Taskov v. McDonagh, 2022 BCPC 267

Citation: Taskov v. McDonagh 2022 BCPC 267 Date: 20221124 File No: M- 2168509 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DRAGOMIR G. TASKOV CLAIMANT AND: KATHERINE OLIVE DIANE McDONAGH DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.J. BROWN Appearing on their own behalf: D. Taskov Counsel for the Defendant: M. Nakatsu Place of Hearing: Vancouver, B.C. Date of Hearing: August 5 and October 31, 2022 Date of Judgment: November 24, 2022

INTRODUCTION [ 1 ] This small claims proceeding arises from a motor vehicle accident that occurred on November 23, 2020 at 6:30 am at the intersection of East 49 th Avenue and Victoria Drive in Vancouver, BC. [ 2 ] The Claimant, Mr. Taskov, was driving his 2019 Honda Fit for Uber with a passenger. He pulled into the intersection to turn left from East 49th onto Victoria Drive when there was a collision between his vehicle and a 2008 Ford Focus owned by the Defendant, Ms. McDonagh. The parties’ recollection of events leading up to the accident differ significantly, and liability is at issue. [ 3 ] Mr.

Taskov alleges that Ms. McDonagh was negligent, and he is seeking $21,000 in lost income, as well as certain amounts paid to the repair shop. Most of the repairs to his vehicle were covered by insurance. [ 4 ] Ms. McDonagh takes the position that she was not negligent, and therefore not liable. In the alternative, liability should be apportioned. She also takes issue with the amount of Mr.Taskov’s damages, and she asserts he failed to mitigate by not taking advantage of a rental car program for Uber drivers. ISSUES [ 5 ] There are a number of issues arising from this litigation: 1.

Does the Provincial Court have jurisdiction in this matter, given the jurisdiction acquired by the Civil Resolution Tribunal (“CRT”) under the Civil Resolution Tribunal Act (“ CRTA ”)? 2. Who was at fault for the accident? 3. Are the damages appropriate, and was there a failure to mitigate? JURISDICTION [ 6 ] Fortunately, this was a short, day-and-a-half trial. Both Mr. Taskov and Ms. McDonagh’s counsel simply started the trial assuming our court had jurisdiction respecting this motor vehicle accident. In the end, they were right without perhaps realizing it.

I only thought of the jurisdiction issue on the second day of trial, when I became concerned that the date of the accident was after the CRTA had undergone significant changes. [ 7 ] I also bear in mind that the parties, and this court, wish to see a speedy and efficient resolution to this matter. I now summarize the relevant amendments to the CRTA , and why this court has jurisdiction. [ 8 ] As of April 1, 2019, the CRT’s jurisdiction expanded to include making certain decisions regarding motor vehicle accidents. Under s. 133(1) of the CRTA, these decisions included (

a) entitlement to receive accident benefits, (

b) the classification of an injury as a minor injury, and (

c) liability and quantum, including loss and damage to property related to the accident , if the amount is under the tribunal amount (currently $50,000). Section 134(2) makes clear that the tribunal’s jurisdiction applies to accidents after April 1, 2019. Before that date, the CRT could resolve liability and quantum only if under $5000. [ 9 ] Section 133(2) of the CRTA stipulates that the CRT has exclusive jurisdiction over claims involving accident benefits and minor injury determinations.

However, the CRT does not have exclusive jurisdiction over liability and quantum claims, but it is considered to have specialized expertise in respect of such claims. [ 10 ] At first glance, I considered using the provisions in s.16.2 and 16.3 of the CRTA which allow me to make an order that the CRT not adjudicate a liability and quantum claim in the interests of justice and fairness.

Defence counsel also suggested this avenue. [ 11 ] However, I realized that the CRT did not have jurisdiction in this matter because of the definition of “accident” in s.132 of the CRTA , which applies to liability and quantum claims.

Section 132(

a) adopts the meaning of accident set out in s.101 of the Insurance (Vehicle) Act .

In s.101, accident means an accident occurring in B.C. “… that is caused by a vehicle or the use or operation of a vehicle as a result of which a person suffers bodily injury.” The case before me does not involve a bodily injury claim. [ 12 ] I thank the legal officers of the Office of the Chief Judge for clarifying this rather convoluted jurisdictional issue in memorandums to the court back in 2019. [ 13 ] In short, if there is no bodily injury, the CRT has jurisdiction over motor vehicle accidents only if under their small claims limit of $5000. The claim here is much higher, so jurisdiction is with this court.

MR. TASKOV’S ACCOUNT OF THE ACCIDENT [ 14 ] On November 23, 2020, Mr. Taskov was transporting an Uber passenger in his Honda Fit at 6:30 am, driving eastbound on East 49 th Avenue. It was a dark and rainy morning. [ 15 ] Mr. Taskov was driving in the lane closest to the centre line. When he arrived at the intersection of East 49 th and Victoria Drive, he pulled into the intersection to turn left onto Victoria Drive. The light was initially green, then turned yellow to red. [ 16 ] Mr. Taskov then saw Ms. McDonagh’s vehicle in the curb lane going westbound on East 49 th towards him. He said she went

through the red light and was likely speeding over 50 kilometres per hour. She hydroplaned. He thought she was going to go by him, but her vehicle went from the curb lane into the centre lane and struck his vehicle. He said her vehicle lost control. [ 17 ] He showed pictures of Ms. McDonagh’s vehicle with her left front tire bent out almost 90 degrees and cut, and fender damage. He said that the pictures show no metal to metal contact. [ 18 ] Mr. Taskov drove through the intersection without making a left and went into a Petro-Canada gas station. He had scratches from the airbag. Ms.

McDonagh left by ambulance but was okay. [ 19 ] In cross-examination, Mr. Taskov said he had two phones attached to stands on his windshield, but he did not have to look at these phones, only listen. Also in cross, Mr. Taskov said he first saw Ms. McDonagh’s vehicle when it was 150 metres away and the light was red. He later said the light turned red when she was much closer. He then said the light turned yellow when she was 120 metres away, but it was too risky to turn left. He denied that Ms.

McDonagh’s vehicle entered the intersection on a yellow light and that his car was over the centreline. [ 20 ] A material damage note was put to Mr. Taskov, indicating the damage is left front to left front with an inability to tell if either of the vehicles were stationary at time of impact. An earlier ICBC report sides with Mr. Taskov, stating there was no head on collision damage and that the damages were consistent with a side swipe. The note suggests there was no evidence to suggest a left turn was initiated. [ 21 ] Mr. Taskov was cross-examined on Uber notes from his passenger, stating Mr.

Taskov did not signal to turn left. The note is hearsay, and it contradicts even the defendant who said he did signal left. [ 22 ] Regrettably, Mr. Taskov’s Uber passenger did not testify and he provided no formal statements to ICBC or the police. A cyclist took a picture but he too did not testify. The picture shows the Honda well into the intersection seconds before the accident and the wheels are not turned. In the picture, the Victoria Drive light is red, so the East 49 th light could be green or yellow. [ 23 ] Mr. Taskov felt the incident report was fishy. There was no dash camera footage from Ms.

McDonagh’s vehicle, no police report, and the intersection did not have a camera. [ 24 ] ICBC sent Mr. Taskov a letter on January 22, 2021, assessing him 100% responsibility for the accident. [ 25 ] Mr. Taskov’s Honda was in the shop from November 23, 2020 to January 15, 2021. Most of the repair costs were covered, but he is seeking $670 he paid to the body shop, which is likely GST and the insurance deductible, and $895 for four new tires. Mr. Taskov testified that he could not drive the car on January 15, 2021, because his front left tire was not changed although damaged. Mr.

Taskov had to buy four new tires, and he could not use the car until February 1, 2021. [ 26 ] His major claim is for lost income for 70 days as an Uber driver, as he said he worked all days of the week. He seeks $21,000 because he averages $350 to $300 per day as an Uber driver. He has been an Uber driver since January of 2020, but he has had a Class 1 licence since 1978. He received some COVID-19 benefits in 2020. [ 27 ] Mr. Taskov provided banking records spanning December 21, 2019, to December 20, 2020. The total Uber income amounts to $58,973.95, but he took a holiday in August and September of 2021.

Defence counsel pointed out that the daily averages, even with vacation removed, do not average $300. Mr. Taskov also agreed that September and October can be slow months. [ 28 ] Mr. Taskov did not rent a car from Hertz. He said that he only became aware in April of 2021 of a program between Uber and Hertz, which allows Uber drivers to rent a car. This evidence does contradict the ICBC notes indicating Mr. Yuen, an adjuster, discussed the Hertz program with him on November 25, 2020 and January 5, 2021. Mr.

Taskov testified he tried Hertz for one day and was told Hertz rentals cannot be used for Uber drivers, and the program did not exist at the time of the accident. He also said he did not have a credit card at the time, a requirement for the Hertz program. MS. McDONAGH’S ACCOUNT OF THE ACCIDENT [ 29 ] On November 23, 2020, Ms. McDonagh was travelling in her Ford Focus on East 49 th Avenue on her way to work at St. Vincent’s Hospital Langara. It was a rainy and dark morning. Ms. McDonagh had been driving for 22 years, and the route was very familiar to her.

She said she never uses her cell phone while driving. [ 30 ] At around 6:30 am, Ms. McDonagh continued driving west as she approached the intersection of East 49 th and Victoria Drive. Contrary to what was said by Mr. Taskov, Ms. McDonagh said she was travelling in the lane closest to the centre line, not the curb lane. She also said she did not enter the intersection on a red light. The light had turned from green to yellow. Her speed was average to low. [ 31 ] When the light turned yellow, Ms.

McDonagh made the decision to continue travelling through the intersection as there were cars behind her and she did not wish to attempt a quick stop and get rear-ended. She said the intersection seemed safe, and she drove through the intersection without slamming on her brakes. [ 32 ] Ms. McDonagh did see Mr. Taskov’s vehicle in the centre lane in the other direction, and his left signal was on. As she passed his vehicle, she felt a hard hit to her vehicle’s left side. Her airbags did not deploy, but her door was jammed.

Emergency response vehicles arrived, and she went to the hospital to deal with some chest pain. [ 33 ] Ms. McDonagh said her vehicle simply passed Mr. Taskov’s vehicle, and her vehicle never slid. She assumed his vehicle either started its left turn, or it was over the centreline. [ 34 ] In cross-examination, Ms. McDonagh was firm that she was travelling in the centre lane, and she preferred that lane even if there were left turners. She also maintained that she did not cross on a red light, and she did not touch her brake.

COMMERCIAL ADJUSTER’S EVIDENCE [35] Ms. Halliday is a commercial adjuster for ICBC, and she provided evidence about the Uber-Hertz Program and other matters. [36] She testified that the Hertz program was intended to provide Uber drivers with rental cars in the event their cars were out ofservice. She referred to the Uber website in that regard, and she said the program was in effect ever since Uber was insured by ICBC, andit was in effect on November 23, 2020. Mr.

Taskov pointed out that the screenshot of the Hertz website was undated. [37] The Hertz weekly base rate was $285, and those fees would be reimbursed by ICBC if the person was not at fault for theaccident. There is a refundable security deposit, and a valid credit card is a requirement. [38] Based on her review of the file, Ms. Halliday believed Mr. Taskov was eligible for the Hertz program. At no time did Mr. Taskovmake ICBC aware that he may not have an adequate credit card. [39] Courtesy cars provided by auto repair shops are not insured for use by Uber, and Mr.

Taskov may have been making inquiriesabout courtesy cars and not Hertz rentals. [40] ICBC paid a total of $8,205.67 to AMJ Auto Group to repair Mr. Taskov’s vehicle. Mr. Taskov was responsible for paying theGST on vehicle repairs, regardless of liability, because his vehicle was used for business. The payment of the deductible does depend onliability. LIABILITY The Law [41] In order to determine who was at fault for the accident, I must first consider the relevant legislation in the Motor Vehicle Act,RSBC 1996, c. 318 (“MVA”).

Section 144 of the MVA provides the general prohibition that a person must not drive on a highwaywithout due care and attention, and without reasonable consideration for other persons using the highway. [42] I also bear in mind what was said in Pirie v. Skantz, 2015 BCSC 368 at paragraph 33: … One must acknowledge the realistic exigencies involved in making what are usually split-second decisions by drivers incircumstances where traffic factors have to be assessed quickly… The standard of care is not perfection, but is that of an ordinaryprudent person:… [43]

Section 128 of the MVA states in part that: … (

a) the driver of a vehicle approaching the intersection and facing the yellow light must cause it to stop before entering the markedcrosswalk on the near side of the intersection, or if there is no marked crosswalk, before entering the intersection, unless the stop cannotbe made in safety Ms. McDonagh was facing the yellow light, so the onus falls on her to prove that a stop could not be made safely (see Pirie, para. 43). [44]

Section 174 of the MVA also applies: When a vehicle is in an intersection and its driver intends to turn left, the driver must yield the right of way to traffic approaching fromthe opposite direction that is in the intersection or so close as to constitute an immediate hazard, but having yielded and given a signal asrequired by sections 171 and 172, the driver may turn the vehicle to the left, and traffic approaching the intersection from the oppositedirection must yield the right of way to the vehicle making the left turn. This

section applies to Mr. Taskov who was turning left. Analysis [45] This is a troubling case because I did not hear the testimony of two independent witnesses, the Uber passenger and the cyclist.Also, the police report was entirely inadequate. [46] The evidence from the parties differs in key areas. Mr. Taskov said Ms. McDonagh’s car went through a red light andhydroplaned from the curb lane all the way into his opposing lane as he was waiting to turn left. Ms.

McDonagh said the light wentyellow as she approached the intersection, and her car was continuously in the centre lane going straight without hydroplaning or anyloss of control. [47] Credibility and reliability are therefore large considerations in this case. It is also important to remember that the overall onus ison Mr. Taskov as the Claimant to prove on a balance of probabilities that Ms. McDonagh was negligent. [48] Measuring credibility and reliability here is not a black and white exercise, where I am required to find one of the parties to be anoutright liar or wholly unreliable.

It is a subtle exercise in measuring the evidence. As stated in Faryna v. Chorny, (BCCA), the real test of the truth of the story of a witness must be its harmony with the preponderance of the probabilities which a practicaland informed person would readily recognize as reasonable in that place and in those circumstances. [49] There are certain factors which lower Mr. Taskov’s reliability in his account of the accident on November 23, 2020: 1. Mr. Taskov testified that he could tell Ms. McDonagh was going straight through the intersection, and he thought she was going to go

by him. At the same time, he said she hydroplaned all the way from the curb lane through the centre lane into his vehicle in the opposing lane. This is hard to visualize. He also changed his evidence about when the light changed to red; at first, Ms. McDonagh was 150 metres away, but he later said she was much closer. 2. His recollection that the East 49 th light was red just before the accident does not necessarily accord with the cyclist’s photograph taken seconds before the accident. The light on Victoria Drive is clearly red, which means the light on East 49 th was either green or yellow. 3. Mr.

Taskov gave inconsistent testimony about his knowledge of the Uber-Hertz program. He said he first heard of the program in April of 2021, yet he later acknowledged that the adjuster mentioned the program a couple days after the accident even though Mr. Taskov believed it was unavailable. [ 50 ] It is true that the physical damage to each of the vehicles is consistent with Mr. Taskov’s account, but it is also consistent with Ms. McDonagh’s account. There was no head on collision damage to either vehicle, but there was damage to the left front of Mr. Taskov’s car and more severe damage to the left front of Ms.

McDonagh’s vehicle. Her front left tire was turned 90 degrees and she could not open her driver door. The damage is left front to left front, and though no expert evidence was led, it is very difficult to say which vehicle was stationary or moving at the time of impact. [ 51 ] Ms. McDonagh gave her evidence in a straight-forward manner, and was consistent in her account throughout her evidence. [ 52 ] As Ms. McDonagh admitted that she was the driver facing a yellow light, there was an onus on her under s.128 of the MVA to prove a stop could not be made safely. I find she has met that onus.

Both parties agree it was a rainy and dark morning. According to Ms. McDonagh, she did not want to make a quick stop when the light went yellow, as there were cars behind her and she did not want to get rear ended. In my view, she acted prudently. Although Mr. Taskov claims Ms. McDonagh basically ran a red light, even he acknowledged that he was sure by the conditions of the road that she was not going to stop. [ 53 ] When I examine all the evidence, I find that Mr. Taskov, as a left turner, had a duty to yield to Ms.

McDonagh, or she was so close as to constitute an immediate hazard as set out in s.174 of the MVA . I am not satisfied she ran a red light or hydroplaned. Mr. Taskov has not proven her to be negligent on a balance of probabilities. [ 54 ] Based on my finding, I am not required to rule on damages. I will confirm that Mr. Taskov is responsible for the GST on the repair bill in any event, and he is responsible for the deductible based on my ruling on liability. In so far as loss of Uber income is concerned, I will only say Mr.

Taskov had a duty to mitigate using the Hertz program. [ 55 ] Due to the fact that the police report was inadequate and there were obstacles in the way of locating independent witnesses, each party will bear their own costs. ORDER 1. The Claimant’s Notice of Claim is dismissed. 2. Each party will bear their own costs. ____________________________ The Honourable Judge G.J. Brown Provincial Court of British Columbia