Roome v. Rajput et al. Date:, 2013 BCPC 231

Citation: Roome v. Rajput et al. Date: 20130716 2013 BCPC 0231 File No: C11831 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DAVID IAN ROOME CLAIMANT AND: MAZHAR RAJPUT, JOHN DOE, JANE DOE and INSURANCE CORPORATION OF BRITISH COLUMBIA DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Claimant: R. Dueckman Counsel for the Defendants: A. Kaukas

Place of Hearing: Port Coquitlam, B.C. Dates of Hearing: January 23 and February 22, 2013 Date of Judgment: July 16, 2013 INTRODUCTION [1] This is a personal injury action arising from a motor vehicle accident alleged to have taken place on March 21, 2009, at the intersection of King George Highway (as it was then known) and 72nd Avenue in Surrey, B.C. By agreement between counsel, thehearing over which I have presided is concerned solely with the question of liability. [2] The claimant, David Ian Roome (“Mr.

Roome”), contends that his vehicle, a blue, 2003 Chevrolet Malibu (the “Malibu”), wasrear-ended by a dark-coloured Toyota bearing B.C. license plate 276JNV while waiting for the light controlling movement of traffic across 72nd Avenue to change from red to green. Leaving aside nominal John Doe and Jane Doe defendants, it is Mazhar Rajput (“Mr.Rajput”) and the Insurance Corporation of British Columbia (“ICBC”) who have been joined to the action. Mr. Roome’s room mate, JanAnderson (“Ms. Anderson”), is not a party to this action but, like Mr.

Roome, she claims to have suffered personal injuries in the samealleged accident. She has pursued her claim in that regard with different counsel and in different proceedings. Ms. Anderson’s role inthe present litigation was thus confined to that of a witness for the claimant, Mr. Roome. [3] Mr. Rajput is named as a defendant because he is the registered owner of a 2007 Toyota Corolla vehicle with B.C. license platenumber 276JNV. He is sued on the premise that he, or someone driving that vehicle with his knowledge and consent, struck Mr.Roome’s Malibu from behind on March 21, 2009. Mr.

Rajput denies any such involvement. (Indeed, in their Reply, all defendants denyall of the allegations made in Mr. Roome’s Notice of Claim, including the allegation that the accident described by Mr. Roome occurredat all.) However, Mr. Roome also acknowledges that Mr. Rajput—who testified at trial—was not the driver of the vehicle that he saysrear-ended his Malibu. What’s more, at a vehicle damage match-up appointment he attended at the ICBC Claims Centre some time afterthe accident (about which more will be said below in these reasons), Mr.

Roome saw the Toyota Corolla that is associated byindependent evidence with B.C. license plate number 276JNV and he asserts that that was not the vehicle that was involved in theaccident on March 21, 2009. (Mr. Roome speculates that a different vehicle than that which corresponds to that license plate numberwas brought to the match-up appointment but, for reasons I shall explain presently, that is unsubstantiated speculation.) [4] Given the uncertainties about who, driving what vehicle, Mr.

Roome contends was the person who struck his Malibu, inalternative pleas he has joined ICBC to his action as a nominal defendant and places reliance upon s. 24(5) of the Insurance (Vehicle)Act, R.S.B.C. 1996, c. 231. That provision creates a right of action against ICBC in circumstances where the identities of the ownerand/or driver of a vehicle involved in a motor vehicle accident are unascertainable and unknown to a claimant like Mr.

Roome despite hishaving made all reasonable efforts to ascertain their identities. [5] Much of the evidence and argument in this case was focussed upon the sufficiency, or otherwise, of Mr. Roome’s efforts toascertain the identity of the driver and owner of the vehicle that he says collided with the rear of his Malibu. However, there is athreshold question that must be confronted first. It is plainly evident that if Mr.

Roome is to succeed in his action, he must prove, on abalance of probabilities, that a motor vehicle accident did in fact occur on March 21, 2009—that is, that his Malibu was, indeed, struckfrom behind by another vehicle on that date and at the location he alleges. [6] It is at this initial threshold point that Mr. Roome’s action founders. I am unable to find as a fact that the accident to which heand Ms. Anderson referred in their testimony at trial actually happened. I hasten to add that this outcome is not attributable to the waythat Mr. Roome’s case was litigated by his counsel. In my opinion, Mr.

Dueckman was handed a case already riddled with problems thatwere not of his making. Mr. Roome cannot justly fault Mr. Dueckman for the failure of an action that self-destructed mainly as a resultof profound weaknesses in the evidence that he (Mr. Roome) and his witness (Ms. Anderson) gave. [7] In light of the threshold conclusion that I have reached regarding the alleged accident of March 21, 2009, not having occurred,the rest of Mr. Roome’s case falls away. Mr.

Roome has failed to discharge his onus in respect of that essential, threshold fact—that theaccident about which he testified happened at all—and so his claims against all defendants must be dismissed. In these reasons forjudgment, I will explain why. THE CLAIMANT’S EVIDENCE IS NOT CREDIBLE [8] The problems with the claimant’s case are multifarious, serious and, cumulatively, fatal to his claim. No one problem wascapable of undermining the credibility of Mr. Roome’s evidence about the alleged accident.

However, together, they constitute asufficient aggregation of inconsistencies and deviations from the dictates of common sense that, through his own narrative and that of hiswitness, Ms. Anderson, Mr. Roome caused the evidentiary scale, and ultimately the scales of justice, to tilt against his own claim. [9] I will not address every one of the problems in Mr. Roome’s case; the most important of them, however, I will specify anddescribe in some detail below.

But before doing so I will first make reference to a venerable authority that is often cited when courts inthis province are confronted with testimony, like that of Mr. Roome and his witness Ms. Anderson, from which common senseinstinctively recoils. The case is called Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.). In thatdecision, O’Halloran J.A. noted in an often-cited passage that: “… 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.” (at 357).

[ 10 ] As will be seen, I have found repeatedly that the evidence given by Mr. Roome and by Ms. Anderson regarding their actions in connection with the alleged motor vehicle accident, both at the time of its alleged occurrence and afterward, cut against the dictates of common sense. Their account of their claimed actions (and indeed the actions they attributed to others) parted company, over and over again, with what one would ordinarily expect in the circumstances. In Faryna v.

Chorny terms, what they said they did, and didn’t do (and what they said others did and didn’t do) failed to “harmonise” with what, in the circumstances of this case, the “practical and informed person” would expect. And so, in the final analysis, I could not and did not find their evidence believable; that evidence, taken in the round, was incapable of persuading me that the accident that lies at the heart of Mr. Roome’s claim happened at all. Mr. Roome’s Failure to Take Note, Himself, of the Other Vehicle’s License Plate Number [ 11 ] Mr.

Roome testified that, although shaken up by the alleged accident and initially somewhat unsteady on his feet, he did still get out of Malibu shortly after impact and walk back to the driver’s side of the vehicle that rear-ended him in the expectation of learning the other driver’s identity and obtaining his registration and insurance particulars. However, Mr. Roome’s evidence was that this effort was fruitless; he was unceremoniously rebuffed by the other driver—a man of “East Indian persuasion” (Mr.

Roome’s words)—who, he said, rolled up his window and, with a closed fist, punched down the locking button projecting upward from the trim panel on inside of the driver’s door in a clear gesture of defiance. The man of “East Indian persuasion” simply refused to speak with him or engage in any way regarding the accident, says Mr. Roome. [ 12 ] I pause there. A driver who has just rear-ended another driver and refuses to provide information about his identity and insurance coverage stands to gain little by adopting such a ploy.

At the very least, the innocent one seeking the information has the alternative of getting some identifying information from the license plate mounted on the car the at-fault party is driving. The innocent one can, and ordinarily would, also obtain corroborating information from other witnesses. It seems unlikely that with no easy avenue of immediate escape and other ways for his victim to capture, easily, information about the car at least, a driver who has done what Mr. Roome says the other driver did in this case would simply refuse to communicate. But that was what Mr.

Roome’s sought to persuade the court with his sworn evidence. [ 13 ] I pause for a second time. The evidence of ICBC witness Roderick Keleny—an expert in matching patterns of damage on separate vehicles who examined the Malibu and Mr. Rajput’s Toyota with which the 276JNV license plate number is associated in the business records of ICBC (see, inter alia , Exhibit 1, tab 5, p. 2 and tab 13, p. 26)—was that that vehicle’s locking mechanism does not incorporate a locking button projecting upward from the trim panel on inside of the driver’s door.

That is to say, there was no part of the locking mechanism projecting upward from the trim panel for the driver to have punched down with a closed fist in a pointed gesture of defiance as Mr. Roome described. Mr. Keleny’s evidence in this regard, which I accept, was not shaken on cross-examination; indeed, he was not cross-examined about it at all. Seen in this light, the actions of the other driver colourfully portrayed by Mr. Roome in his testimony, simply could not have unfolded as he said they did. [ 14 ] Mr.

Roome further testified that, faced with the other driver’s rebuff, he took a look at its license plate. He said the plate was visible to him and that the front of the other driver’s car and the bumper of the Malibu were, on his evidence, only two to three feet apart. But, remarkably, his testimony was that he only saw the letters, not the numbers, on the license plate and that he did not make any note of them. [ 15 ] Having been denied by the other driver the best identifying information available concerning who had rear-ended his Malibu, why would Mr.

Roome not make a point himself of at least noting and recording the license plate number of that vehicle when he had the opportunity to inspect it with his own eyes at close range? It makes no sense for him not to have done so. I have already mentioned that he did not say that the vehicles were too close to one another for him to see the numbers as well as the letters. And if his ability to observe and record this crucially important identifying information regarding an uncooperative driver who had just rear-ended his Malibu was at all compromised at the front end of the uncooperative driver’s car, why would Mr.

Roome not simply have walked to the back end of the other driver’s vehicle and gotten the information he needed from the rear-mounted license plate? No reasonable explanation for these failures to do what any reasonable person would do in the circumstances is anywhere to be found in the evidence given by or on behalf of Mr. Roome at trial. [ 16 ] Mr. Roome’s claimed actions at the scene of the alleged accident in relation to obtaining license plate number information are not in harmony with what one would reasonably expect in the circumstances.

Even making some allowance to account for the fact that, he says, he was shaken up by the impact, I note that Mr. Roome did have the presence of mind to make the effort to get identifying information, first through discussion with the other driver and second via an examination of the license plate on the other driver’s car. Why would he embark on “Plan ‘B’” recourse to the license plate and then not complete his task? I cannot believe Mr. Roome’s testimony in this regard.

It is testimony that requires that I accept and find as a fact that he acted in a manner plainly contrary to his own interests by commencing a process of acquiring identifying information essential to his claim but then, inexplicably, failing to see it through to completion. I reject that evidence. It offends against common sense. Ms. Anderson’s Alleged Recording of the Other Vehicle’s License Plate Number [ 17 ] It is contended that, through other means, Mr. Roome took the necessary steps to secure information that would identify the person or persons associated with the vehicle that rear-ended his Malibu.

Those other steps are principally those said to have been taken by his passenger and room mate, Ms. Anderson, who (both testified) observed and wrote down the license plate number of the vehicle that struck the Malibu from behind. [ 18 ] Mr. Roome and Ms. Anderson’s evidence was that when Mr. Roome returned to the Malibu, reporting the other driver’s intransigence and acknowledging that his sortie had concluded nulla bona as regards the license plate number for the other driver’s vehicle, he asked Ms. Anderson what they should do next.

Both testified that she then unfastened her seatbelt, turned around in the passenger’s seat of the Malibu and climbed up onto it, facing backward. They testified that she then knelt on the passenger seat such that she could lean over the back of it and take note of the other driver’s license plate number by viewing it through the Malibu’s rear

window. I consider it significant that Ms. Anderson’s testimony was that she did not simply look over the back of her seat; rather, she testified that from a kneeling position she climbed up and leaned over the back of her seat and, from that position, then recorded the number with a pen on a piece of paper retrieved from the centre console. [ 19 ] I will pause there. I view with great suspicion the suggestion that Ms. Anderson did what she says she did to observe and record the license plate number of the other driver’s car.

The photographs of the Malibu—in particular the one found at Exhibit 1, tab 13, p. 43 —reveal that the Malibu is equipped with high backed seats which, in turn, are surmounted by high headrests. Viewing those photos, I am deeply sceptical that Ms. Anderson could position herself in such a way that her body leaned over the high, upper surface of the headrest.

There appears to be insufficient clearance between that and the interior ceiling of the Malibu to allow anyone to do that without great, and perhaps insurmountable, difficulty. [ 20 ] Moreover, the photos and testimony of the claimant and his witness confirm that the Malibu is equipped with a spoiler, blocking more of the view over the back of its trunk than would a straightforward trunk lid.

Looking at the height of the trunk/spoiler area of the Malibu as shown in the exhibited photos, and considering how low to the ground the license plate on the other vehicle was situated (shown in other exhibited photos), I have grave doubts that even if she were able to wedge herself between the top of the headrest and the ceiling of the Malibu, Ms. Anderson could possibly have had a sightline to the license plate of the other vehicle, given Mr.

Roome’s evidence that there was only two or three feet separating the back of the Malibu from the front of the car that he says struck it. [ 21 ] I will add that the credibility of Ms. Anderson’s evidence regarding what she could see from her “over-a-barrel” perch atop the passenger’s seat headrest was not enhanced when she testified that she believed, based on her observation, that the other driver was 5’ 8” to 5’ 10” in height.

She was prepared to give this estimate, despite the fact the other driver was seated in the driver’s seat of his vehicle . [ 22 ] There are several other problems with the claimant’s evidence regarding the recording, by Ms. Anderson, of a written note of the other vehicle’s license plate number. Chief among them is the fact that the piece of paper on which the license plate was said to have been recorded never surfaced at trial. [ 23 ] The significance of this centrally important piece of missing evidence seems to have been realised late in the day. Shortly before trial Mr. Roome’s counsel sent letters to Ms.

Anderson’s lawyer—a different lawyer, retained by her in relation to her separate claim for personal injury damages arising out of the same alleged motor vehicle accident—asking to have the document provided to him. (Mr. Roome’s counsel had been told by Ms. Anderson that her lawyer had it, although she admitted in cross-examination that she had never actually asked her lawyer to give it back for the purpose of tendering it as evidence in Mr. Roome’s case.) Mr. Roome’s counsel’s advice to the court was that the requests for the piece of paper went unfulfilled.

There was even an adjournment of the trial granted to permit Ms. Anderson’s file to be brought back by the other lawyer’s office from offsite storage in order that the piece of paper onto which she and Mr. Roome said she had written the license plate number could be located and retrieved from it. [ 24 ] The piece of paper was not found there. [ 25 ] In a supplementary formal admission, Mr. Roome acknowledges that, beyond not finding the note of the license plate number, Ms. Anderson’s lawyer has no recollection of what documents she gave to his office. And it is apparent that neither Roome nor Ms.

Anderson maintained a photocopy of this crucially important document in their own possession. Thus, the piece of paper has never seen the light of day in this trial and there is no independent evidence to confirm that it exists. If such a document did exist, then common sense suggests that it would have been carefully preserved by the claimant and feature prominently in the evidence presented on his behalf. That did not happen here. [ 26 ] While it seems that Mr.

Roome communicated license plate number 276JNV to ICBC when reporting his claim, I do not know where he got that number and on the evidence before me I am unable to find on a balance of probabilities that he got it from a note written by Ms. Anderson. Failure to Call Police to the Scene of the Alleged Accident [ 27 ] Having been rear-ended with considerable impact by a driver who refused to cooperate by sharing his registration and insurance particulars, Mr. Roome—by his own account of events—consciously chose not report the motor vehicle accident to police and seek to have them attend at the scene. Why would Mr.

Roome not move swiftly to get police to the scene, given the intransigence of the other driver who, he says, inflicted harm upon himself, his passenger and damaged his car? Why would he not summon police given that he had just experienced a rear-end collision in which he believed his Malibu was struck by the other vehicle travelling at “considerable speed”—delivering what Ms. Anderson described as a “whallop” that triggered immediate pain in her back, and caused her back to “bulge” then and there? [ 28 ] Mr.

Roome’s explanation for this curious decision was that he considered the damage to the Malibu to be less than $2,000 and so not worth reporting to police. But his testimony about his sortie outside the vehicle immediately after impact focused almost exclusively upon what he said were his unsuccessful efforts to obtain identifying information from and about the other driver, even from his vehicle license plate. He did not give evidence of having made any survey of his own vehicle damage. To the contrary, elsewhere in his testimony he stated under oath that he surveyed the damage when he and Ms.

Anderson ultimately arrived at their destination. Nor is there any reason to believe that Mr. Roome had or has the necessary expertise to attach value to vehicle damage, not all of which would necessarily be visible to the untrained eye. (The exhibited photos show that the Malibu is equipped with an impact-absorbing bumper.) [ 29 ] It should be obvious that the question of Mr. Roome’s own vehicle damage is, for present purposes, rather beside the point.

Quite apart from that damage, I repeat that he was dealing with a driver who, he says, rear-ended his vehicle, causing him and his passenger to suffer substantial injuries. This other driver was refusing to cooperate in identifying himself. To the extent that an opportunity would eventually materialise for the other driver to continue on his way, not fully identified, the alleged incident had some of the troubling attributes of a hit-and-run collision. A reasonable person in Mr.

Roome’s situation would not have foregone an opportunity to involve law enforcement in the investigation of what he characterises as a serious motor vehicle accident and in which the other driver was giving no cooperation whatsoever.

[ 30 ] Mr. Roome’s actions and omissions at the time of the alleged accident, and the motives to which he ascribes them, are not in harmony with what would reasonably expect in all the circumstances. His claimed behaviour conflicts with his own interests. I cannot therefore accept as credible the reason he gave in his testimony for declining to seek police assistance at the scene of the alleged accident. Failure to Obtain Names of Witnesses [ 31 ] It was Mr.

Roome’s testimony that his vehicle, and the one that struck his from behind, sat, one behind the other, through two cycles of traffic light changes at the King George Highway/72 nd Avenue intersection. This means that other vehicles in the lane immediately behind the other driver’s vehicle, and in the lanes beside it, would have been stationary for some time and could have been approached to assist Mr. Roome in confirming his account of the accident and the identity of the other participant (at least via the other participant’s license plate number). Mr.

Roome was clear, on cross-examination for example, that when he was out trying without success to get information from the other driver, the vehicles around them were still stopped. Such other drivers could, for example, have provided corroborative confirmation of the make, colour and condition of the other vehicle and of its license plate. Such other drivers could als perhaps have provided additional information regarding the appearance of the driver and his passengers, all of which would have buttressed Mr.

Roome’s position in circumstances where the other driver was allegedly showing no willingness to cooperate or identify himself. But, contrary to his own interests, Mr. Roome did not apparently take any steps to obtain information from those other drivers. This tells against the credibility of the story he told the court during the course of his testimony. [ 32 ] Several months after the alleged accident, Mr. Roome says he fell into conversation with a friend about the fact that he had been rear-ended by a driver who refused to cooperate when asked for insurance particulars.

That friend, Terry Johnson, suggested that posters be put up at the scene in the hope that any witnesses to the accident might make contact with Mr. Roome. Mr. Roome said he thought that that was a good idea. On his account, he cannot verify that Mr. Johnson put the posters up, but Mr. Johnson told him he did and he believes him. Mr. Roome doesn’t know precisely where or when the posters were affixed. He had no copies of the posters to tender in evidence in corroboration of this testimony; neither was Mr. Johnson called as a witness.

Here again, if these steps had in fact been taken, one would expect evidence of better quality than that given to substantiate those steps. Telling Reluctance to Cooperate with the Insurer [ 33 ] The evidence at trial shows that Mr. Roome and Ms. Anderson were, from the outset, markedly reluctant to deal with ICBC in relation to the alleged accident.

Despite her testimony that she felt pain and experienced a “bulge” in her back immediately upon impact —symptoms that, I pause to say, seem not to have prevented her from engaging in the rather contorted movements that would have been necessary for her twist in her seat, manoeuvre herself onto it in a kneeling position and then wedge herself between the top of the headrest on the passenger’s seat and the Malibu’s ceiling with the headrest as fulcrum—the evidence establishes that they did not report the alleged accident of March 21, 2009 until March 24 th .

And the evidence also establishes that they didn’t get in for their first appointment with ICBC (at the Brunette Claims Centre) until April 14 th . [ 34 ] Once that appointment was completed there was a hiatus, following which ICBC sought to bring Mr. Roome and Ms. Anderson back in for another appointment. [ 35 ] It is a formally agreed fact that on May 8, 2009, an ICBC representative called Timothy Lim advised Mr. Roome, by voicemail, that the person associated with the license plate number that had been supplied in Mr.

Roome’s initial report was denying involvement in the alleged motor vehicle accident and that, accordingly, an appointment where both vehicles would be present in order to carry out a damage match-up comparison needed to be booked: see Agreed Statement of Facts, Exhibit 1, tab 1, para. 5. [ 36 ] That voicemail was the first positive sign that Mr. Roome and Ms. Anderson received from ICBC to indicate that it was inquiring into the legitimacy of their claims. Mr. Roome denied receiving the voicemail.

However, that the voicemail was left for him by ICBC representative Timothy Lim on May 8 th cannot be gainsaid: it has been formally admitted (as is noted above). [ 37 ] Mr. Roome’s reluctance to deal with ICBC increased sharply in the wake of ICBC’s effort to get him and the Malibu in for a damage match-up comparison appointment. [ 38 ] The May 8 th voicemail was followed by a letter dated May 11, 2009 (Exhibit 1, tab 7), asking Mr. Roome to make contact with Mr. Lim to arrange a damage match-up appointment. It was mailed to 311 – 3036 Flint Street in Port Coquitlam, the address given by Mr.

Roome in connection with his claim ( cf. Exhibit 1, tabs 3 and 7). Mr. Roome denied receiving Mr. Lim’s letter or even having seen it. He even made a passing reference to his mail having been stolen around that time. However, he conceded on cross-examination that Ms.

Anderson might have seen the May 11 th letter, or perhaps even deflected it to her lawyer—a curious suggestion for him to make about private mail addressed to him, given the care both took to get across to the court that they are nothing more than room mates. [ 39 ] In any event, the evidence is clear and I find that ICBC had a great deal of difficulty getting Mr. Roome in to a claims centre in order to carry out the match-up damage comparison. Both he and Ms.

Anderson sought to convey to the court that they were incensed at the thought that they should have to attend two meetings with ICBC in relation to the alleged motor vehicle accident of March 21, 2009. They refused three times to attend at a damage match-up comparison appointment, citing what they said, to them, seemed an unwarranted inconvenience, given that they had appeared at a claim centre once already. [ 40 ] Eventually, as a result of ICBC communications with them that went through Ms.

Anderson’s lawyer, they did finally agree to attend a damage match-up comparison appointment at an ICBC claims centre in Surrey. [ 41 ] The explanations given by Mr. Roome and his witness and room mate, Ms. Anderson, for their reluctance to cooperate with ICBC in its investigation of their claim are not believable. It is trite law that insureds, like Mr. Roome and Ms. Anderson, have a duty to cooperate with their insurers. For a discussion of that duty, see, for example, Travellers Indemnity Co. v. Sumner Co. Ltd ., [1961] I.L.R. 1-179 (N.B.S.C.) .

But, more than that, as persons wishing to have their claims processed and paid out, Mr. Roome and Ms.

Anderson had a direct interest in moving the process along and providing full cooperation to ICBC so that a final disposition of them could be realized as soon as possible. [ 42 ] Here, the rationale for their reluctant cooperation—mere inconvenience—lacks an air of reality. It is reasonable to infer that that rationale has been set up to mask what I consider to be a rather obvious, alternative explanation. I have already found that the motor vehicle accident that was at the centre of Mr. Roome’s claim for indemnity by ICBC did not, in truth, occur as they said it did.

As ICBC got more and more interested in the claim from an investigative point of view, Mr. Roome and Ms. Anderson became less and less keen to deal with ICBC. In other words, their conduct in their dealings with ICBC is inconsistent with (or is disharmonious with) what would expect an insured to do in connection with a legitimate claim, but consistent with that which one would expect to find in circumstances where an increasingly nervous insured has predicated a claim upon facts which are false. Alleged Shenanigans at ICBC’s Surrey Claims Centre [ 43 ] As noted, after much effort, ICBC was finally able to get Mr.

Roome and Ms. Anderson out to a claims centre in Surrey in order to perform the damage match-up comparison between Mr. Roome’s Malibu and Mr. Rajput’s Toyota with which the license plate number 276JNV is associated. At that appointment, ICBC’s employee and expert witness at trial, Mr. Keleny, performed the assessment and concluded that the damage on the two vehicles did not match and that they could not have collided as contended by Mr. Roome. [ 44 ] In their testimony, Mr. Roome and his witness Ms.

Anderson sought to impugn the damage match-up comparison carried out by ICBC, along with the conclusion it produced, in ways that I found unconvincing. [ 45 ] To begin, Mr. Roome gave evidence to the effect that the vehicle that was brought to the match-up appointment was, though bearing the 276JNV license plate and similar in some ways, not the same vehicle that rear-ended his Malibu on March 21, 2009. In his testimony he expressed his belief that the plate from the true vehicle had been switched to the vehicle brought to the appointment so as to avoid the detection of matching damage and defeat his claim.

Remarkably, he predicated this belief upon the state of attachment of the license plate, stating under oath that he could see that it was barely held in place by its mounting screws, given that they were engaged by only a “half turn”. I say “remarkably” because the Mr. Roome who claimed to have made that very precise and acute observation is the same Mr.

Roome who, in desperate need on March 21 st of identifying information for an uncooperative driver who had just rammed into the back of his Malibu at considerable speed, also testified under oath that he couldn’t read the large and prominent numbers on the same license plate at close range on the date of the alleged accident. Either Mr. Roome can see license plate details or he can’t. When he contended at one time not to have seen that which should have been plainly visible and, at another, to have noted almost microscopic detail regarding the screws holding the plate in place, Mr.

Roome dealt yet another blow to his already badly damaged credibility. [ 46 ] The suggestion that the other driver would have run the risk of arousing the suspicions of ICBC by engaging in such an amateurish plate-switching ploy is sheer speculation, and manifestly fanciful and self-serving speculation at that. It is also preposterously nonsensical. If the other driver were to have been so unwise as to switch plates as Mr.

Roome says he did, what possible reason could he have for attaching the switched plates so poorly to the vehicle he brought to the claims centre that he would increase the risk of detection (not to mention the risk that the switched plates, held in place by screws engaged only by a “half turn,” might fall off en route )? The claimant’s evidence in this regard makes no sense. [ 47 ] Beyond that, there is the fact that Mr. Rajput gave evidence-in-chief to the effect that he attended at the damage match-up comparison appointment in his Toyota Corolla.

Despite this fact, the claimant’s plate-switching theory was not put to him during cross- examination. The Playing of the Race Card [ 48 ] Both Mr. Roome and Ms. Anderson gave a sinister and alarming account of certain events that they said occurred at the damage match-up appointment, suggesting that ICBC, in effect, fraudulently carried out the damage assessment with a view to relieving the driver of the other vehicle (a man of “East Indian persuasion” in Mr. Roome’s words) of any liability for the subject accident.

While it was not stated expressly that the actions of an ICBC employee allegedly of East Indian extraction at the match-up appointment constituted a fraudulent act of favouritism motivated by racial considerations, I am satisfied that that is the only inference that can reasonably be taken from their testimony. The alleged racial origin of ICBC’s primary actor at the appointment is otherwise of no moment whatsoever and would not have arisen in evidence. [ 49 ] The story told in Mr. Roome and Ms.

Anderson’s testimony goes as follows: upon first arriving at the Surrey Claims Centre for the match-up damage comparison, a Caucasian employee of ICBC called “Mike” began dealing with them. He started taking photographs of the Malibu and 15 minutes into the process he was interrupted by an East Indian ICBC employee. This East Indian employee was described as being very hostile in his demeanour to “Mike,” and very unhappy about the fact that the latter was taking photos.

He told “Mike” to stop taking photos, to delete all photos taken to that point from his camera and to forget that he had ever had had any dealings with the Malibu. The East Indian ICBC employee, the story goes, continued to “rip into” this person called “Mike” (or, in Ms. Anderson’s words, “ream him out”) in the presence of Mr. Roome and Ms. Anderson, following which the East Indian employee took over the examination and quickly and summarily ruled out the Toyota Corolla with license plate 276JNV having caused damage to the Malibu in any motor vehicle accident. He did so, Mr. Roome and Ms.

Anderson said, without taking measurements or photos. The interaction concluded with the East Indian ICBC employee telling both Mr. Roome and Ms. Anderson to “get out” of the claims centre. [ 50 ] The previously mentioned Mr. Keleny was called as a witness at trial by ICBC. He confirmed that it was he who carried out the damage comparison match-up assessment of the Malibu when Mr. Roome and Ms. Anderson attended at the Surrey Claims Centre. He serves as the Material Damage Manager at that claims centre and, as of the time of trial, had been an employee of ICBC for 23½ years.

He has, over the course of his career, carried out approximately 700 damage comparison match-up assessments. [ 51 ] Mr. Keleny testified, by consent, as an expert in the area of “patterns of damage and determinations of matching damage to assess whether one vehicle caused damage to another”. He gave his opinion that the damage on the Malibu was not caused by any contact with the Toyota Corolla associated with the license plate number 276JNV that also attended at the appointment. These

conclusions are also recorded in a file note which Mr. Keleny made and identified and which assisted him in confirming that the appointment occurred on September 18, 2009 (Exhibit 3). [ 52 ] Mr. Keleny testified that on the date of the subject appointment, he was the highest ranking ICBC employee on duty at the claims centre. He recalled nothing odd about the appointment and, importantly, he did not recall anyone interfering with his examination of the vehicles or yelling at him. These are things that, not surprisingly, he said he believed he would remember if, in fact, they had occurred. [ 53 ] Mr.

Keleny testified that in some, but not all, such match-up examinations measurements and photos are taken. He had a recollection of some photos, but not measurements, being in the file. However, those photos have not been produced or relied upon by ICBC. [ 54 ] As to whether anyone else assisted in the examination, Mr. Keleny testified that it was possible but not likely.

He also testified that it was not his routine practice to check VIN numbers against license plates or take identification from those who attend such appointments. [ 55 ] One enters somewhat hazardous waters when one begins to speak of whether an individual is “obviously” or “apparently” a member of a visible minority. Counsel for Mr. Roome submitted in argument that I could find that Mr. Keleny was the East Indian ICBC employee who interfered with the match-up investigation initiated by “Mike”. In answer to that, I first observe that, for what it’s worth, Mr.

Keleny did not appear to me to be of East Indian origin. In that impression, I could be right or I could be wrong. However, and much more importantly, it was open to counsel to elicit evidence during cross-examination that would confirm or refute that assertion about Mr. Keleny’s racial heritage. He did not do so. In these circumstances I am not prepared to find, without reliable evidence, that Mr. Keleny is an East Indian person. Neither am I prepared to find that Mr.

Keleny—whose first name is “Roderick” and who was the highest ranking ICBC employee present at the claims centre at the time of the appointment—was the “Mike” referred to in the claimant’s testimony and whose match-up investigation was interfered with by a hostile East Indian ICBC employee who aggressively asserted dominant authority over him. The fanciful and improbable nature of the evidence given by Mr.

Roome here undercuts the contentions in his counsel’s arguments about the alleged improprieties concerning the role said to have been played during the damage match-up appointment by ICBC employee of East Indian extraction. [ 56 ] Just as importantly, when examined in chief, Mr. Keleny testified that he did not remember anything “odd” about the damage match-up appointment. That evidence was not probed by Mr. Roome’s counsel in cross-examination.

It was never put to him that he or another employee had commenced the investigation, only to be chased off it, told to delete from a camera any photos taken of the Malibu in the course of it and told as well to forget he had ever dealt with the vehicle. The account of the way the appointment occurred given by the claimant and his witness was very odd indeed, and (I am quite sure) would have been strikingly memorable to anyone involved. It is passing strange that Mr.

Keleny’s recollection of it as being routine and unmemorable was not challenged, much less discredited, during his cross examination. [ 57 ] Given the way the evidence went in at trial, I am unable to accept as credible the evidence of Mr. Roome and Ms. Anderson that Mr. Keleny or any ICBC employee put on the highly improbable display that they say was put on at the match-up appointment. Moreover, it must be recalled that Mr. Rajput testified that he was there for the appointment. It was open to counsel for Mr. Roome to press Mr.

Rajput regarding his recollection of what, surely, would have been profoundly memorable events to him. But, like Mr. Keleny, Mr. Rajput was not asked any questions about the aggressive and fraudulent activities that were allegedly carried out in plain view by an ICBC employee of East Indian extraction at the match-up examination. [ 58 ] At the end of the day, while it would have been helpful if ICBC had been able to locate all of its records of the appointment (especially the photographs that Mr. Keleny recalls were taken), I find as a fact, based mainly on Mr.

Keleny’s forthright testimony, that the absence of matching damage on the Malibu and the Toyota Corolla associated with the license plate number 276JNV was relatively obvious and was determined to be so by Mr. Keleny in the course of a routine assessment that did not involve any of the bizarre and sinister activities about which Mr. Roome and Ms. Anderson gave such colourful, but ultimately incredible, testimony. DISPOSITION AS TO LIABILITY [ 59 ] As I noted at the commencement of these Reasons for Judgment, Mr.

Roome’s personal injury claim is predicated upon his assertion that he suffered damage, loss and expense in a motor vehicle accident that occurred on March 21, 2009, near the corner of King George Highway and 72 nd Avenue in Surrey, B.C. In order for the claim to have any prospect of success of any kind, I had, as a threshold point, to be persuaded by the evidence that the motor vehicle accident (about which Mr. Roome and his witness, Ms. Anderson, testified) in fact occurred. For the reasons I have given above, I am unable to believe the evidence that Mr. Roome and Ms.

Anderson gave seeking to persuade me that the Malibu was rear-ended on March 21, 2009, near the corner of King George Highway and 72 nd Avenue. Their testimony regarding the alleged accident, and what followed in its wake, defies belief for the reasons I have given. Their account of the accident, and the steps taken on the heels of it, in Faryna terms, lacks “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable” in the circumstances. I therefore reject it. [ 60 ] Mr. Roome’s claims against all defendants are accordingly dismissed.

PENALTY [ 61 ] In written submissions counsel for the defendants has sought an order under Rule 20(5) of the Small Claims Rules requiring that Mr. Roome pay an amount up to 10% of the value of his claim to Mr. Rajput as a penalty (that is, an amount up to $2,500). [ 62 ] In High Country Outfitters Inc. v. Pitt Meadows (City) (2012), 71 C.E.L.R. (3d) 190 (Prov. Ct.) , I described the test for granting an application for a Rule 20(5) penalty in this way: “The jurisdiction to order such penalties is exercised sparingly. As the Rule itself states, it is reserved for those cases where a losing

party has proceeded to trial with "no reasonable basis for success". As to policy, Rule 20(5) is intended to discourage unreasonable litigants from putting other litigants to the expense and inconvenience ofgoing to trial where the dictates of reason urge the abandonment of claims or defences that are manifestly non-maintainable. An ancillarypurpose for the Rule is that of preserving court resources for the adjudication of those disputes in which the positions taken by bothparties have some apparent merit and which justify the invocation of the costly and time-consuming trial process.

In those cases where penalties have been awarded, reference is often made to shocking or reprehensible conduct on the part of the losingparty, or to oblique and improper motives having been a factor in the losing party's persistence in prosecuting a manifestly non-maintainable claim or asserting a plainly non-meritorious defence: see, for example, Lindner v. Billick, [2007] B.C.J. No. 1000 (Prov.Ct.), Braithwaite v. Duncan Swim Club, 2008 BCPC 68 , 2008 BCPC 68 and Teal-Jones Group v. Tyner, [2011] B.C.J. No.2303 (Prov.

Ct.) ...” (at paras. 99-101) [63] A claim for personal injury which is claimed to have resulted from a motor vehicle accident that never in fact occurred mayhave a basis for success if the court is deceived, but it has no “reasonable basis for success” (emphasis added). Mr. Roome’s conduct inbringing this action in such circumstances is shocking and deserving of the court’s rebuke. In the circumstances I consider that I amjustified in exercising my discretion under Rule 20(5) to order that he pay a penalty in the amount of $1,250 to Mr. Rajput.

I order thathe do so forthwith by delivering a bank draft, certified cheque or solicitor’s trust cheque, in the aforementioned amount, payable to“Lindsay Kenney LLP, in trust for Mazhar Rajput,” to Mr. Kaukas, defendants’ counsel, not later than August 9, 2013. FEES AND EXPENSES [64] Given the disposition of Mr. Roome’s claims reflected in the foregoing, the defendants are entitled to payment by him of theirfiling fees, service fees and reasonable expenses pursuant to Rule 20(2). I expect that the quantum of their recovery in this regard canand will be worked out between counsel by agreement.

In the event that that quantum is not susceptible of resolution in that manner byOctober 4, 2013, I order pursuant to subrules 20(3) and (4) that the parties attend before the registrar to obtain a ruling as to the filingfees, service fees and reasonable expenses that are properly payable to the defendants by Mr. Roome in this matter. [65] Orders accordingly. __________________________Thomas S. Woods, P.C.J.