Harrajvinder Singh Jatana - v. -, 2016 SKPC 23

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2016 SKPC 023 Date: February 11, 2016 File: 104 of 2014 Location: Saskatoon _____________________________________________________________________________ Between: Harrajvinder Singh Jatana - and - Daniel Matthew Ferguson Ammad Anwar For the Plaintiff Robert Ferguson For the Defendant _____________________________________________________________________________ JUDGMENT V.L.

MONAR ENWEANI , J _____________________________________________________________________________ Introduction [ 1 ] The Plaintiff, Harranjvinder Singh Jatana, claims against the Defendant, Daniel Matthew Ferguson, for the $100.00 insurance deductible payable as a result of a motor vehicle accident occurring on February 12, 2013 in Saskatoon, Saskatchewan. [ 2 ] The Plaintiff asserts that the Defendant’s negligence was the sole cause of the accident. The Defendant denies being at fault.

Evidence [3] The Plaintiff testified that on February 12, 2013, sometime between 3:00 p.m. and 4:00 p.m., he was travelling down OslerStreet, coming from the west, and heading east toward the uncontrolled intersection at Osler Street and McKinnon Avenue. He said theDefendant’s vehicle was travelling in a northerly direction on McKinnon Avenue, and was on his right. The Plaintiff saw theDefendant’s vehicle approximately 30 meters back from the intersection. He said he proceeded and he entered the intersection first, withthe Defendant’s vehicle entering the intersection after him.

The road at the time was slippery. [4] The Plaintiff testified that the Defendant’s vehicle hit his vehicle and it looked like the Defendant could not stop. ThePlaintiff testified that he was almost half way through the intersection when the collision happened. When asked if he saw anyonebefore entering the intersection he stated: “yes I saw him but he was so far away, so it was my right to proceed”. The Plaintiff testifiedthat the Defendant hit the passenger side of his vehicle near the front passenger side tire and door.

The Plaintiff also testified that his carswung and that there was damage to the rear passenger side of his vehicle as well. SGI determined that his car was a total loss. [5] The Defendant testified that he was travelling down McKinnon Avenue heading towards the University of Saskatchewan. As he was approaching the intersection at McKinnon Avenue and Osler Street, he saw the Plaintiff’s vehicle eastbound on Osler Streetapproaching the intersection. He said that several parked cars then obscured his vision prior to the intersection.

He approached theintersection at approximately 30 km/hr and said “I saw him enter as I entered” the intersection. The Defendant hit his brakes and madecontact with the Plaintiff’s vehicle at the middle of the intersection. He said he thought he had the right of way as he was on thePlaintiff’s right. He hit the Plaintiff’s vehicle on the front passenger side. The frame of the Defendant’s vehicle was damaged and hiscar was a total loss. [6] On cross-examination, the Defendant stated that his vehicle was approximately 15 to 20 meters away from the intersectionwhen he made eye contact with the Plaintiff.

He said he hit the Plaintiff’s vehicle at less than 30 km/hr as he braked prior to thecollision. [7] The Plaintiff says that he entered the intersection first and was almost halfway through the intersection when the collisionoccurred. The Plaintiff argues that because he entered the intersection first, s. 219(1) of the Traffic Safety Act is not applicable. [8] The Defendant argues that the Plaintiff’s vehicle and the Defendant’s vehicle entered the intersection at approximately thesame time.

The Defendant argues that s. 219(1) of the Traffic Safety Act applies, and as the Defendant had the right of way, thePlaintiff’s claim should be dismissed. Analysis [9] The Plaintiff is required to establish his case on the balance of probabilities. The Plaintiff’s action in this case is innegligence - he alleges that the Defendant operated his vehicle in a negligent fashion thereby causing the accident. [10] As noted in Gervais v Nelson 2015 SKPC 53 , 2015 SKPC 053, the Court often looks to the rules of the road set forthin 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 prudentdriver. The Court of Queen’s Bench has noted that a breach of those rules does not operate as proof of negligence; nevertheless the rulescan guide a Court in assessing reasonable driving habits and the standard of care of a reasonably prudent driver. [11] The following provisions of the Traffic Safety Act are relevant in this case: Driving with due care required 213

(1) No person shall drive a vehicle on a highway without due care and attention.

(2) No person shall drive a vehicle on a highway without reasonable consideration for other persons using the highway. Rules re yielding right of way 219

(1) If two vehicles arrive at an intersection at approximately the same time, the driver of the vehicle on the left shall yield theright of way to the driver of the vehicle on the right.

[ 12 ] The Plaintiff argues that s. 219(1) of the Traffic Safety Act is inapplicable in the circumstances because the two vehicles did not arrive at the intersection at approximately the same time. Rather, his vehicle arrived first in time. In support of this position the Plaintiff filed the decision in Leonard v Janke 2003 SKPC 170 with the Court. In particular, the Plaintiff relies on para 10 as follows: [10] Section 50(1) refers to vehicles arriving at a intersection at “approximately” the same time. The Manitoba Court of Appeal in Scheving v.

Scott and Scott (1960), 24 D.L.R. (2nd ) 354 considered a provision similar to s. 50(1) and the Court interpreted the word as follows: The word ‘approximately’ as used in the above

section [then s. 63(1) of the Highway Traffic Act , R.S.M.1954 c. 221] means ‘ about’ or ‘nearly’ and it is the direct opposite of ‘exactly’ or ‘precisely’. Therefore a vehicle approaches an intersection at approximately the same time as another vehicle if it approaches slightly before or slightly after such a vehicle.

Because the vehicle from the left reaches the intersection first - momentarily or a fraction of a moment ahead of the vehicle from the right - it cannot be said that the vehicle from the right has not approached it at ‘approximately’ the same time. [ 13 ] This decision is of no assistance to the Plaintiff. Here, the evidence indicates that, at the most, the Plaintiff’s vehicle arrived at the intersection only slightly before the Defendant’s vehicle.

I find on the facts that the two vehicles in question arrived at the intersection at nearly or approximately the same time, such that s. 219(1) does apply. [ 14 ] There was no evidence of any attempt on the part of the Plaintiff to either slow down, yield or stop his vehicle, even though he testified that he saw the Defendant’s vehicle when approaching the intersection. In fact, in his evidence, the Plaintiff suggested that he had the right of way because he was closer to the intersection. [ 15 ] I find that the Plaintiff failed to yield the right of way to the Defendant and that he caused the collision.

As the Plaintiff’s failure to yield the right of way at an uncontrolled intersection caused the accident, the only remaining question is whether there was any contributory negligence on the part of the Defendant. [ 16 ] As clearly established in Woodward v Harris , [1951] OWN 221 , the statutory right of way does not relieve the operator of the duty to drive with due care and attention. However, based on the evidence, I am not satisfied that the Plaintiff has shown that the Defendant had an opportunity to avoid the accident, notwithstanding the Plaintiff’s failure to yield.

Although the Defendant did see the Plaintiff’s vehicle prior to the intersection, his vision was obscured by parked cars as he got closer to the intersection. He was driving at a reduced speed of 30 km/hr. At the intersection, he braked immediately as he saw the Plaintiff entering the intersection, but was unable to avoid the collision. Finally, he thought he had the right of way and it was not unreasonable for him to assume that the Plaintiff, on his left, would yield at the uncontrolled intersection.

In all of the circumstances, it cannot be said that he reasonably should have foreseen and avoided the accident. [ 17 ] Accordingly, I am unable to find any contributory negligence on the part of the Defendant, and I find the Plaintiff wholly responsible for the collision. The Plaintiff’s claim is therefore dismissed. [ 18 ] I make no order as to costs. ____________________ V.L. Monar Enweani, J