Warren Gervais - v. -, 2015 SKPC 53

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 201 5 SKPC 053 Date: April 6, 2015 File: 70/15 Location: Regina, Saskatchewan _____________________________________________________________________________ Between: Warren Gervais - and - James Nelson Warren Gervais For the Plaintiff James Nelson For the Defendant JUDGMENT P.

DEMONG, J Introduction [ 1 ] Warren Gervais brings this negligence action against James Nelson arising from a motor vehicle accident which occurred in the late afternoon of October 31, 2014, very near the intersection of Gordon Road and Lewvan Drive in the City of Regina. [ 2 ] James Nelson has defended the action and has brought a counterclaim seeking the loss of wages that he has incurred by having to attend the trial, and for a further sum of money sufficient to offset the cost of his witness driving to Regina from Saskatoon to give

evidence in this proceeding. [ 3 ] Halfway through trial Mr. Gervais orally amended his claim and he too seeks a sum of money sufficient to offset his potential loss of earnings by having to take time off work to prosecute this action. [ 4 ] For reasons which I will discuss later on in this judgment, I am satisfied that both the counterclaim and the amended claim are really only a clarification of the costs that each are seeking if one or the other is successful in this action. [ 5 ] In order for Mr.

Gervais to succeed in this action he carries the burden of proving, on a balance of probabilities, that the accident occurred because Mr. Nelson was, at all relevant times, negligent in the operation of his vehicle. He must show that Mr. Nelson’s driving fell below the standard of care of a reasonable and prudent driver. He must show that Mr. Nelson’s negligence was the proximate cause of the damage to his vehicle. [ 6 ] I have explained to Mr. Gervais that there are three potential outcomes to this trial. I may find Mr. Nelson negligent and entirely at fault for Mr. Gervais’ loss. I may find that Mr.

Gervais has failed to prove that Mr. Nelson was in any way negligent. I may find that each of Mr. Gervais and Mr. Nelson were negligent to some degree. In the latter event it is incumbent on the Court to assess the degree to which each was negligent. If I decide each were negligent but cannot ascertain the extent to which each party’s negligence contributed to the accident I am obligated by operation of

section 2 of The Contributory Negligence Act SS 2002 c. C-31 to find them equally at fault. Facts [ 7 ] With the exception of some minor points, the parties are in agreement with those essential facts which gave rise to the accident. [ 8 ] Sometime between 4:00 and 5:00 p.m. on the 31 st day of October 2014, Mr. Gervais was on his way home. He had picked up a pizza at Sparky’s for a Halloween party that his son was having. He was driving his 2010 Nissan Altima. The weather was beautiful. There was no rain and no snow. It was late afternoon. The sun was still shining. [ 9 ] Mr.

Gervais was travelling westbound on Gordon Road. He was not in a hurry. He approached the Lewvan Drive intersection. Lewvan Drive runs north and south. Gordon Road runs through the intersection east and west. The intersection is large. There are a number of through lanes and turn lanes to and from each direction. [ 10 ] Mr. Gervais says that he has driven through this intersection on countless occasions. He is familiar with the light sequencing and the flow of traffic. He knows that vehicles on the west side of the intersection (travelling east on Gordon) have a number of lanes available to them.

He knows that one lane allows for right-hand turns so that traffic can turn south onto Lewvan. He knows that there are two through lanes of traffic allowing vehicles to proceed east through the intersection. He knows that there are two left-hand turn lanes allowing vehicles to turn north onto Lewvan. [ 11 ] Mr. Gervais approached the intersection at a reasonable rate of speed - perhaps ten to fifteen kilometres per hour.

He moved to the curb lane, or northernmost lane of travel on Gordon Road in order to effect a right-hand turn so that he could proceed north on Lewvan. [ 12 ] As he approached the intersection, he noted a vehicle in the lane to his left who proceeded through the intersection westbound on a green light. As soon as that vehicle exited the intersection he noted that two vehicles were approaching the intersection from Gordon Road east bound and that they were plus or minus a few feet side by side in the two left hand turning lanes. Mr.

Gervais surmised that each of these vehicles intended to complete their turns to proceed northbound on Lewvan. [ 13 ] As these two vehicles entered the intersection Mr. Gervais also entered the intersection, having previously activated his right-hand turn signal. All three of them were intending to turn north. This should not have caused any problem at all. As Lewvan proceeds through the Gordon Road intersection northbound there are three lanes. One lane is closest to the centre of the highway. I will call that the median lane. Next to it is another lane which I will call the centre lane.

Beside that and to the right is a third lane. I will call that the curb lane.

[ 14 ] Photographs of the intersection were tendered into evidence. These clearly show two distinct lanes of travel for vehicles which are turning left off of Gordon Road to proceed northbound onto Lewvan. [ 15 ] Mr. Gervais says that as he effected his turn, he almost immediately moved from the curb lane into the centre lane of traffic. He did this fully aware of the fact that Mr. Nelson’s vehicle was wholly within that lane of traffic and rounding out his turn.

As he attempted to take the traffic lane in which the Nelson vehicle was positioned, his vehicle was hit on the driver’s side front corner panel. [ 16 ] Mr. Nelson’s version of the events is similar. He says that he was travelling east on Gordon Road with the intention of turning left onto Lewvan to proceed in a northerly direction. There was a car to his left which was also turning left. Each of them entered the intersection on a solid green light. Each of them was comfortably ensconced in their respective lanes of travel.

Just as he proceeded through the intersection and such that the front of his vehicle was pointing due north he felt a bump on the passenger’s side of his vehicle... as if the car to his right was trying to access his lane of travel. [ 17 ] Mr. Nelson submitted a photograph of the intersection into evidence. He penned in the specific location of the accident. The location is almost identical to the location stated by Mr. Gervais. Each of the parties show the point of collision just to the north of the intersection proper, at or about the point where the crosswalk line is marked. [ 18 ] Mr.

Nelson called his son as a witness. He was a passenger in his father’s van. He confirmed the evidence given by his father. [ 19 ] I am satisfied that the accident occurred just as the parties describe. Mr. Nelson was turning left on a solid green light at a reasonable rate of speed. As he was effecting his turn he stayed entirely within the lane that is marked by broken lines on the highway. He had virtually completed his turn and straightened out his vehicle all the while in the lane demarcated for left-hand turns. At or about the same time, Mr.

Gervais cut across the curb lane of travel in an attempt to enter the centre lane of travel. The front driver’s side corner panel of the Gervais vehicle either struck, or was struck by, the passenger’s side of the Nelson vehicle. Argument [ 20 ] Mr. Gervais says that the action taken by Mr. Nelson was negligent. He says that cars that are turning left on a green light must always yield to those vehicles proceeding from the opposite direction. He asserts that he is entitled, as a matter of right, to choose to take the centre lane of travel as he effects his right-hand turn rather than staying in his curb lane.

He says that it was incumbent on Mr. Nelson to wait until Mr. Gervais moved his vehicle into the centre lane before Mr. Nelson could leave the intersection and proceed along the lane that is available to him. Therefore, he says, Mr. Nelson is wholly at fault for the collision. [ 21 ] Mr. Gervais has not provided any case law in support of his proposition but he says that he has thoroughly canvassed The Traffic Safety Act, SS 2004 c. T-18.1 and there are no proscriptions on his right to do what he did. He also asserts that this is the way he has approached these kinds of turns for the better part of thirty years.

He says that it is regularly done by others and he has seen this. He says that he finds support for this conclusion because his acquaintances do the same thing. He says that law enforcement officials he has talked to have confirmed the rightness of the manner in which he effected his turn, as has his brother-in-law who is a lawyer. In final argument the Court asked Mr. Gervais if he then felt that in a similar situation cars turning left would have to yield to him if he chose to cut across both the curb lane and the centre lane in order to get to the median lane.

No clear answer was given, but the Court inclined to the view that yes, Mr. Gervais felt inclined that he would still have that right of way. [ 22 ] Mr. Nelson denies that he was negligent, either in part or at all. He says that he saw Mr. Gervais’ right- hand turn signal activated. He says that he prudently entered the intersection and stayed in his lane of travel for the duration of his turn and just as his vehicle straightened out he was hit. He says that he fully expected that Mr. Gervais would complete his turn by staying entirely within the lane that was available to vehicles turning right. He says that Mr.

Gervais has no right to change from the curb lane that was available to him into the centre lane that was already occupied by the Nelson vehicle. Analysis [ 23 ] The Court often looks to the rules of the road set forth in The Traffic Safety Act, SS 2004 c. T-18.1 in assessing whether or not a party has met the standard of care of a reasonable and prudent driver. I am cognizant of the fact that, as our Court of Queen’s Bench has noted, a breach of those rules does not operate as proof of negligence, but the rules nevertheless can guide a court in assessing reasonable

driving habits.... they assist in assessing the standard of care of a reasonably prudent driver. [ 24 ] Section 219 (3) of the Act obligates a driver intending to turn left across the path of any vehicle approaching from the opposite direction, to yield the right of way and not to proceed until he has afforded the other driver a reasonable opportunity to avoid a collision. But that provision speaks to vehicles that are turning across the path of another vehicle intending to proceed through an intersection. In the instant circumstances, Mr.

Gervais made it known to other users of the highway that he intended to turn right. Mr. Nelson was entitled to rely on that signal. In any event, it is clear that the accident happened just outside of the intersection as Mr. Nelson had just completed his turn and as Mr. Gervais was transitioning from the curb lane to the centre lane, and as such different rules of the road apply. [ 25 ]

Section 218 and section 228(1)(

a) read as follows: 218

(1) If the driver of a vehicle intends to turn right at an intersection, the driver shall approach the intersection and make the turn as closely as possible to the right-hand curb or edge of the highway.

(2) If the driver of a vehicle intends to turn left at an intersection, the driver shall: (

a) approach the intersection in the extreme left-hand lane that is lawfully available to traffic moving in the direction the driver is travelling; and (

b) after entering the intersection, make the left turn so as to leave the intersection, as nearly as possible, in the extreme left-hand lane that is lawfully available to traffic moving in the direction the driver is travelling on the highway that the driver is entering.

(3) If more than one lane of a highway has been designated, using signs or pavement markings, as a right or left turn lane, a driver intending to turn right or left into an intersecting highway shall: (

a) approach the intersection in one of the designated lanes; and (

b) leave the intersection in the lane of the intersecting highway that corresponds to the lane from which the turn was commenced. 228

(1) If a highway is divided into traffic lanes, the following rules apply: (

a) no driver of a vehicle shall fail to drive as nearly as is practicable entirely within one lane or shall drive from that lane to another unless it is safe to do so; [ 26 ] I am satisfied that Mr. Nelson complied with his obligation set forth in section 218(2) of the Act . He had the right to proceed to turn left on the green light. As he effected his turn, he complied with section 218(2) of the Act . He entered the intersection in the lane available to him and he then stayed in that lane and left the intersection in that lane which was lawfully available to him.

I see nothing in the evidence that should have or could have warned him that Mr. Gervais would suddenly cut across the curb lane and attempt to enter the lane he was lawfully entitled to be in. [ 27 ] Conversely, Mr. Gervais did not comply with section 218(1). As he rounded his turn he should have, but did not, complete the turn as closely as possible to the right-hand curb lane or edge of the highway. Rather, as he effected his turn he attempted to enter into the lane occupied by Mr. Nelson’s vehicle and in so doing failed to comply with section 228(1)(a).

Clearly he attempted to enter that lane of travel before it was safe to do so. [ 28 ] Under the circumstances I find that Mr. Gervais has failed to convince the Court on a balance of probabilities that Mr. Nelson was negligent, either in whole or in part. Quite the contrary, I am satisfied that the accident occurred entirely due to the negligence of Mr. Gervais.

[29] In the result, Mr. Nelson has been entirely successful in the defence of this action and he is entitled to claim his costs of thisproceeding. I am prepared to accept that he felt that his son’s evidence at trial was necessary. He could not reasonably have anticipatedthat Mr. Gervais’ version of the accident was going to mirror his own. I consider the travel costs of his witness to be a reasonableincluded cost anticipated by

section 31 of The Small Claims Act, 1997, c. S-50.11 and I am satisfied that it is a cost that had to be borne tosecure his attendance. I accept Mr. Nelson’s submission that the round trip distance from Saskatoon approximates 500 kilometres and Iam prepared to allow a per kilometre charge as set forth under The Public Service Commission Regulations at 42 cents per kilometretravelled for a total costs award of $210.00. Arguably the witness would be entitled to a meal per diem but as this has not been requested,I am not prepared to award anything further for this witness’ attendance. [30] Mr.

Nelson has also sought payment for the loss of wages he has incurred in having to attend trial. He says that he earns $32.00 perhour and has lost one half day of work. He seeks $128.00 in total. I am not, in this case, prepared to award the defendant with an amountof money that he has lost by virtue of his requirement to attend trial. In that regard I note the decision of our Court of Appeal in Hope vPylypow, 2015 SKCA 26 . Chief Justice Richards stated at paragraph 63 of that decision: (

c) A self-represented litigant should not be compensated in relation to time and effort expended on a case which flow from the simplefact of being a litigant. I refer here to things like preparing to give evidence or appearing as a witness. All litigants self-represented or not,must deal with such demands. [31] There is one final matter which should be addressed. [32] It is customary practice by SGI to obtain statements from parties involved in a motor vehicle accident and any witnesses.

Indeed, itis often necessary for it to do so in order to allow its adjusters to make a preliminary assessment of responsibility for insurance purposes.Section 70 of The Automobile Accident Insurance Act, SS 2002, c.A-35 grants SGI this authority and subsection (3) of that sectionmakes it clear that no person to whom a request is made pursuant to the

section shall fail to comply with the request. [33]

Section 71 of the Act in turn places limits on public inspection of those reports or statements and confirms that they are madewithout prejudice and for the information of the insurer. Subsection (2) of that

section also makes it clear that the insurer shall keep thosereports or statements confidential. Subsection (3) makes it clear that no report or statement obtained by SGI is admissible in any trialarising out of an accident. [34] Unfortunately, SGI regularly provides these statements to party litigants upon request and upon being made aware that the partywho is requesting it is proceeding to trial. This creates a most vexing situation for the Court and for the litigants.

Litigants come to courtprepared to cross-examine each other on their previous statement to SGI only to be advised by the court that the statement cannot be useddirectly or indirectly in court nor can it be filed with the Court as a prior inconsistent statement. If these reports are intended to be treatedas confidential and for the internal use of SGI and cannot be used in trial, one wonders why SGI regularly provides them to the litigants. [35] At trial each of the parties indicated that they had received the statement that the other had provided to SGI.

Each sought to usethem in cross-examination and each was told that they could not. The defendant was sanguine with the ruling but the plaintiff tookumbrage with it, suggesting that his constitutional rights were being violated. He could not point to which constitutional right was inissue or why. I chose not to deal with any potential constitutional challenge as I am satisfied that the plaintiff did not and reasonablycould not have given notice to the Attorney General pursuant to

section 13 of The Constitutional Questions Act, 2012, SS 2012c. C-29.01. Conclusion [36] For all of the foregoing reasons, I am satisfied that the plaintiff has failed to show that the defendant was, at the requisite time,negligent in the operation of his vehicle, either in whole or in part. Warren Gervais’ claim against James Nelson is dismissed. JamesNelson is entitled to costs which I fix at $210.00 which I direct to be paid immediately. [37] Each of the parties is directed to provide a copy of this decision to SGI so that it may, if necessary, amend its records to reflect thedecision of this Court.

Paul Demong, J