Muhammad Islam - v. -, 2021 SKPC 65

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2021 SKPC 65 Date: December 22, 2021 File: 237/21 Location: Regina _____________________________________________________________________________ Between: Muhammad Islam - and - Meagan Nash Muhammad Islam For the Plaintiff Meagan Nash For the Defendant DECISION DEMONG, J ______________________________________________________________________________ Introduction [ 1 ] The parties were involved in a motor vehicle accident in a parking lot in Regina on August 5, 2021.

Each of the parties reported the accident to Saskatchewan Government Insurance (SGI), and SGI ultimately concluded that Mr. Islam was entirely responsible for the accident.

[2] Mr. Islam has disagreed with that determination of liability and has brought this action de novo, as is an insured’s right whenthey disagree with motor vehicle accident liability decisions made by adjusters at SGI. He is suing Ms. Nash for recovery of $700.00,which is the amount of the insurance deductible that he had to pay to have his vehicle repaired. He alleges that Ms. Nash was negligent inthe operation of her vehicle and entirely at fault for the accident. He also seeks his court costs. [3] Assessing who is at fault for an accident occurring in a parking lot in Saskatchewan can be difficult.

This is so, in part, becauseowners of parking lots are free to configure the lanes of traffic and the location of available parking stalls as they see fit. In addition, theyhave the choice of posting, or deciding not to post, traffic signs which would otherwise regulate the flow of traffic.

When an accidentoccurs at an intersection of two roadways which lacks signage on commercial premises which allows for parking, the question thenbecomes whether one of the roadways is dominant and one servient. [4] This question needs to be determined because the law in Saskatchewan, as set forth in Weiman v Carter, 2002 SKPC 48, [Weiman], confirmed by Judge Scott of this Court in Willey v Koob, (2007), 298 Sask R 284, 2007 SKPC 88 , [Willey]differentiates between passageways and thoroughfares.

In Weiman, Judge Whelan determined that a major thoroughfare in a parking lot,which provides drivers access to the parking area but from which drivers could not directly access parking, was the equivalent of ahighway, and those that allow for direct access to a parking spot are more akin to lanes or alleys. In so doing, she distinguished thedecision of Judge Moxley in Thomas v Stearn, [1997] S.J.

No. 771 by stating: [5] My decision rests on my assessment of whether this was an uncontrolled intersection or more akin to an entry from an alley orside road onto a street or highway. [6] I have reviewed a decision of my brother Judge, Moxley, J. in Thomas v. Stearn, [1997] S.J. No. 771. While it assisted me toread this decision, I find that the facts are different. He reached the conclusion that the accident occurred at an uncontrolled intersectionin a parking lot and saw no material difference between the nature of the roads upon which each driver approached the collision. [7]

Section 61 of The Highway Traffic Act provides: 61 No person shall, in or on any place that is not a highway and that the public is ordinarily permitted to use for the parking of vehicles,do anything that, if done on a highway, would be a violation of subsection ... 50(1) ... [8] Section 50(1) of the Act provides: 50(1) If two vehicles arrive at an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right ofway to the driver of the vehicle on the right. [9] Section 50(4) and (6) of the Act are pertinent to this decision and provide:

(4) Before entering a provincial highway, the driver of a vehicle shall yield the right of way to vehicles on the provincial highway. . . .

(6) No driver of a vehicle shall enter or cross a highway or a sidewalk from a private road or driveway or a lane or alley unless he yieldsthe right of way to pedestrians and vehicles approaching from the sidewalk or highway. [10] I find that the facts in this case are more akin to a situation which is envisaged by subsections 50(4) and (6), above. The Plaintiffwas driving on the equivalent of a highway and the Defendant was driving on the equivalent of a lane or alley as he sought to enter thehighway. In these circumstances the Defendant should have yielded the right of way to the Plaintiff’s vehicle.

I find that they were not atan intersection and as such the Defendant was in error when he said that he expected the Plaintiff to yield to his vehicle as he was on theright.

[ 5 ] I note in passing that the sections of the Highway Traffic Act referred to in Judge Whelan’s decision continue to exist in its revised version - The Traffic Safety Act , SS 2004, c. T-18., [the Act ], but with some slight modification. Former section 50(1) is now reflected in section 219(1) of the Act . Former section 50(4) has become section 219(4) excepting only that in the Act , the word ‘provincial’ has been deleted.

Former section 50(6) has become section 219(6) in the Act and the wording is identical. [ 6 ] Judge Scott’s analysis, and detailed explanation of the reasoning of Judge Whelan in Weiman is instructive. Judge Scott notes at paras 16, 17, and 18 that: [16] It is necessary to determine whether the thoroughfare on which the accident occurred is a “highway” as defined by sub- section 2(1) (

k) of The Traffic Safety Act , S.S. 2004, c. T-18.1 : 2(1)(k) “ highway ” means a road, parkway, driveway, square or place designed and intended for or used by the general public for the passage of vehicles, but does not include any area, whether privately or publicly owned, that is primarily to be used for the parking of vehicles and the necessary passageways on that area… [17] In Weiman v. Carter , [2002] S.J.

No. 290 , Whelan, P.C.J. found that a major thoroughfare in a parking lot, which provided drivers access to the parking area, but from which drivers could not directly access parking, was the equivalent of a highway. [18] While the thoroughfare on which the accident in the present case occurred connects the entrance and exit to the parking areas, it does not provide direct access to parking spaces.

It is not an “area…primarily to be used for the parking of vehicle” neither is it a “necessary passageway on that area.” The Court finds that the thoroughfare on which the accident occurred is the equivalent of a “highway” under the Act . Therefore, the rules provided for in the Act which govern the conduct of drivers on a highway, as defined above, apply to this thoroughfare. [ 7 ] An analysis of these three cases establishes three potential scenarios which arise in relation to determining fault for accidents at the intersection of roadways in a parking lot - in the absence of signage:

(1) If an accident occurs at an intersection of a passageway in a parking lot (which does allow for direct access to a parking spot) and another passageway, (which also allows for direct access to a parking spot), then neither of those passageways can be found to be the equivalent of highways in the sense that neither of them can be seen to be dominant or servient to the other. Therefore, the rules set out in section 219(1) govern and the vehicle on the left must yield to the vehicle on the right. Section 219(4) has no application because nether passageway is the equivalent of a highway.

(2) If an accident occurs at an intersection of two roadways in the parking lot (roads which do not allow for direct access to parking spot), then each are thoroughfares, and the situation is akin to two cars approaching an intersection of two highways. In that event, section 219(1) continues to govern and the vehicle on the left must yield to the vehicle on the right.

(3) Where, however, an accident occurs at the intersection of a passageway (a road which allows for direct access to parking) and a thoroughfare (a road which does not allow for direct access to parking), then section 219(4) governs. Because the vehicle on the passageway is entering onto the equivalent of a highway, it must yield the right of way to vehicles on the thoroughfare which in law is deemed to be the equivalent of a highway. [ 8 ] On the evidence before me, Ms. Nash was driving her vehicle on what can only be described as a thoroughfare.

As she entered onto these commercial premises by turning south off of Broadway Avenue, the roadway that she turned onto does not allow direct access to a parking space until she passes the intersection where the accident occurred. Rather, there are a series of passageways which intersect with that road. As such that road is not an area that is primarily used for the purpose of parking vehicles and should be treated as a thoroughfare and deemed to be a highway for the purpose of applying the rules of the road. [ 9 ] At or about the same time, Mr. Islam was also on what can only be described as a thoroughfare.

As he entered onto these commercial premises, by turning east off Ottawa Street, the roadway that he turned onto does not allow direct access to a parking space until he passes the intersection where the accident occurred. Rather, and again, there are a series of passageways which intersect with that roadway. As such the road is not an area that is primarily used for the purpose of parking vehicles and should be treated as a throughfare and deemed to be a highway for the purposes of applying the rules of the road. [ 10 ] The accident occurred when Ms.

Nash approached the intersection and, rather than yielding to Mr. Islam’s vehicle - which was to her right - she proceeded to effect a left-hand turn. In doing so the front passenger’s side of her vehicle collided with the front driver’s

side quarter panel of Mr. Islam’s vehicle. [ 11 ] Because neither of these two thoroughfares are dominant or servient, one to the other, section 219(1) of the Act governs. Simply put, when Ms. Nash approached the intersection, she should have, but failed to, yield to Mr. Islam’s vehicle which was to her right. In consequence she was in breach of the rules of the road as set forth in the Act .

As this court has noted on many previous occasions, absent special circumstances, a failure to abide by the rules set forth in the Act is indicative of a failure to meet the standard of care required of a careful and prudent driver. As such, I find Ms. Nash to be negligent and entirely at fault for the accident. [ 12 ] Having so found, I direct each of the parties to provide their respective SGI adjusters with a copy of this Court’s decision. Absent an appeal, SGI will, as it is legally obligated to do, amend their records to reflect the decision of this Court, and in so doing will remit Mr.

Islam’s deductible back to him. In consequence he will be made whole and there will be no need for me to award damages. If, however, SGI fails to do so, Mr. Islam is free, within 90 days, to contact this Court and so advise, and I will award him damages in the sum of $700.00. [ 13 ] Mr. Islam was successful in this action. He is entitled to his costs. I award him his filing fee in the sum of $100.00 and his cost of serving the summons in the further amount of $15.00. I also award him general costs pursuant to section 36(3) of The Small Claims Act, 2016, in the sum of $50.00, for a total costs award of $165.00.

He is, of course, at liberty to decline to attempt collecting this from Ms. Nash. ______________________________ P. Demong, J.