi was travelling at a faster speed than the Volkswagen, made initial contact with the Audi’s left front wheel to the Volkswagen’s right rear wheel, and from there continued forward into the Volkswagen’s right rear door. [ 32 ] A

summary of the expert’s conclusions noted the following:

a) At impact, the Audi was travelling faster than the Volkswagen.

b) The increasing damage from the rear to front into the Volkswagen’s right rear door supported the view that the Audi was being turned left during the collision.

c) Accepting his instructions that prior to the collision the Volkswagen had been passing the Audi, Mr. Sdoutz concluded that the Volkswagen must have been travelling faster than the Audi at one point. Accordingly, Mr. Sdoutz was of the view that the damage indicated the Audi had accelerated forward at a greater speed than the Volkswagen prior to the impact occurring.

d) Due to the lack of on-scene evidence, (i.e. there were no photographs of the vehicles at the scene, after the collision occurred, showing point of impact etc.) Mr. Sdoutz could not determine which vehicle had crossed the white line into the other driver’s lane to cause the contact.

e) However, Mr. Sdoutz concluded that the damage to both vehicles could be said to be inconsistent with the Volkswagen travelling faster than the Audi while making a rightward lane change when the contact occurred. [ 33 ] Mr. Sdoutz also gave viva voce evidence at the trial over the telephone. His viva voce evidence essentially confirmed what he had written in his report. He said his report was prepared on February 26, 2019. The photographs he reviewed were of good quality but it is always better to do a physical inspection. He was able to inspect the Volkswagen but not the Audi.

He inspected the Volkswagen on May 7, 2018. At that time, the damage to the Volkswagen had not been repaired. However, the right rear wheel and rim had been moved to the front. [ 34 ] At one point in his direct evidence, Mr. Sdoutz said that the damage to the Audi was not entirely definitive. He said if he had looked at the Audi by itself he would not have been able to tell in which direction the contact was made. However, it was most likely that the Audi contacted the edge of the Volkswagen and the right rear wheel well. [ 35 ] In cross-examination, Mr.

Sdoutz agreed he did not know the speed at which the two vehicles were travelling. However, he could comment on the difference in speed between the two vehicles. His conclusion was that the Audi was travelling faster than the Volkswagen. Nevertheless, he could not say that the damage was due to the Volkswagen cutting in without having overtaken the Audi. He did not know if there was ever a point when the Volkswagen’s rear bumper was in front of the Audi’s front bumper. [ 36 ] He agreed he wrote in his report that the contact between the two vehicles ended as the Audi steered to the right.

He agreed that was at the end of the impact when the defendant was steering away. He acknowledged that in his report he had written it was unfortunate no photographs were taken of the incident scene immediately after the vehicles came to a stop. Without such scene evidence it is impossible to comment on which vehicle had crossed the divided white line and entered the other vehicle’s lane leading to the collision between the two vehicles. [ 37 ] In cross-examination, Mr. Sdoutz was also asked questions about any communications he may have had with the claimant in preparing his opinion. Mr.

Sdoutz agreed he had communicated with Mr. Fletcher by email in March 2017. He acknowledged Mr. Fletcher wanted an expert’s report that could prove the other driver had accelerated. Mr. Sdoutz acknowledged he responded to Mr. Fletcher by email. He wrote to Mr. Fletcher that all the damages showed was that the Audi was moving forward when it contacted the Volkswagen and that it was moving faster than the Volkswagen. He further wrote that the damages did not show that the Audi swerved into the Volkswagen.

There was no way to reconstruct, from the photographs provided to him, that the Audi had been stationary, was accelerated from a stop, and swerved left to impact. Mr. Sdoutz wrote, the only way to tell that is if photographs of the two vehicles had been taken at the incident scene immediately after the collision and before the vehicles were moved. Denys Fedyunin [ 38 ] Mr. Fedyunin was a witness called by the defendant. He testified that on March 2, 2017, he was driving on West Georgia Street toward Stanley Park, heading to the Lions Gate Bridge.

He drove that route often because he sometimes worked in West Vancouver. Mr. Fedyunin said he was driving on the right side of the first lane on the road. I took that to mean that he was driving to the right of the bus lane. As he drove, Mr. Fedyunin said he was “supposed” to change from the lane he was driving in to the middle lane; he did so. That lane change brought him directly behind the Audi. As I understood his evidence, the lane he was in at that point, was adjacent to the counterflow lane. [ 39 ] Mr. Fedyunin said he saw the Volkswagen when he checked his left side mirror.

The Volkswagen was travelling on the left of his car. I understood that to be in the counterflow lane. Mr. Fedyunin said the Volkswagen drove close to him. It was being driven faster than anyone else who was on the road at that time. Mr. Fedyunin decided to slow down to give the Volkswagen driver more room. At that point, Mr. Fedyunin said he saw overhead signs that had a red cross on them. I took that to mean an X. Mr. Fedyunin said, after that, the Volkswagen changed lanes right in front of him, without signalling.

As a result, the Volkswagen ended up in front of him and behind the Audi. [ 40 ] In cross-examination, the claimant challenged Mr. Fedyunin’s testimony on this point. He asked how was it possible that the claimant could have been driving his Volkswagen down the lane indicated by Mr. Fedyunin. Mr. Fedyunin said, that particular lane of traffic is open when the overhead lights show a green or yellow indicator. It is only when there is a red X shown on the overhead lights that the particular lane cannot be used. Mr. Fedyunin reiterated that he saw the claimant, Mr. Fletcher, drive the Volkswagen on Mr.

Fedyunin’s left side. He further asserted he saw the Volkswagen being driven in the lane next to the centre solid yellow line. Mr. Fedyunin said the claimant was driving in the lane next to the solid yellow line and cut in front of Mr. Fedyunin’s car without signalling. Mr. Fedyunin said, at the point he was describing, if someone was driving from downtown Vancouver and attempting to drive toward Stanley Park, the centre lane next to the double yellow lines was open. But Mr. Fedyunin noted there was only one lane of traffic going towards the Lions Gate Bridge. [ 41 ] In cross-examination, Mr.

Fedyunin was shown several photographs taken by the DriveBC camera of the area of West Georgia Street immediately before the approach to Stanley Park. One photograph was taken at 8:48:03 A.M., the other was taken at 9:02:16 A.M. He agreed that there were no overhead lights visible on the photographs he was shown. However, he could not agree or disagree about whether the left lane going into the Causeway was open. [ 42 ] Mr. Fedyunin agreed that, in a second set of photographs shown to him, he could not see any overhead lights. However, Mr.

Fedyunin noted he could not recall what the sign that was behind him had shown and whether it showed the lane was open or closed. Mr. Fedyunin was shown another set of photographs. He agreed there were overhead lights depicted in those photographs. In one of the photographs, one of the overhead lights was green and the other on the left was yellow. [ 43 ] In his direct testimony, Mr. Fedyunin also testified about the immediate lead up to the collision and the collision itself. He said that the Volkswagen drove behind the Audi.

The Volkswagen decided to go faster and passed the Audi and the cars hit each other. [ 44 ] In direct, counsel for Mr. Waterson asked Mr. Fedyunin for clarification about what led to the collision. Mr. Fedyunin confirmed

that he was behind the Audi in the same lane. He then saw the Volkswagen coming up on his left and travelling fast. The Volkswagen changed lanes in front of him without signalling. Mr. Fedyunin said, then it happened. He expanded on that by saying that the Volkswagen travelled behind the Audi. As the two cars were getting closer to the moving barrier gates, the Volkswagen went to the left side of the Audi. It was travelling a little bit faster and it tried to pass the Audi. The Volkswagen did not have enough space between the barrier gates and the Audi. That is when it happened, the Volkswagen hit the Audi. Mr.

Fedyunin also said he thought that the Volkswagen hit a barrier gate and the Audi. After that, all three vehicles, the Volkswagen, the Audi and Mr. Fedyunin’s car pulled over to the side. The man from the Audi went up to Mr. Fedyunin and asked whether Mr. Fedyunin agreed that the Volkswagen had cut him (the Audi driver) off. [ 45 ] In cross-examination, the claimant asked Mr. Fedyunin whether he had spoken to the claimant before the trial. Mr. Fedyunin acknowledged he spoke to the claimant. Mr. Fedyunin agreed he told Mr. Fletcher that he saw Mr. Fletcher on the left side of his (Mr. Fedyunin’

s) car at one point when he was driving in the “middle lane”. The claimant put to Mr. Fedyunin that Mr. Fedyunin also told him that after the claimant had pulled into the left lane, the claimant had hit something. Mr. Fedyunin did not agree he said that. The claimant suggested to Mr. Fedyunin that, when they had spoken before the trial, Mr. Fedyunin told the claimant that he had pulled his Volkswagen out to pass the Audi and was cutting in and hit a barrier gate (which was down at that point) and the Audi. [ 46 ] Instead of answering the question as put to him by the claimant, Mr. Fedyunin explained what he saw.

Mr. Fedyunin said the claimant was driving behind the Audi. At one point, the claimant turned left and tried to drive faster than the Audi. At that point, the barrier gate was “open”. Mr. Fedyunin believed the Volkswagen did not have enough space between the Audi and the barrier gate. Mr. Fedyunin said he saw the Volkswagen go between the barrier gate and the Audi and that is when the collision happened. [ 47 ] Mr. Fedyunin said he saw the Volkswagen hit the first barrier gate, which is smaller (shorter) than the second barrier gate. Mr.

Fedyunin believed the Volkswagen had enough space to get by the first barrier gate, because it is smaller than the other barrier gates. Mr. Fedyunin apparently concluded (he used the word “decided”) that the claimant may have hit the second barrier. [ 48 ] The claimant questioned Mr. Fedyunin about his observations relating to the collision. He showed Mr. Fedyunin a photograph of the Volkswagen taken at the time. Mr. Fedyunin agreed that the photographs he was shown did not show any damage to the driver’s side of the Volkswagen. The claimant suggested to Mr.

Fedyunin that the Audi sped up when the Volkswagen pulled out and turned to the left. The Audi then hit the Volkswagen and then the claimant pulled the Volkswagen into the right lane. [ 49 ] Mr. Fedyunin said he did not know what to say in answer to that question. Mr. Fedyunin continued by saying that to make the move the claimant described the Volkswagen made, the Volkswagen would have needed to speed up as well. Mr. Fedyunin said he did not know if the Audi sped up at the same time. He could not say. However, he saw the Volkswagen go to the left side of the road. Mr.

Fedyunin said the claimant did not have a way of exiting from that side of the road if he continued, because he would hit the three traffic control barriers at that point. [ 50 ] The claimant suggested Mr. Fedyunin told him, when they spoke before the trial, that Mr. Fedyunin had seen the claimant pull the Volkswagen out to the left side to pass the Audi. Mr. Fedyunin also told him that the Volkswagen hit a barrier and then the Volkswagen pulled into the right lane. Mr. Fedyunin said, maybe it was not like that. [ 51 ] The claimant suggested that Mr.

Fedyunin told him the Volkswagen hit the barrier before it moved to the right lane. Mr. Fedyunin said he would say it had happened at the same time. According to Mr. Fedyunin, there were two collisions. One collision occurred when the Volkswagen collided with the Audi. The other collision occurred when the Volkswagen collided with a moving barrier gate. Mr. Fedyunin thought that the two collisions essentially occurred at the same time. He said he believed that the collision occurred at the second barrier. [ 52 ] The claimant showed Mr. Fedyunin a photograph dated March 2, 2017 (8:57:26 A.M.). Mr.

Fedyunin acknowledged a grey station wagon is depicted in the photograph. He said, if the grey station wagon did not merge (to the right), it would hit the barrier gate which protruded from a central concrete divider. Mr. Fletcher asked Mr. Fedyunin whether the area depicted in the photograph showed the area where the collision occurred. Mr. Fedyunin agreed it did. However, Mr. Fedyunin said he believed the collision with the Audi occurred at the second barrier depicted in that photograph. Rory Waterson [ 53 ] Mr.

Waterson, the defendant, testified that on March 2, 2017, he was driving towards the North Shore on West Georgia Street in Vancouver. The counterflow lane was in use by traffic coming from the Lions Gate Bridge into downtown. According to Mr. Waterson, there was only one lane of traffic going to the North Shore. Mr. Waterson said at one point he saw the Volkswagen in the counterflow lane trying to overtake everyone. He acknowledged he moved his Audi over so that the Volkswagen could not pass him to the left. Mr. Waterson acknowledged he made a finger gesture at the Volkswagen’s driver.

He said the Volkswagen’s driver was irate. Mr. Waterson said the traffic at the time was moderate but it was stop-and-go traffic. [ 54 ] Mr. Waterson testified that on the Causeway leading to the Lions Gate Bridge there are three automatic booms (a.k.a. traffic control barriers) to guide traffic into a single lane. He said that just before those three automatic booms, the Volkswagen accelerated from behind him and tried to cut in front of the Audi. That is when the Volkswagen sideswiped the front side of Mr. Waterson’s vehicle.

He said the left front quarter panel of his Audi came into contact with the right tire and bumper of the Volkswagen. Mr. Waterson said there was not much serious damage to his vehicle. He pulled his Audi slightly to the right to allow the Volkswagen to move. The Volkswagen and the Audi moved a few meters up ahead to the side of the road. Another driver who was behind the Audi moved over to the side of the road as well. [ 55 ] Mr. Waterson maintained the counterflow lane was in effect, so there was only one lane of traffic heading to the Lions Gate Bridge.

He said the left lane of traffic leading to the bridge was definitely closed at that time. He was aware that during other times of the day, vehicles can drive in that left lane to head towards the Lions Gate Bridge. His lawyer asked how he knew the status of the left lane leading to the Causeway. Mr. Waterson said that coming off Denman Street there are flashing lights in the morning. He said that only happens between 8:00 A.M. and 8:30 A.M. That was his guess. He said it was during the rush hour in the morning when the

counterflow lane on West Georgia Street was in effect. Mr. Waterson said there were also overhead lights showing with a red X that the lane was closed. [ 56 ] The claimant, Mr. Fletcher, cross-examined the defendant, Mr. Waterson. He suggested to Mr. Waterson that the first time Mr. Waterson had seen him was when the claimant signalled to use the left lane. Mr. Waterson said that was not correct. However, he acknowledged that he pulled over into the left lane and by doing so did not allow Mr. Fletcher to pass the Audi.

The claimant asked the defendant whether he felt it was within his rights to prevent the Volkswagen from using the left lane. The defendant said he was stopping the claimant from doing something illegal. Mr. Waterson acknowledged he was straddling the broken line between the right lane and the left lane leading to the Causeway. He also agreed that he had, to put it colloquially, given Mr. Fletcher the finger through the Audi window. Mr. Fletcher asked whether this was appropriate behaviour. The defendant answered by saying that someone was driving in a lane that they should not be driving in. [ 57 ] Mr.

Fletcher showed the defendant some photographs he had taken and as well played two short videos. He asked Mr. Waterson a number of questions. One of the questions related to a set of overhead lights that was depicted in one of the videos. He asked Mr. Waterson whether he saw any red X in the lane ahead, such as the one he had described in his direct evidence. Mr. Waterson said he did not see a red X in the video. The claimant suggested to the defendant that if there was no red X in the lane up ahead, that meant the lane was not closed.

The defendant did not agree. [ 58 ] One of the lights in the video was an amber light. Mr. Fletcher asked Mr. Waterson whether he was saying that the amber light indicated that the lane up ahead was closed. The defendant said he did not believe that was the intent of the amber light. [ 59 ] Mr. Fletcher cross-examined Mr. Waterson about what happened immediately before the collision. He asked Mr. Waterson whether, when Mr. Waterson was stopped in traffic and the claimant had pulled out to pass him, he remained stopped or whether he accelerated. The defendant asked Mr. Fletcher what he meant by “accelerate”.

The claimant said he meant, “speed up”. The defendant answered that considering the traffic was stop-and-go there was an acceleration and deceleration depicted throughout the video. He explained that technically there was acceleration taking place because the vehicle in front of him accelerated so that the traffic moved forward by accelerating and decelerating when the traffic slowed down. The defendant acknowledged he was saying he accelerated but pointed out that he clarified what he meant and put it in context. [ 60 ] Mr.

Fletcher cross-examined the defendant about whether the defendant had allowed him to pass once they had proceeded onto the Causeway. Mr. Fletcher was careful to note that he was not talking about the area up by the traffic control barriers. Specifically, Mr. Fletcher asked the defendant whether, when the defendant was stopped and the claimant pulled out to pass him, the defendant remained stopped or did he accelerate. The defendant said that he was moving slowly at the time but as far as he could recall he was moving because the traffic in front of him was moving forward. [ 61 ] Mr.

Fletcher cross-examined the defendant about two documents Mr. Waterson had compiled, depicting the area of the accident and the general area in that

section of downtown Vancouver/Stanley Park. The defendant said he prepared those documents the morning of the incident but could not recall when he forwarded the information to ICBC. The two documents both come from Google Maps, (2017). One of them was a regular (street-view) map format. The map format had been modified. The defendant added arrows to delineate certain locations and pop-up boxes of notations about what those locations were. The second map was a Google map of the area focused on/near the location of the three traffic control barriers. This map was on satellite-view.

The defendant altered the map by adding arrows and notations. He also added coloured oblongs to represent cars and several lines to show how the traffic control barriers would extend when opened (i.e. obstructing traffic). Mr. Waterson noted that the booms in the Google satellite-view map showed the traffic barriers as in an “open” position. So using Adobe PDF he indicated what they would look like when closed. [ 62 ] The claimant asked the defendant whether his representation of the post collision position of the Volkswagen and the Audi was correct. Mr.

Waterson said that looking at the document now he believed the point of contact with the Volkswagen was the Volkswagen’s right rear. So the point of contact with the Volkswagen would be slightly further back than where he indicated on his depiction of the position of the two vehicles. [ 63 ] The claimant showed the defendant photographs he had taken of the Audi. The defendant agreed that the left front corner of his Audi was intact.

However, he said that was not the point of impact. [ 64 ] The claimant also showed the defendant two photographs from DriveBC, one taken on March 2, 2017, at 8:57:26 A.M. and the other taken at 9:40:13 A.M. The defendant agreed that in both photos it appeared there was vehicle traffic in both lanes going into Stanley Park (toward the Lions Gate Bridge). He agreed that the traffic control barriers were in a down (a.k.a. closed) position. [ 65 ] The defendant agreed that in one of those DriveBC photographs there was one vehicle in the left lane.

In the other photograph there was a partial vehicle (i.e. it was not fully in the picture) travelling in the left lane. When pressed on this point, Mr. Waterson said he could not say whether the left lane was closed (as he had maintained in his direct testimony). However, given that the three traffic control barriers were in a “closed” position, he assumed the lane was closed. However, he could not say because there were no overhead lights depicted in the photograph. [ 66 ] Mr. Fletcher questioned the defendant about his interaction with Mr. Fedyunin. Mr.

Waterson said he did not tell the witness anything, and the witness did not tell him anything. The witness gave him his business card. Mr. Waterson said Mr. Fedyunin told him the claimant was driving like an idiot, then he gave Mr. Waterson his business card. Photographs [ 67 ] At trial, Mr. Fletcher submitted a number of photographs. Some of the photographs were taken by him on his cell phone while he was driving towards the Causeway. Many other photographs were taken on traffic cameras on DriveBC. Apparently, those cameras are positioned at the beginning of the Causeway and on West Georgia Street.

The photographs have the DriveBC name as well as a date and time stamp on the bottom of each photograph. Some of the photographs were produced as part of documents submitted by Mr. Fletcher at trial (Exhibit 1). Other photographs were contained in a different binder of materials (Exhibit 2) which Mr. Fletcher had provided to his

expert and later to the court. [ 68 ] When reviewing those photographs, which were not in any particular order, I considered them chronologically. The earliest photograph was dated March 2, 2017, at 8:45:29 A.M., and showed the portion of West Georgia Street leading up to Stanley Park. The latest photograph was dated March 2, 2017, at 9:40:13 A.M., and showed the area immediately before the beginning of the three traffic control barriers. Accordingly, the DriveBC photographs captured portions of that morning for approximately a 55-minute period.

The photograph stamped 8:45:29 A.M., depicted an area that appears to be between Gilford Street and Chilco Street on West Georgia Street. I have described road markings in the area in these reasons as having a Y-shaped solid line with lines down the top of the wide portion. This Y-shaped line ended at a narrow concrete median. The 8:45:29 A.M. photograph showed that southbound traffic was bumper-to- bumper. Three of the lanes going southward into downtown Vancouver had many cars in them.

Another lane, which I believe to be the counterflow lane, had some cars in it, but no cars close to the forefront of the photograph. There were traffic control signals overhead which, when viewed from the north looking south, showed green arrows on one of the southbound lanes in the forefront and red Xs on the counterflow lane.

A northbound lane in that photograph showed the northbound traffic going towards Stanley Park to be mainly in the third lane from the northbound curb lane going towards Stanley Park. [ 69 ] Other photos taken between 8:45:29 A.M. and 9:02:16 A.M., showed essentially the same pattern of traffic. In some of them, cars were depicted in the lane that I have described as the counterflow lane.

In others there were cars moving northbound, in the middle lane, which was chock-a-block full of cars heading towards Stanley Park. [ 70 ] There were no photographs from the DriveBC traffic cameras of the area leading to the Causeway where the initial interaction occurred between the claimant and the defendant. The only photographs/depictions were the ones taken by Mr. Fletcher on his cell phone (photographs and two videos). [ 71 ] The photographs taken of the Causeway, chronologically begin with one taken on March 2, 2017, at 8:46:06 A.M.

The series of photographs depicting the Causeway were taken by a DriveBC camera, facing into the Causeway and into Stanley Park. It captured the north and southbound traffic at the area where the three traffic control barriers were installed. The photographs showed the three traffic control barriers were “up”, namely, they were protruding into the lane of traffic immediately adjacent to the centre concrete divider. The photographs also show there was a significant difference in the length of the protruding arms of the barriers.

The first barrier was much shorter than the middle (2 nd ) and the last (3 rd ) barrier. Each of the three barriers had one or more large arrow signs pointing to the right side of the road heading to the Lions Gate Bridge. [ 72 ] Almost all of the photographs from the DriveBC cameras showed that the left lane of traffic at and leading up to the three traffic control barriers was empty of vehicles. Only two photographs showed a vehicle wholly or partially in the left lane that led directly into the traffic barriers. One is a photograph taken March 2, 2017, at 8:57:26 A.M.

This showed a silver station wagon, with a roof rack, at the forefront of the photograph in the left lane leading directly to the barriers. The other photograph, dated March 2, 2017, at 9:40:13 A.M., showed a portion of a black car apparently moving from the left lane leading to the barriers into the right lane of cars driving towards the Lions Gate Bridge [ 73 ] In addition to DriveBC camera photographs, Mr. Fletcher submitted photographs and two short videos he had taken using his cell phone. The photographs are undated and unstamped. However, Mr.

Fletcher testified he took them from his Volkswagen when he was driving behind the defendant’s Audi on the road leading to the Causeway. In two of those photographs, the Audi is at the forefront of the photo but some of the interior of the Volkswagen can also be seen. At a distance and around a gentle bend there was a set of lights. Those lights extended overhead and appeared to be over part of the road leading to the Causeway and to the Lions Gate Bridge. In one photograph, two light signals on the right side of the photograph are green, a third light signal is not seen.

In another of those photographs, two green light signals are seen on the right and a yellow signal is seen on the left. [ 74 ] A set of lights is seen much more clearly and prominently on the second short video. The second video was played in court and submitted on a USB drive. It showed the three light signals. The one on the left was flashing yellow. The other two lights on the right side and centre were green. Position of the parties Claimant’s submission [ 75 ] Mr. Fletcher submits he was not liable for the collision that occurred on March 2, 2017. He submits 100% of the fault lies with the defendant, Mr.

Waterson. He maintains there is nothing in the evidence led at trial that establishes he caused the collision. The claimant further maintains that the only reliable evidence before the court is that the defendant turned into the Volkswagen and caused the collision. The claimant, Mr. Fletcher, relies on his own evidence, the evidence of the expert and on video, photographs, and other documents he entered as exhibits during the trial. [ 76 ] With respect to his own evidence, Mr. Fletcher maintains the defendant was the aggressor and behaved inappropriately in the period leading up to the collision.

The inappropriate behaviour the claimant alleges is that the defendant blocked him from using the left lane by straddling two lanes. By doing so, the defendant did not give him the opportunity to pass. By straddling the broken white line, the claimant maintains, the defendant was in contravention of s.151 (

a) of the Motor Vehicle Act . [ 77 ] The claimant further submits that the defendant’s erratic behaviour made him feel unsafe travelling behind the defendant. Mr. Fletcher said he chose to “escape” when he felt there was no other alternative than to pass the defendant. He did this when the defendant stopped and presented him with the opportunity to pass. The claimant submits, at the time, there was ample space in front of both vehicles for him to complete a safe pass. The claimant submits that while he was passing the Audi, the defendant illegally sped up.

The defendant then steered his Audi to the left, into the claimant’s Volkswagen. That is what caused the collision. The claimant submits that s.151 (

a) and s.157(2) (

b) of the Motor Vehicle Act should be applied in assessing the situation. The claimant submits that a proper application of these sections should lead to a finding of liability for the collision against the defendant and not the claimant.

[ 78 ] The claimant, Mr. Fletcher, relies on the evidence of the expert civil engineer. Mr. Fletcher submits that the expert concluded there was a difference in the relative speeds of the two vehicles. This conclusion was reached by looking at the places damaged on both vehicles and the extent of the damage. Mr. Fletcher submits that the initial impact of the Volkswagen’s right rear wheel and the Audi’s left front wheel indicates that the majority of his vehicle, the Volkswagen, was ahead of the Audi at the time of impact. Mr. Fletcher maintains the defendant, who was driving the Audi, should have seen this. Mr.

Fletcher further submits that the expert’s report suggests that, if the defendant had not been driving faster than the Volkswagen, there would not have been a collision. He also maintains the expert’s report indicates that damage to both vehicles was not consistent with the Volkswagen passing the defendant’s Audi and cutting in front of the Audi. The claimant submits that the expert’s report contradicts diagrams provided by Mr. Waterson to ICBC, and the defendant’s testimony about how the collision occurred. [ 79 ] Additionally, the claimant made submissions about the reliability of Mr. Fedyunin’s evidence.

He maintains that Mr. Fedyunin’s recollection of events was not reliable and cited several examples. He questions Mr. Fedyunin’s testimony that the Volkswagen entered Mr. Fedyunin’s lane from the left and positioned itself in front of him. The claimant maintains that at the time the lane change occurred traffic was open to the opposite flow of traffic (in other words, the counterflow lane was going into the city). Accordingly, the lane change Mr. Fedyunin described could not have occurred. Moreover, the claimant maintains Mr.

Fedyunin’s testimony, that the claimant tried to enter into the left lane again, makes no logical sense. He also points to the fact that Mr. Fedyunin said the weather was clear and sunny, whereas photographs taken by the claimant show something different. The claimant maintains that Mr. Fedyunin’s recollection about the colour of arrows on the overhead signs was not accurate. He also submits that Mr. Fedyunin’s recollection that there were two impacts was incorrect because photographs tendered of the Volkswagen show there was no damage on the right side of the Volkswagen.

Additionally, the claimant suggests, without saying so directly, that Mr. Fedyunin’s testimony may have been influenced by what he was told by Mr. Waterson at the scene. The claimant submits that Mr. Fedyunin’s evidence was that Mr. Waterson had told him what happened and asked if Mr. Fedyunin agreed. Defendant’s submission [ 80 ] Mr. Waterson submits that 100% of the liability for the collision lies with the claimant, Mr. Fletcher. The defendant asserts the facts are simple. He acknowledges that a collision occurred. He notes, however, that it was not a rear-end collision.

Instead, it was what the expert described as essentially a sideswipe interaction. There was damage to both cars. The defendant’s vehicle was damaged on the left side, front quarter panel, and the claimant’s Volkswagen was damaged on the right side [ 81 ] The defendant reviewed the expert’s report and the photographs considered in that report, as well as photographs contained in the claimant’s documents. The defendant maintains those photographs show that the Volkswagen had not fully cleared the Audi when the impact occurred.

The defendant submits that the nature of the damage to the Volkswagen establishes that the Volkswagen was not in front of the Audi. [ 82 ] The defendant acknowledges that he and the claimant interacted in a negative manner while on the approach to the Stanley Park Causeway. However, the defendant points to the evidence of Mr. Fedyunin, an independent witness. The defendant submits that Mr. Fedyunin observed the behaviour of both drivers, who were both in front of him. Mr.

Fedyunin’s testimony confirmed that the claimant was driving along West Georgia Street aggressively and quickly. [ 83 ] The defendant acknowledges that the claimant questioned the weight to be given to the testimony of the independent witness. The defendant maintains that the logical explanation, which would accord with the independent witness’s testimony, is that the left lane of the road leading into the Stanley Park Causeway was closed. The defendant notes this is supported by the fact that there was not a long line of vehicles in the left lane.

Moreover, the defendant argues, notwithstanding the claimant’s questioning of Mr. Fedyunin, the independent witness maintained throughout that the claimant came along the side of the defendant’s vehicle and cut in front of the Audi in the area by the traffic control barriers. The defendant submits I should place significant weight on Mr. Fedyunin’s testimony because he is independent of either of the two parties and has no interest in the proceedings. [ 84 ] The defendant notes that immediately before the incident, the claimant was behind the defendant.

He then changed to the left lane, accelerated and did not signal his intention to return to the right lane. The defendant submits the onus is on the driver who initiates a lane change to do so in a safe manner. In this regard, the defendant relies on s.151 (

c) of the Motor Vehicle Act . That

section provides that a driver on a laned roadway must not drive from one lane to another without first signalling his or her intention to do so. [ 85 ] The defendant maintains that in changing lanes the claimant at no time had the right-of-way. He was aware that another vehicle was present in the right lane. The defendant submits that the claimant’s explanation that he was concerned for his safety and the only way to escape was to overtake the Audi, is simply not credible.

The defendant suggests that the claimant’s explanation that he was trying “to escape” from the defendant is not plausible because the evidence before the court depicts a long line of heavy traffic heading into the park. Moreover, that traffic was travelling in a single lane. The defendant points out that by overtaking the Audi all Mr. Fletcher would have accomplished was to place himself in front of the Audi for some period of time rather than escaping from the Audi. [ 86 ] The defendant maintains that at all times he was the dominant driver.

He was established in the right lane and there was no evidence that he was trying to change lanes. The defendant notes that the claimant suggested the defendant straddled the roadway to prevent the claimant from going around him in an earlier part of their interaction. However, the defendant notes the claimant did not put to the defendant that he had purposely sped up just before the collision. The defendant never admitted to accelerating just before the collision.

The defendant said that he “accelerated” in his lane to move along with the traffic. [ 87 ] Counsel for the defendant submits that, irrespective of the status of the left lane going into the Causeway, the claimant breached the Motor Vehicle Act . If the left lane leading to the Causeway was closed to traffic, then s.157(1) of the Motor Vehicle Act applies. That

section provides that while overtaking a vehicle, the driver must cause the vehicle to pass to the left of the other vehicle at a safe distance. Additionally, the driver of the overtaking vehicle must not cause or permit the vehicle to return to the right side of the highway until it is safely clear of the overtaken vehicle. [ 88 ] On the other hand, if the left lane was open to traffic, then s.151 of the Motor Vehicle Act applies. That

section provides that

where a driver is driving on a laned roadway, the driver must not drive from one lane to another when there is a broken line between thelanes, unless the driver has ascertained that movement can be made safely and will in no way affect the travel of another vehicle.Moreover, the defendant submits, even if the left lane was governed by an amber light, s. 151 applies to the manoeuvres that wereexecuted by the claimant. The defence acknowledges that an amber light is not an absolute prohibition, but is a warning that a vehicleshould not be in that lane.

The defence says, however if that were the case, s.151 would nevertheless apply. [89] The defendant acknowledges that he did not object to the expert’s report. However, the defendant notes that the expert was not ina position to say which vehicle crossed over to the other side. Further, the expert could not comment on the relative position of the twovehicles at the time of the collision. The defendant says this is important because it is the key factor in determining liability and relates towhere the collision occurred.

The defendant submits that the expert’s report does not assist this Court in coming to a finding on liability. [90] The defendant submits that if Mr. Fletcher is found 100% liable for the commission, the court should award modest costs in therange of 20 hours ($2200). Applicable legal principles Credibility [91] The central issue in this case requires me to assess credibility. Accordingly, I will briefly review some general principles thatapply to the assessment of witness credibility. [92] The classic statement about how a judge ought to resolve issues of credibility is found in Faryna v.

Chorny, [1952] 2 D.L.R. 345.In that case, O’Halloran J.A. noted that the validity of evidence does not depend on the fact that it remains uncontradicted or on the factthat a judge may have remarked favourably or unfavourably on the evidence or the demeanour of the witness. These factors are elementsto consider in testing the evidence, but ultimately they are subject to whether the evidence is consistent with the probabilities affectingthe case as a whole and shown to be in existence at the time. [93] In Erickson v.

Sibble, 2012 BCSC 1880, Balance J. succinctly set out the principles and factors judges ought to consider in theassessment of credibility. She noted the following: [6] Determining the credibility and reliability of a witness is fundamental to the judicial task, and yet it is notoriously difficult. It hasbeen recognized that the determination is more an art than a science, and is not a purely intellectual exercise. The factors involved can bechallenging to verbalize: R. v.

R.E.M., 2008 SCC 51 at para. 49. [7] A clarifying passage summarizing the factors to be considered in the art of the assessment is found in Bradshaw v. Stenner, 2010BCSC 1398 at para. 186: Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness and theaccuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), (SCC), 59 S.C.R. 452, 50D.L.R. 560 (S.C.C.)).

The art of assessment involves examination of various factors such as the ability and opportunity to observeevents, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’ evidenceharmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and thedemeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont. H.C.); Faryna v.

Chorny, [1952] 2 D.L.R. 152(B.C.C.A.); R. v. S.(R.D.), (SCC), [1997] 3 S.C.R. 484 at para. 128 (S.C.C.)). Ultimately, the validity of the evidencedepends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at thetime (Faryna at para. 356). [8] It is accepted as a general rule that judicial assessment of credibility starts on the footing that the witness is telling the truth: seeHalteren v. Wilhelm, 2000 BCCA 2. However, truthfulness and reliability are not always one and the same.

A witness may sincerelybelieve that she is telling the truth, but lack the sufficient memory, perspective, cognitive ability or narrative capacity to give reliabletestimony. Alternatively, a witness “may unconsciously indulge in the human tendency to reconstruct and distort history in a manner thatfavours the desired outcome”: Hardychuk v. Johnstone, 2012 BCSC 1359 at para. 10. And there is always the possibility that a witnessmay simply choose to lie for whatever reason. [94] In R. v.

Gagnon, 2006 SCC 17, the Supreme Court of Canada recognized that a judge’s assessment of credibility is not a science.It further noted that it is difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge fromwatching and listening to witnesses and attempting to reconcile the various version of events (see paragraph 20). [95] In assessing credibility, a judge must not only consider whether a witness is being honest but also whether the evidence of thewitness is reliable. In Khan v.

School District No. 39, 2021 BCSC 49, the court noted that truthfulness and reliability are not one and thesame. Evidence given in a trial can raise issues about veracity and accuracy. Veracity relates to a witness’ sincerity and truthfulness.Accuracy relates to the witness’ ability to accurately observe, recall, and recount the events in issue. A witness who is not truthful cannotgive reliable evidence on the same point. However, a credible witness may give unreliable evidence. Motor Vehicle Act [96] The following provisions of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, are relevant in this case.

Driving on laned roadway 151 A driver who is driving a vehicle on a laned roadway (

a) must not drive it from one lane to another when a broken line only exists between the lanes, unless the driver has ascertained that

movement can be made with safety and will in no way affect the travel of another vehicle, (

b) must not drive it from one lane to another if that action necessitates crossing a solid line, (

c) must not drive it from one lane to another without first signalling his or her intention to do so by hand and arm or approved mechanical device in the manner prescribed by sections 171 and 172, (

d) when approaching an intersection intending to turn left must drive the vehicle in the centre lane or in the lane nearest the centre of the roadway on the right hand half of the highway, (

e) when approaching an intersection intending to turn right must drive the vehicle in the lane nearest to the right hand side of the roadway, (

f) must not pass a vehicle on the left if that action necessitates driving on that part of the highway designated for travel in the opposite direction, and (

g) if a traffic control device directs slow moving traffic to use a designated lane, must when driving slowly drive the vehicle in that lane only. Duty when overtaking 157

(1) Except as provided in

section 158, the driver of a vehicle overtaking another vehicle (

a) must cause the vehicle to pass to the left of the other vehicle at a safe distance, and (

b) must not cause or permit the vehicle to return to the right side of the highway until safely clear of the overtaken vehicle.

(2) Except when overtaking and passing on the right is permitted, a driver of an overtaken vehicle, (

a) on hearing an audible signal given by the driver of the overtaking vehicle, must cause the vehicle to give way to the right in favour of the overtaking vehicle, and (

b) must not increase the speed of the vehicle until completely passed by the overtaking vehicle. Principles from case law [ 97 ] In a recent decision, Postic v. Demarco , 2020 BCSC 1950 , MacDonald J. had to determine who was liable in a case where a collision occurred on the Port of Vancouver property. The circumstances of that case are different from the ones before me. Additionally, in that case, the collision was captured by a surveillance camera. However, MacDonald J. reviewed certain principles relevant to the case before me. Those are:

a) Expectations - A driver of a vehicle has a right to assume that another driver will obey the applicable traffic laws.

b) Duty of driver - A driver has a duty to meet the standard of care imposed both at common law and pursuant to the Motor Vehicle Act .

c) Statutory duty - A breach of a statutory duty is not dispositive of the question whether or not the breaching party is liable in negligence. However, violation of a statutory duty may well be evidence of negligence. A statutory duty affords a specific and useful standard of reasonable conduct.

d) Overtaking situation - Both an overtaking and an overtaken driver have an obligation to proceed in a reasonable and safe manner. In Eccleston v. Dresen , 2009 BCSC 332 , the court explained that there is no dominant and servient driver in an overtaking situation. The respective obligations of both drivers are to be assessed in relation to the circumstances they faced, including the question of who had a better opportunity to avoid the collision.

e) Better opportunity - The driver with the better opportunity to see the potential for collision has a correspondingly greater opportunity to avoid it. [ 98 ] Court cases have also referred to other factors that may be relevant to an assessment of liability:

a) Onus/burden of proof - The burden of proof, generally speaking, refers to a party’s responsibility to present evidence to prove their case. Additionally, there is a heavy onus on the driver of a vehicle changing lanes on a highway, and perhaps even more so in the middle of an intersection, to assure that the movement can be made safely (see Rohmann v. Moffat , [1996] B.C.J. No. 148 . B.C.S.C.).

b) Standard of proof - The standard of proof refers to the degree to which a party must prove its case in order to be successful. The standard of proof in civil cases is on a balance of probabilities. In F.H. v. McDougall , 2008 SCC 53 , the Supreme Court of Canada ruled that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. However, it noted that context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do not change the standard of proof.

c) Statutory provisions v. common law duty of care - Although statutory provisions such as those found in the Motor Vehicle Act provide guidelines for assessing fault in motor vehicle accident cases, they do not provide a complete legal framework. In Salaam v. Abramovic , 2010 BCCA 212 , at paragraph 21 , Groberman J.A. writing for the court stated: In the end, a court must determine whether, and to what extent, each of the players in an accident met their common law duties of care to

other users of the road. In making that determination, a court will be informed by the rules of the road, but those rules do not eliminate the need to consider the reasonableness of the actions of the parties. This is both because the rules of the road cannot comprehensively cover all possible scenarios, and because users of the road are expected to exercise reasonable care, even when others have failed to respect their right of way. While s.175 of the Motor Vehicle Act and other rules of the road are important in determining whether the standard of care was met, they are not the exclusive measures of that standard.

d) Interpretation of s.151(a) - In Dhaliwal v. Randhawa , 2016 BCSC 2005 , Butler J. reviewed s.151 (

a) of the Motor Vehicle Act . In

summary he wrote, that

section imposes a duty on drivers not to change lanes unless they can do so safely. A driver who changes lanes when it is not safe, not only breaches the duty imposed by that

section of the Act , but is also in breach of his common law duty to take reasonable care (citations omitted) (see paragraphs 13 and 14). Analysis [ 99 ] The evidence given by the two parties in this case is diametrically opposed with respect to the collision and the actions taken by the claimant and the defendant immediately prior to the collision. Their viva voce evidence about the collision itself differs in a number of significant respects.

Moreover, there is no supporting evidence, such as a photograph or a video, which directly captured which lane the vehicles were in and the ultimate positioning of the vehicles on impact. The claimant submitted two short videos he had taken, as well as several photographs. I will comment on these exhibits further in these reasons. However, the videos and the photographs taken by the claimant were taken well before the actual collision. They do document the area and some of the initial encounter between the claimant and the defendant.

However, they do not directly assist in determining what happened at the ultimate scene of the collision. [ 100 ] Additionally, the evidence provided by the expert witness in his report and acknowledged in his viva voce evidence at trial does not resolve, with any precision, the specific issue of liability. The expert candidly noted in his report that due to lack of on-scene evidence, it cannot be determined which vehicle crossed the divided white line into the other driver’s lane to cause the contact. [ 101 ] At trial, the defendant presented documents which included an email exchange between Mr. Sdoutz and Mr.

Fletcher in March 2017. Mr. Fletcher wrote to Mr. Sdoutz on the morning of March 15, 2017. He provided background information, from his perspective, regarding what had occurred on March 2, 2017. He believed the damage to both vehicles clearly told the story of what really happened and showed evidence of the other driver accelerating and turning into the claimant. Mr. Fletcher explained to Mr. Sdoutz that he was looking for an expert report that could be used in Small Claims Court to prove that the other driver accelerated from a standstill position, thereby causing the collision. [ 102 ] Mr.

Sdoutz wrote back to Mr. Fletcher the same day. He noted all the damages showed was that the Audi was moving forward when it contacted Mr. Fletcher’s Volkswagen and the Audi was moving faster than the Volkswagen. Mr. Sdoutz clearly stated the damages did not show that the Audi swerved into the Volkswagen. He further noted there was no way to reconstruct, from the photographs he was given, that the Audi had been stationary, had accelerated from a stop, and had swerved left to impact.

The only way to tell that, was if photographs had been taken of the two vehicles at the incident scene immediately after the collision and before the vehicles were moved out of the way of traffic. [ 103 ] In light of the expert witness’ report and testimony in this case, I am satisfied there is no single reliable basis on which to make conclusive findings of fact about the cause of the collision. Accordingly, I am left to assess the testimony of the two principal parties and that of Mr.

Fedyunin, the independent witness, to make findings of fact about what happened immediately prior to the collision between the Audi and the Volkwagen. [ 104 ] Mr. Fletcher appeared to be well prepared. He had obviously taken a number of steps to obtain and present what he believed to be relevant evidence. He expressly testified that on the morning of the collision he was in no rush. He believed he was the victim of an aggressive driver, namely, Mr. Waterson. Accordingly, he decided to change lanes in order to move away from Mr. Waterson because he no longer felt safe driving behind him.

Moreover, he maintained there was sufficient room to pass and he was one or two car lengths ahead of the defendant when he felt the collision. [ 105 ] The case law draws a distinction between credibility and reliability. In this case, I find Mr. Fletcher did his best to explain his recollection of events that day and his belief and conclusion, namely, that he had not caused the accident and was not responsible for the damages that resulted. However, the issue I must address is the accuracy and reliability of Mr.

Fletcher’s recollection and the probability, given the totality of the evidence, that the collision occurred as he described. [ 106 ] Mr. Fletcher clearly stated he was not in a rush on the morning of March 2, as he was driving to Cypress Mountain. He also made statements that implied or clearly noted that he was driving in a safe manner. As well, the explanation he gave for changing lanes initially and for later attempting to pass Mr. Waterson was based on his concern about his safety given what he described as Mr. Waterson’s escalating behaviour.

However, those assertions are belied by evidence led at trial, namely:

a) The independent witness, Mr. Fedyunin, testified that Mr. Fletcher drove close to him and was driving faster than anyone else on the road at that time.

b) Mr. Fedyunin also testified that the Volkswagen driven by Mr. Fletcher changed lanes right in front of him without signalling. That change of lanes brought Mr. Fletcher directly behind the Audi. Mr. Fedyunin was challenged on this point in cross-examination, but he maintained the claimant was driving in the lane next to the solid yellow line and cut in front of his car without signalling.

c) The audio on the video (specifically video number 1) captured Mr. Fletcher saying (over music playing in the background) “Two lanes”; “There’s two lanes”. These statements were made in what can only be described as an exasperated, if not angry, tone of voice which can clearly be heard over the music. In video number 2, his voice is heard again. The song playing in the background was finished and an announcer was speaking in the background. A voice that I find to be Mr. Fletcher’s is saying: “Two lanes!”,“Two lanes!” Mr. Fletcher’s tone of voice is again clearly exasperated.

d) DriveBC photographs of traffic on West Georgia Street and traffic just before the three traffic barriers between March 2, 2017,

8:45:29 A.M. and March 2, 2017, 9:40:13 A.M., show that the vast majority of motorists were lined up in what was largely bumper-to- bumper traffic on West Georgia Street. At the three traffic control barriers on the Causeway, the photographs show most vehicles lined up in bumper-to-bumper traffic and fewer vehicles that had some distance from the vehicles in front or behind them. However, traffic does not appear to be free flowing. Moreover, the photographs taken at the Causeway on the DriveBC traffic camera only show two instances of a vehicle travelling in the left lane heading towards the Lions Gate Bridge.

That is because that lane was closed at the three traffic control barriers, so there was only one lane of traffic going into the Causeway and heading to the North Shore.

e) Mr. Fletcher said the reason he moved was because he did not feel safe driving behind the defendant. That explanation does not ring true. I am satisfied that the traffic that day, in the lane where the claimant and the defendant were driving their respective vehicles, was largely bumper-to-bumper. Accordingly, it is questionable how far away Mr. Fletcher could have moved from the defendant.

f) Mr. Fletcher’s own actions belied his stated concern for safety. He moved in and out of traffic several times, first to move in front of Mr. Fedyunin, second to attempt to initially pass the Audi and then a third time to pass and move away from the defendant near the three traffic control barriers. This occurred roughly between Chilco Street and the entrance into the Causeway. Moving in and out of traffic in what could fairly be called part of the morning rush hour, while not necessarily unsafe, shows a lack of consideration for other drivers waiting in line. Additionally, Mr.

Fletcher used his cell phone to take two short videos and several photographs. His actions in this regard, although apparently brief, took his attention away from his main function, namely, driving his vehicle. All of this occurred while his 8-year-old son was in the Volkswagen with him. [ 107 ] Mr. Waterson, the defendant, did not give as fulsome a description, and appeared not to have as fulsome a recollection of the actual collision. However, he was candid about the fact that he had blocked Mr. Fletcher’s attempt to move the Volkswagen to the left lane when Mr. Fletcher first tried to do so. Mr.

Waterson was also candid about the fact that he made a rude finger gesture at Mr. Fletcher. He tried to explain it away as being based on his belief that he was stopping the claimant from doing something illegal. I found his justification self-serving. [ 108 ] Mr. Waterson maintained that the left lane was closed. He was in

part incorrect about this. I am satisfied on the basis of the evidence I heard, that between approximately Chilco Street, near the Y-shaped markings on the road on West Georgia Street up to the three traffic control barriers, the left lane leading to Stanley Park and North to the Lions Gate Bridge was usable. However, I also find that the majority of drivers, on that day, were lining up in a single file and not using the portion of the left lane that was open. [ 109 ] Mr. Waterson acknowledged that an amber light seen on one of the videos did not indicate that the lane up ahead was closed.

Additionally, in his evidence in cross-examination, he acknowledged that he had been mistaken in how he had depicted the angle of impact between the Volkswagen and the Audi. [ 110 ] Mr. Waterson was steadfast and internally consistent in how he described the collision itself and the circumstances immediately leading up to the collision. He said the traffic was stop-and-go. When necessary, he would accelerate and follow the vehicle in front of him. Mr. Waterson denied speeding up when the claimant attempted to pass him immediately before

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