Mohammad Rahimi - v. -, 2022 SKPC 13

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2022 SKPC 13 Date: March 8, 2022 File: 310/21 Location: Regina _____________________________________________________________________________ Between: Mohammad Rahimi - and - Hana Watama Banyi Mohammad Rahimi For the Plaintiff Hana Watama Banyi For the Defendant JUDGMENT P. DEMONG, J Introduction [ 1 ] The parties were involved in a motor vehicle accident at the intersection of Victoria Avenue and Broad Street in Regina, Saskatchewan, on July 15, 2021, at approximately 11:00 p.m.

Each of the parties reported the accident to Saskatchewan Government Insurance (SGI), and SGI ultimately concluded that due to conflicting statements it could not ascertain who was at fault for the accident. In consequence SGI concluded that each would have to rely on their own insurance deductibles to have their own vehicles repaired. Mr. Rahimi’s vehicle was a total write-off. He received insurance monies to reflect its pre-accident value, but only upon payment of his

deductible which equated to $350.00. [ 2 ] Mr. Rahimi is of the view that SGI should have found Ms. Banyi entirely at fault for the collision and he now brings this action, not as an appeal of SGI’s decision, but rather by way of trial de novo, as is an insured’s right when they disagree with motor vehicle accident liability decisions made by adjusters at SGI. He is suing the defendant for recovery of his deductible. He alleges that Ms. Banyi was negligent in the operation of her vehicle and entirely at fault for the accident. He also seeks his court costs. [ 3 ] Ms.

Banyi did not file a Reply but she did attend at trial to defend the claim brought against her. She denies that she was negligent and puts Mr. Rahimi to the strict proof thereof. Evidence, Analysis, and Findings of Fact [ 4 ] Certain facts are undisputed. Where there is a dispute, I will explain why I prefer to accept some evidence and reject other evidence. [ 5 ] The intersection of Victoria Avenue and Broad Street is relatively large by Saskatchewan city standards. Victoria Avenue runs from east to west and a median divides east and westbound traffic.

Broad Street runs north and south and a median divides north and south bound traffic. [ 6 ] A person who is travelling westbound on Victoria Avenue and approaching the intersection of Broad Street has four available lanes of travel. For the purposes of this judgment, I will identify the curb lane on Victoria Avenue which compels drivers to affect a right-hand turn to go north on Broad Street as lane #V1. The next lane - lane #V2 - is a through lane which allows drivers to proceed through the intersection in a westerly direction. Lane #V3 is also a through lane.

Lane #V4 is dedicated to those drivers who intend to effect a left-hand turn and proceed south on Broad. [ 7 ] A person who is travelling southbound on Broad Street and approaching Victoria Avenue also has four available lanes of travel. The lane closest to the median, and which allows traffic to affect a left-hand turn and proceed east on Victoria will be referred to as lane #B1. The lane immediately to the right of that lane - lane #B2 - is a through lane which allows drivers to proceed through the intersection in a southerly direction. The next lane - lane #B3 - is also a through lane.

Lane #B4 is the curb lane and is dedicated to those drivers who intend to effect a right-hand turn and proceed West on Victoria Avenue. [ 8 ] Mr. Rahimi stated that he was driving his Toyota Camry taxicab westbound on Victoria Avenue in lane #V2 as he approached the Broad Street intersection. He asserted that the light had been green for some time and that he entered the intersection while his light was green, and at the rather casual speed of 40 to 45 kilometers per hour. He said that suddenly and without notice, Ms.

Banyi, who was southbound in lane #B3 driving a grey Dodge Caravan, drove into the passenger’s side rear quarter panel of his vehicle with such force that his vehicle spun 180 degrees and came to a rest just west of the intersection facing east. He stated that he did not see her vehicle prior to the collision - but he does not say that his vision was impaired by other vehicles in the vicinity. In short, he gives no explanation as to why he could not see her vehicle as it approached the intersection.

He maintained that she must have been exceeding the speed limit because, otherwise, his vehicle would not have ended up spinning 180 degrees. However, because he did not see her vehicle before the collision, he could not ascertain her actual speed. He maintained that she must have run the red light because he was presented with a green light as he entered the intersection. He asserted that the fact that he was able to drive three-quarters of the way through the intersection without being hit by any other north or southbound traffic is indicative of the fact that he had the green light. [ 9 ] Ms.

Banyi asserted that she was driving from her home, travelling southbound on Broad Street in lane #B2 at about 50 kilometers per hour just before this accident. She said that as she approached the intersection the light was red, but approximately two or three car lengths before the intersection her light turned green. She said that she had not slowed her vehicle, nor did she speed up. Rather, seeing the light turn green, she simply entered the intersection and immediately struck the back passenger’s side quarter panel of Mr.

Rahimi’s vehicle - which had been travelling in lane #V2 She asserted that: the traffic was light; there were no vehicles on her right; nor were there any vehicles to her left that might otherwise have impeded her ability to see Mr. Rahimi’s vehicle as it entered the intersection. She concedes that she did not even bother to check to see if any vehicles were in the intersection as she entered it. [ 10 ] Ms. Getz presented as an independent witness called by Ms. Banyi. Her evidence conforms more closely to the evidence given by Ms. Banyi than by Mr. Rahimi.

She asserted that she was driving southbound on Broad Street in lane #B2 operating her Ford F-150 half ton truck. She says that she sits high on the seat and the truck affords an excellent field of view. She said that as she approached the

intersection, at about 50 kilometers per hour, she was presented with a red light. It was her intention to effect a left-hand turn at the intersection and proceed in an easterly direction on Victoria Avenue. She said that as she started to change into the turning lane #B1 the light changed to a green arrow, and simultaneous with that, the light for southbound through traffic turned green. She stated that there was very little traffic, but she noted that Ms. Banyi’s grey Dodge Caravan was in lane #B3, a car length or two ahead of her - which would have put Ms.

Banyi’s vehicle at least two, if not more, car lengths from the intersection when the light turned green. She stated that she then turned her head to look to her left and noticed Mr. Rahimi’s vehicle about to enter the intersection at what she thought was a high rate of speed – certainly faster than the default speed limit of 50 kilometers per hour. Based on her twenty-some-odd years of driving, she estimated the speed of Mr. Rahimi’s vehicle to be at least 60 to 65 kilometers per hour. She confirmed that the collision occurred when the front end of Ms.

Banyi’s minivan struck the rear passenger’s side quarter panel of Mr. Rahimi’s vehicle. She confirmed that at all relevant times there was no other vehicle travelling on either Victoria Avenue or Broad Street which may have otherwise obstructed the view of either Mr. Rahimi or Ms. Banyi - if either of them had bothered to look towards the other. [ 11 ] Mr. Rahimi was given every opportunity to cross-examine Ms. Getz. He chose not to do so. He maintained that because he had not seen her at the accident scene, she obviously was not there when the accident happened. He has invited me to infer that Ms.

Getz has manufactured all this evidence. However, Ms. Banyi maintains that Ms. Getz came to her aid following the accident. Ms. Getz confirms this. I have no doubt that she was there and did her very best to relate what she saw as these events unfolded. I have no hesitation in concluding that she was present at the time of the accident and did her best to provide the court with an accurate overview of what she observed. Importantly, I found Ms. Getz to be thoughtful and articulate. She gave her evidence in a forthright manner.

She did not overstate any of her evidence, nor did she give me any indication that she was preferring one party over the other. [ 12 ] Mr. Rahimi has invited me to conclude that his version of the accident should be accepted over that of Mr. Banyi and the independent witness. He predicated that invitation on two grounds. First, he insists that Ms. Banyi must have been travelling at an excessive rate of speed because of how his car reacted when hit. He says that only high speed could have caused this to occur. He has led no compelling evidence to support that conviction.

Arguably his car may have spun because of its own excessive speed. I can certainly imagine that a car which is travelling at a high rate of speed may very well spin when hit on its back corner by a vehicle travelling at fifty kilometers per hour. [ 13 ] Second, Mr. Rahimi argued that he must have had the green light because otherwise he could not have traversed the equivalent of five to six lanes of travel westbound - without being hit by other vehicles transiting the intersection north and southbound. In my view that argument does not assist him.

There is scant evidence of heavy traffic at that time and in any event, I conclude that the accident occurred within a second or so of the light turning green for southbound traffic. I take judicial notice of the fact that if a vehicle is parked waiting for a red light to turn green, there is a momentary delay while a driver sees the light turn green and then commences to move his car forward. Additional time would transpire for northbound traffic to transit the eastbound lanes of travel on Victoria Avenue before entering upon the lane that Mr. Rahimi was in. Importantly, if Mr.

Rahimi was proceeding at the rate of 60 to 65 kilometers per hour - as suggested by Ms. Getz - then he was travelling at 16 to 18 meters per second. Having lived in Regina for more than 39 years, I believe I can take judicial notice of the fact that the width of a typical lane on a highway in Regina is between 3 and 3.5 meters. If Mr. Rahimi was travelling at the speed indicated by the independent witness, he would have transited five to six traffic lanes (a distance of 16 to 19 meters) in almost exactly one second.

This is a short enough period of time that he would have avoided any vehicles on Broad Street waiting for their red light to turn green so that they could then proceed through the intersection in a northerly direction. [ 14 ] I note that this timeline accords very closely to Ms. Banyi’s evidence and the evidence of Ms. Getz. If Ms. Banyi were travelling at about 50 kilometers per hour, she would be moving at about 14 meters per second.

If the light turned green when she was a couple of car lengths from the intersection (she agreed that a car length is about six meters) and she then transited one westbound lane of travel before colliding with Mr. Rahimi (who was in lane #V2), her total distance travelled from the time that the light turned green until the time of collision would have been about 15 meters. It would have taken her about one second to transit this distance. [ 15 ] As a plaintiff in a civil proceeding, Mr.

Rahimi carries the evidentiary burden - which is to say that he must convince the court, on a balance of probabilities, that his evidence is the evidence to be preferred. In my view, he has failed to do so. Where his evidence, or the evidence of Ms. Banyi, contradicts the evidence of Ms. Getz, I prefer the evidence of Ms. Getz. She was sitting high in her seat watching these events unfold from a distance of mere meters. She has no reason to misrepresent what she saw and has no vested interest in the outcome.

As I have said earlier, she presented as most judges hope a witness will present - confidently but carefully - with a willingness to temper her recollection as circumstances dictated. Importantly, none of her evidence was challenged on cross-examination. [ 16 ] For all these reasons I conclude, that on the evening in question, it is more likely than not, that Ms. Banyi was driving in the southbound lane of travel which I have identified as #B3 at about fifty kilometers per hour.

As she approached the intersection the light turned green when she was, at the very minimum, a couple of car lengths away from the intersection. She then entered the intersection on that green light without bothering to check to her left to see if there were any vehicles attempting to transit the intersection. Within a second or so of the light having turned green, she struck the rear passenger’s side quarter panel of Mr. Rahimi’s vehicle. [ 17 ] I further conclude, more likely than not, that: Mr. Rahimi was driving his taxi at a rate of speed in excess of the speed limit; that

he entered the intersection when he had been presented with a yellow light for some period of time; and rather than slowing his vehicleand proceeding with caution, he attempted, without success, to race through the intersection before the light turned red.

The Law and its Application to the Facts [18] There have been many decisions of this Court confirming that non-compliance with the rules of the road set forth in The TrafficSafety Act, SS 2004, c T-18.1 [Act] may, all things being equal, constitute a failure to meet the standard of care of a reasonably carefuland prudent driver. (See, for instance, Genoway v D’Sena, 2017 SKPC 65 at para 19 [Genoway]. [19] In Saskatchewan, a driver of a vehicle is obligated to drive with due consideration to other users of a highway.

Section 213 reads: 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. [20] In addition, while a driver of a vehicle is entitled to proceed through a yellow light, that right is circumscribed. Section 235(3) ofthe Act reads as follows:

(3) If a traffic light at an intersection displays only an amber light: (

a) the driver of a vehicle facing the light shall stop at the crosswalk, but, if the vehicle cannot be brought to a stop with safety, thedriver may drive cautiously through the intersection. [21] This accident occurred at 11:00 p.m. It was dark out. I am satisfied that Mr. Rahimi was travelling in excess of the speed limitwhen this accident happened.

This is dangerous, and in my view, more dangerous yet when one transits an intersection on a stale yellowlight, and particularly so when section 35(2) of the Act compels a person transiting through an intersection on a yellow light to avoiddoing so if at all possible - but if done, done cautiously. Cautious behavior in that event would be to slow a vehicle considerably, whilesimultaneously monitoring the traffic in the immediate vicinity - especially at night. Mr. Rahimi failed to do all of this and that non-feasance was, in my view, negligent. [22] That stated, Ms.

Banyi was also obligated to follow the rules of the road. As indicated in section 235(1) of the Act, a driver of avehicle has the prima facie right to enter an intersection on a green light, but that right is not absolute. In Genoway, at paras. 21 and 22this Court noted: [21] . . . Some Saskatchewan drivers incline to the view that when they are presented with a green light they have the absolute right toproceed regardless of existing circumstances. I wish to dissuade Saskatchewan drivers from that false assumption. Our Court ofAppeal, in Mallin v Clark, (SKCA) dispelled that notion some 62 years ago.

Citing both the Ontario Court of Appealand the Supreme Court of Canada, it noted at paras 10 and 16 of that decision: [10] … Authority is not required in support of the principle that a driver entering an intersection, even although he has the right of way,is bound to act so as to avoid a collision if reasonable care on his part will prevent it.

To put it another way: he ought not to exercise hisright of way if the circumstances are such that the result of his so doing will be a collision which he reasonably should have foreseen andavoided. [16] … As was stated in Wills v Swartz Bros. and Hudson supra at p. 634, ‘where there is nothing to obstruct the vision, and there is aduty to look, it is negligence not to see what is clearly visible’. With deference I must agree with the learned trial judge that thedefendant was negligent in not keeping a proper lookout.

The evidence satisfies me that the defendant, if keeping a proper lookout,should have become aware of the plaintiff’s vehicle and thereupon by the exercise of reasonable and prudent care should have avoidedthe accident.

[22] I am satisfied that Ms. D’Sena had the opportunity, albeit a lesser opportunity than Ms. Genoway, to avoid the accident had she taken the reasonable step of looking to her left when the light turned green, in order to assure herself that it was safe to enter the intersection, and that had she done so she could have taken some steps to avoid this collision. [ 23 ] Ms. Banyi was operating her vehicle at night. When presented with the red light, she did not, according to her evidence, slow her vehicle even appreciably as she approached the intersection.

It appears, from the evidence presented, that she was attempting to time the light so that she could proceed on the green - as soon as the light turned green. In fact, she did just that, and in so doing did not even bother to look to her left to see if any other vehicle was approaching. Just as in Genoway , I find that this course of conduct is less than careful and prudent driving. Had she done so she may have been able to take steps to avoid the collision. [ 24 ] In conclusion, I find that both drivers operated their vehicles without due consideration for other users of the highway. However, I find Mr.

Rahimi’s conduct to be considerably more negligent than Ms. Banyi’s because his lack of consideration was compounded not only by a failure to observe other vehicles in the vicinity, but also because he should have significantly reduced his speed when entering the intersection on a stale yellow rather than proceeding in excess of the speed limit. All of these respective failures, in my view, contributed to the accident and its severity. [ 25 ] Having found both parties to be negligent I am obligated by

section 3 of The Contributory Negligence Act , RSS 1978, c C-31 , to apportion the respective degrees of fault of each party. I apportion 75% of the fault for the accident to Mr. Rahimi. I apportion 25% of the fault to Ms. Banyi. [ 26 ] Mr. Rahimi has been partially successful in this action, but only marginally so, and on that basis, I exercise my discretion to refuse to award costs. [ 27 ] 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 its records to reflect the decision of this Court, and in so doing it will re-assess the respective deductibles paid by the parties. In that event there will be no need for me to award damages. If, however, SGI fails to do so, Mr. Rahimi is free, within 90 days, to contact this Court and so advise, and I will hear argument on the quantum of damages, if any, to be awarded. ___________________________ Demong, J