William Spearing - v. -, 2015 SKPC 115

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 201 5 SKPC 115 Date: August 4, 2015 File: 102/15 Location: Regina Saskatchewan _____________________________________________________________________________ Between: William Spearing - and - Daniel Leonard Marcy Gotchia For the Plaintiff Dan Leonard For the Defendant JUDGMENT P. DEMONG, J Introduction [ 1 ] On or about November 26, 2014, a motor vehicle accident occurred at a gas pumping station at 1609 Halifax Street in Regina. [ 2 ] The plaintiff, Mr.

Spearing, and his passenger, Margaret Miriam, have presented evidence suggesting that the defendant Daniel Leonard backed his van up and struck the right side of the front bumper of the Spearing vehicle while it was parked.

[ 3 ] Mr. Leonard, and his witness, Trevor Ferleyko, deny this and state that the Leonard vehicle was parked and waiting to get gas when the Spearing vehicle drove into the rear bumper of Mr. Leonard’s van. [ 4 ] The differing versions of the accident are diametrically opposed. Either the plaintiff and his witnesses are misrepresenting almost every fact that they swore to, or Mr. Leonard and his witness are. The two versions of the accident do not allow for any shading of grey between a collision that is either black or white. This trial must be decided on which of the witnesses are more credible. [ 5 ] Mr.

Spearing is the plaintiff and carries the burden of proof in these proceedings on a balance of probabilities. I am satisfied that if Mr. Leonard drove his vehicle backwards into Mr. Spearing’s parked vehicle then he was negligent and entirely at fault for the accident. If Mr. Spearing drove his vehicle into the back of Mr. Leonard’s vehicle, then he was negligent and entirely at fault for the accident.

In the two different versions presented to the Court, there are no ameliorating circumstances which would operate to obviate a finding that either party would fall below the standard of care of a reasonable and prudent driver if one, or the other, drove their respective vehicles into the parked vehicle of the other. The Evidence [ 6 ] Mr. Spearing is of advanced years. He tells the Court that he drove his 2011 Subaru Outback to the gas pumping station located at 1609 Halifax Street. Vehicles were backed up and he drove into the lot and brought it to a stop somewhat less than ten feet from the back fender of Mr.

Leonard’s van. He was parked at a slight angle to the van such that his car would be slightly to the right and behind Mr. Leonard’s van. He concedes that at this angle he could not see the driver’s front door of the van. He concedes that at no time did he see Mr. Leonard actually driving or sitting in or getting out of the van at any relevant time. [ 7 ] Mr. Spearing says that he brought his vehicle to within somewhat less than ten feet of the van’s back fender and then put his vehicle into park and waited for a few minutes waiting for his turn to move forward to the gas pump.

Suddenly, he says, the van roared backward and struck the right front bumper of his vehicle. He later conceded that the speed was not so great, perhaps six miles per hour or thereabout. Mr. Spearing stayed in his vehicle when, he says, Mr. Leonard came around from the driver’s side of the van and came to talk to him at which time they exchanged information, and shortly thereafter each party went about their business. [ 8 ] When Mr. Spearing reported the accident to SGI it became apparent that he had been operating his vehicle on an expired registration.

He had overlooked transferring the registration from his old car in or about September of the year before. As a result, Mr. Spearing came to this Court seeking the full value of the cost of repair of his vehicle, rather than the more traditional claim, which is to seek recovery of the insurance deductible that might have to be paid by an individual following an accident. [ 9 ] Ultimately SGI advised Mr. Spearing that Mr. Leonard had presented a different version of how the accident occurred and in the face of these two conflicting versions, SGI had determined each of Mr. Spearing and Mr.

Leonard to be 50% responsible for the accident. Mr. Spearing took issue with this decision and hence, his lawsuit against Mr. Leonard. [ 10 ] In cross-examination Mr. Leonard was at pains to try to convince Mr. Spearing that he had driven into the back of the parked Leonard van. He predicated his questioning of Mr. Spearing by suggesting that Mr. Leonard had been outside of his van assisting another motorist with a new credit card machine that had been installed onto the pumps, and that in fact, another car was trying to jump the line by sneaking between the Spearing vehicle and the Leonard van.

The suggestion of course is that Mr. Spearing would not tolerate such a move and drove his car forward to stop this from occurring, overshot the distance, and struck the Leonard van. [ 11 ] Mr. Spearing responded with what I found to be a spontaneous and heartfelt umbrage to this assertion. His response started with a bit of a dressing down of Mr. Leonard. His words were to the effect of “Mr. Leonard, this is a court of law, we are supposed to tell the truth”. Mr. Spearing then affirmed that no, he did not see another car trying to get in front of him, and that no, there was no other car. [ 12 ] Following Mr.

Spearing’s evidence and the location of the damage to the Spearing vehicle, I am satisfied that in fact, Mr. Spearing’s car was at an angle to the van such that if the van backed up it would be difficult to see another car behind it. I also conclude that at the

angle to which the vehicles were situated, Mr. Spearing would not be able to see the driver’s side front door of the van. [ 13 ] Margaret Miriam was the front seat passenger in the vehicle operated by Mr. Spearing. They are old friends. I had made an order for exclusion of all witnesses. She did not have the opportunity to listen to Mr. Spearing’s evidence. Ms. Miriam indicated that Mr. Spearing had pulled up about four feet behind the Leonard van and that Mr. Spearing had put his vehicle into park.

They had been waiting for a few minutes when suddenly she saw the rear tail lights of the van go on and the van started to back up. She exclaimed “oh my God” and the van hit the right front corner of the Spearing vehicle. She says that she exited the Spearing vehicle to look at the damage and that Mr. Leonard came from around the driver’s side of the van and said “this is all I need ... I didn’t see you there, I thought you were in the other lane”. Mr. Leonard’s cross-examination was limited. He asked her if she had seen him standing in front of his van. No, she had not. I found Ms.

Miriam to be a confident, no nonsense witness. She did not embellish her testimony. Her assertions were not in any way challenged in cross-examination. She was asked to comment on the existence of the presumed pushy other vehicle that was apparently trying to sneak between the Spearing and Leonard vehicles. She saw no such vehicle. [ 14 ] Mr. Leonard took the stand. He said that he attended at the gas pumps and had parked his van while his employee, Mr. Ferleyko, waited in the van.

He was waiting for his turn to gas up but the operator of the vehicle in front of him was having trouble with the new credit card machines that had been installed on the pumps. He says that he was helping this gentleman with the machine when he heard the collision. He did not see the collision. He said that he came around the passenger’s side of the van and talked directly to Mr. Spearing. He says he had no conversation with Ms. Miriam. He says that Mr. Spearing “apologized for the accident and all that”, and that they then exchanged information and went on about their business.

He made no mention of the presumed other driver that had tried to cut in line. He denies that he said anything to Ms. Miriam, either about not seeing them or at all. [ 15 ] In cross-examination, Mr. Leonard denied that Mr. Ferleyko was driving the van at any time, He says that he has no licence and there would be no reason for him to drive the van. I was curious about the other vehicle. The one that was trying to push into line. I asked Mr. Leonard how he could have seen this happen if his eyes were facing in the opposite direction while presumably helping another driver with the credit card machine. Mr.

Leonard conceded that he had never seen another vehicle. Rather, he says, he was told of this occurrence by “another guy” who was standing by the pumps and watched this occur. I am bothered by this bit of testimony. If another car was present, why didn’t Mr. Leonard talk to this other driver immediately following the incident and obtain information from him? That driver would have been there at the same time that Mr. Leonard came to the back of his van to investigate the damage. If “another guy” was watching this occur, why didn’t Mr. Leonard bring him to Court to testify?

I ask this because at the start of the trial, Mr. Spearing conceded that he had never run a trial, Mr. Leonard had stated that he had. Presumably, and when faced with a lawsuit against him, Mr. Leonard would know about and understand the importance of marshalling witnesses to advance his version of the events in question. [ 16 ] Mr. Leonard called Mr. Ferleyko to testify. He too had been subject to my order for exclusion of witnesses. Mr. Ferleyko could not recall the time of the accident but says that he was sitting in the passenger side front seat of the van when he heard, or rather felt, a bump.

He said that at the time Mr. Leonard was helping the operator of the vehicle in front of them with the credit card machine. He said that he exited the van and went and got Mr. Leonard. When asked why he had to get Mr. Leonard, he appeared flustered and stated, rather, that Mr. Leonard came back to investigate the crash... presumably of his own accord? He says that Mr. Leonard came back to the crash site from the driver’s side of the van. (This is the same evidence as Mr. Spearing and Ms. Miriam but contradicts Mr. Leonard’s evidence.) He says that he also went to the back of the van to investigate.

He says that Mr. Leonard had a conversation with each of Ms. Miriam and Mr. Spearing. He says that he was a couple of feet away from the conversation. He has no recollection whatsoever as to the nature of the conversation. He was not asked about the other vehicle that presumably had tried to push into line. [ 17 ] I was not impressed with Mr. Ferleyko’s evidence. He gave his evidence in a halting and uncertain manner. As he gave his evidence to questions put to him by the Court, he would furtively glance at Mr. Leonard, as if he was looking for affirmation to his answers.

I also find it most unusual that he would have to go and get Mr. Leonard following the incident, and then subtlety change that evidence. I find it most unusual that he could not recall or did not hear anything that was said between the parties when he was only a couple of feet away. [ 18 ] During final argument, Nancy Gotchia, the daughter of Mr. Spearing assisted him. A discussion ensued between Mr. Leonard and Ms. Gotchia. Why, she asked, would Mr. Leonard have attempted to contact Mr. Spearing by telephone to try to settle this matter if he did not think he was at fault?

This was not in the nature of cross-examination, but Mr. Leonard responded by denying that he did any such thing. He stipulated to the Court that “[he] never tried to settle”. He says he only contacted Mr. Spearing to ask him why his vehicle was not registered. Ms. Gotchia asserted that she had heard the recorded message and invited the Court to conclude that Mr.

Leonard was lying. [19] I allowed an adjournment of the trial in order to have Ms. Gotchia attempt to prove the existence of the telephone conversation andits contents. On the return date, the plaintiff, by subpoena called Linda Mackin, the manager of Sask Tel’s corporate security. Ms.Mackin confirmed that she had done a search of incoming calls to the Spearing residence from Mr. Leonard’s telephones. She could notcomment on the contents of the call but there was one call originating from one of Mr. Leonard’s phones, to Mr. Spearing which lastedfor 13 seconds on or about December 10, 2014. Mr.

Leonard did not dispute this nor did he cross-examine Ms. Mackin. [20] Ms. Gotchia then took the stand and confirmed that she had attended at her father’s residence in or about April and was goingthrough his telephone messages and she replayed and heard Mr. Leonard’s phone call. She insisted that Mr. Leonard’s message wasalong these lines... “can you give me a call... we need to settle this”. Mr. Leonard chose not to cross-examine Ms. Gotchia. I observedMs. Gotchia carefully as I listened to her evidence.

While there is no doubt that she is interested in proving that her father win, and thathis evidence be accepted as truthful, she presented as forthright and sincere. She did not try to elaborate on the contents of the phonerecording (something she could have attempted to do if she was a dishonest person). I am satisfied that she simply stated what sherecalled to the best of her ability. The Law [21] Countless courts have struggled with providing guidance on how to assess credibility. There is no comprehensive list of factors toconsider.

In Snider v Karpinski, 2009 SKQB 394, Madame Justice Wright spent considerable time dealing with the issue of credibilityand I find great comfort in her analysis in reaching my conclusion in this case. Her analysis at paragraphs 103 to 105 is reproducedbelow: [103] As noted, while the facts of this case raise several important issues, the one at the forefront is that of the credibility of the parties.The assessment of credibility is not a science and, as pointed out in R. v.

Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17 at para. 20, it is notalways possible to “articulate with precision the complex intermingling of impressions that emerge after watching and listening towitnesses and attempting to reconcile the various versions of events”. Assessing credibility is “a difficult and delicate matter that doesnot always lend itself to precise and complete verbalization”. (R. v. R.E.M., [2008] 3 S.C.R. 3, 2008 SCC 51 at para. 49). There is norequirement that a trier of fact must accept or reject the evidence of a witness in its entirety.

None or part of a witness’ evidence may beaccepted, and different weight may be attached to various parts of the testimony. (R. v. D.R., (SCC), [1996] 2 S.C.R.291 at para. 93 and R. v. J.H. (2005), (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.) at para. 44). [104] There are, nonetheless, certain principles, or tools, that have emerged from the jurisprudence that can assist the trier of fact whenassessing credibility. These factors were summarized in Novak Estate (Re), 2008 NSSC 283, 269 N.S.R. (2d)84 (N.S.S.C.) at para. 36:

a) The ability to consider inconsistencies and weaknesses in the witness’ evidence, which includes internal inconsistencies, priorinconsistent statements, inconsistencies between the witness’ testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness’ testimony.

c) The ability to assess whether the witness’ testimony is plausible or, as stated by the British Columbia Court of Appeal in Farynav. Chorny, (BC CA), [1951] B.C.J. No. 152, 1951 CarswellBC 133, it is “in harmony with the preponderance ofprobabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions”, but indoing so I am required not to rely on false or frail assumptions about human behaviour.

d) It is possible to rely upon the demeanour of the witness, including their sincerity and use of language, but it should be done withcaution (R. v. Mah, [2002] N.S.J. No. 349, 2002 NSCA 99, paras. 70-75).

e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider themotive that witnesses may have to fabricate evidence. R. v. J.H., (ON CA), [2005] O.J. No. 39 (Ont. C.A.), paras. 51-56.

[105] In addition to the foregoing, there are other factors, or subsets of the foregoing, that I have considered when assessing the credibility of the parties and their witnesses. Of importance is whether or not the witness actually observed the factual matters underpinning his or her testimony. And, while the demeanour of a witness is not per se a reliable measure of credibility, that witness’ ability to provide evidence in a candid and straightforward manner is worthy of note.

Just as worthy of note is that witness’ tendency to be evasive or argumentative, and his or her ability to make admissions against self-interest, as opposed to repeated self-serving statements. Conclusion [ 22 ] As I have alluded to earlier, I found the demeanour of each of the plaintiff’s witnesses to be honest, straightforward, candid, and direct. Mr. Spearing fairly conceded some aspects of his testimony regarding the duration of the time that he waited and the distance between the two vehicles and the fact that his vehicle was unregistered.

When presented with what sounds strikingly like the ex post facto inclusion of a phantom vehicle trying to budge its way into line, he sounded genuinely surprised. He was neither evasive nor argumentative. I found the same to be true of Ms. Miriam, and I note that neither of their versions were seriously contested in cross- examination. I find that Ms. Miriam’s recollection of Mr. Leonard’s conversation with her to be reasonable under the circumstances. People who back up when they can’t see the vehicle behind them would, no doubt, comment in a manner of style she ascribed to Mr.

Leonard. [ 23 ] When I look to the version of the accident related to me by Mr. Spearing and Ms. Miriam, it is in harmony with “the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and those conditions....” their car was angled and behind the van such that if the van attempted to back up, the driver of the van would not likely have been able to see their car. [ 24 ] When I look to Mr. Leonard’s evidence I find it less reliable.

He maintained that his eyes were averted to the front when the accident happened and then presented what I consider to be an ex post facto justification for why Mr. Spearing probably hit him. I note that he only explained that his understanding of this phantom car was based on hearsay when he was asked to explain how his understanding of this phantom vehicle came to be. If the phantom vehicle was there, why would he not have talked to the driver of that vehicle at the time of the accident? Would it not have been at or near the location of the accident?

Would that driver not have come out of his car to participate in the discussions immediately following the accident? Why did Mr. Leonard not call the “other guy” who presumably saw the accident to give evidence at this trial? Why did Mr. Leonard maintain that he came to the back of the van to see the damage from the passenger’s side and then, quickly change his evidence and say that he could not recall which side he came from when he was presented with the fact all other witnesses said he came from the driver’s side? [ 25 ] I am also concerned with Mr. Leonard’s assertion that he did not at any time phone Mr.

Spearing to discuss settlement. I am satisfied that he did ... because I believe Ms. Gotchia. I would not normally consider a telephone call to discuss settlement to be any particular admission of fault simply because parties are free to resolve their differences without the need to involve SGI. What I find frustrating is that when Mr. Leonard was confronted with this information, I believe he made up a reason which would detract from any conclusion I might have made regarding a conversation about settlement. Why would he bother to contact Mr.

Spearing for the simple reason of ascertaining why the Spearing vehicle was unregistered? This makes no sense and has no bearing whatsoever on any of the relevant issues in connection with the accident. The reason why the car was unregistered would not in any way assist him. Did he ask this out of mere curiosity? I doubt it and I doubt that was why the call was made. [25] I find that Mr.

Leonard was unwilling to make any admissions against self-interest or otherwise, and instead spent a considerable amount of time at trial making repeated self-serving statements (the phantom car). [ 26 ] As stated, I was not impressed with the evidence of Mr. Ferleyko. It appeared to me that he had rehearsed his evidence and when caught up on occasion or asked a difficult question, furtively glanced over to Mr. Leonard in what appeared to be concern that he was staying on track. I was particularly frustrated that on the vital issue of what conversation took place between Mr. Leonard and Ms.

Miriam, and notwithstanding that he was only a couple of feet away, he could not recall or did not hear the conversation. [ 27 ] Finally, I find Mr. Leonard’s discussion of the phantom vehicle unreasonable on the preponderance of probabilities ...... that Mr. Spearing, fearing that his place in line might be jeopardized, would suddenly accelerate directly into the back of Mr. Leonard’s stationary van.

[ 28 ] I find that Mr. Leonard was in his van immediately prior to the accident and decided to back up in order to get around a slow moving line of traffic at the gas pump and in so doing failed to observe the Spearing vehicle which was behind him and at an angle. I find Mr. Leonard negligent and wholly responsible for the accident. [ 29 ] I award Mr. Spearing the principal sum of $1,185.17 in damages together with pre-judgment interest on that sum which I assess to be $5.93. [ 30 ] I award costs to Mr. Spearing for the issuing of his summons in the sum of $20.00.

I am unable to award any costs for those out of pocket expenses which may have been incurred by Mr. Spearing by virtue of any lost opportunity in having to attend at trial but advise that he, or his representative, has thirty days from the date of this judgment to apply to this Court to seek any further out of pocket costs incurred. [ 31 ] On receipt of this judgment, each of the parties are directed to provide a copy of it to Saskatchewan Government Insurance so that it may, if necessary, amend its records to reflect the decision of this Court. If, after amendment, Mr.

Spearing has not received payment for the amounts set forth herein, he may apply to this Court for further direction regarding damages. P. Demong, J 11