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Monday Morning Case Bites for July 8, 2019

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Amanda Kostek & Christie Dewar

Andrews v Toor, 2019 ABCA 268
Motor Vehicle Accident | Liability | Uncontrolled Intersection

Condominium Plan No 0213028 v Pasera Corporation, 2019 ABQB 485
Limitation period | Structural deficiencies

Andrews v Toor, 2019 ABCA 268

This was an unsuccessful appeal of a decision attributing liability 50/50 between two vehicles that were involved in a T-bone collision at an uncontrolled intersection.  The Trial Judge concluded that the Defendant, a taxi driver, had the right of way, because although both vehicles came to the intersection at roughly the same time, the Defendant’s vehicle was on the right.   At Trial, the Defendant taxi driver was found contributorily negligent on the following basis:

[14]           Before reaching his final conclusion in respect of liability, the trial judge also made the following findings about Toor’s evidence:

His narrative of the events would lead me to believe that, 1) he knew that the servient [Andrews’] vehicle was coming very fast and that, when he saw it coming very fast, it was only six to seven car-lengths away, and 2) he then looked to his right for one to two seconds before proceeding forward normally. He was an experienced commercial driver, he had a fare. It’s highly unlikely he would have proceeded under those circumstances without looking left again. Anybody would know that if another car was coming fast and it was only six to seven car-lengths away, it would soon be there. And it was imprudent and careless to proceed in those circumstances. And in fact, I would consider that most drivers would consider that to be taking a big risk. And yet he’s a class 1 and a class 4 commercial driver. And so, in my view, this evidence simply is inherently improbable. [emphasis added]

[16]            In assessing fault, the trial judge found that Toor could have braked to avoid the collision and “the most likely explanation is that he wasn’t paying attention.” He also found Andrews was negligent for “not seeing what was there to be seen [Toor’s vehicle].” Applying section 1(1) of the Contributory Negligence Act, RSA 2000, c C-27, the trial judge apportioned each driver equal liability.

The Court of Appeal accepted that although the driver with the right of way was entitled to assume that the Plaintiff would obey the rules of the road, the Defendant could still be found contributorily negligent if he knew a collision was imminent, but took no steps to avoid the collision:

[23]           We also agree with the trial judge that the onus rested with Andrews, as the person driving the vehicle to the left, to establish that Toor ought to be found liable notwithstanding that he had the right of way. This Court in McElhatton v Wales, 2000 ABCA 94 (CanLII) at paras 15-17, 255 AR 183 [McElhatton], citing with approval Brownlee v Harmon, 1952 CanLII 328 (SCC), [1952] 2 DLR 450 at 461, [1952] SCJ No 56, articulated the onus on Andrews in this way:

According to that test, the appellant [dominant driver] cannot be found liable unless the respondent can prove that the appellant was aware or reasonably should have been aware of the impending accident and had an opportunity to avoid the collision which a reasonably skillful driver would have taken. [emphasis added]

[24]           Here, Toor was the driver with the right of way (the driver of the vehicle on the right) and could not be found liable unless Andrews proved that he was aware or reasonably should have been aware of the impending accident and had the opportunity to avoid the collision. In other words, while Toor was entitled to assume that Andrews would obey the rules of the road, in this case the Rules of the Road, and yield to his vehicle on her right, if he knew or should have known that a collision was imminent and did nothing to avoid it, he could be found to be negligent in his duty of a care as a reasonable driver.

[26]           Section 115(a) of the Traffic Safety Act makes it mandatory that drivers obey the Rules of the Road. Section 34 of the Rules of the Road provides that when two vehicles approach or enter an intersection from different directions at approximately the same time, the person driving the vehicle to the left shall yield the right of way to the vehicle on the right. The respondent did not obey that rule and was found liable for that reason. However, section 115(1) of the Traffic Safety Act also requires drivers to drive with due care and attention and with reasonable consideration for others using the road. The trial judge found that the appellant failed to drive with due care and attention or with reasonable consideration for others using the road and therefore was contributorily negligent.

The Appeal was dismissed on the following basis:

[27]           Drivers are entitled to assume other users of the road will obey the rules of the road. The Supreme Court has said that the autonomous movements of automobiles can only be made in safety if drivers can rely on the observance of the rules by others: Johnson National Storage Ltd v Mathieson citing Toronto RW Co v King (both cited above). However, there are many Rules of the Road governing many different vehicular movements. Breaches of the Rules of the Road and breaches of the Traffic Safety Act can be evidence of negligence. When two vehicles collide, it is not uncommon to find breaches by both drivers. That is what the trial judge found here. He found breaches and negligence by both drivers. Neither party was driving with due care and attention or with reasonable consideration for others using the road. The record amply supported the trial judge’s application of the law to the facts and an apportionment of liability as a consequence. We discern no error of law.

Condominium Plan No 0213028 v Pasera Corporation, 2019 ABQB 485

This was an unsuccessful application for Summary Dismissal on the basis that the Plaintiff missed the limitation period. In 2008 the Plaintiff filed a claim as a result of water ingress issues.  The Defendant HCI was not named in the original claim. In 2012 the Plaintiff filed a separate claim alleging deficient framing of the condominium complex.  HCI was named as a Defendant in the second action. HCI brought a Summary Dismissal application alleging that the poor wall design was known in 2008, and therefore should have formed part of the earlier action.  The Plaintiff responded that the actions were different. The first action was for water ingress, and the second related to structural deficiencies discovered in 2010:

[5]               The Plaintiff responds that there are two actions, an action claiming damages from water ingress and a second action claiming damages for structural deficiencies, namely improper sizing of studs in the exterior walls. The Plaintiff argues that the structural deficiencies related to framing were not known until July 14, 2010 when it was advised of the results from a separate investigation which confirmed that studs used in the exterior walls were of insufficient thickness, were improperly placed, and threatened the structural integrity of the building. Accordingly, the Plaintiff states that the 2012 Action was brought properly against HCI within the two-year discovery period from when the Plaintiff obtained knowledge that the injury occurred and ascertained that it warranted bringing a proceeding.

The application was dismissed on the following basis:

[6]               In the result, I find that the test for summary judgment is not met as the Defendant has not proved its defence on the basis of limitations. In other words, the Defendant has not demonstrated that there is no genuine issue for trial.

[7]               The 2008 Action was focused on deficiencies related to water ingress and damage to structural integrity caused by water induced corrosion. The 2012 Action arose because of the discovery by the Plaintiff that the materials, namely the studs, used to construct the building threatened the actual structural integrity of the exterior walls and the building. These are two different injuries attracting two different triggering dates for purposes of the Limitations Act RSA 2000, c L-12.

[8]               Further, the facts support that the size of the studs and the effect on structural integrity of the condominium were not discovered, nor with reasonable diligence, ought to have been discovered, until after the Plaintiff had conducted a separate and targeted investigation. It was only then, upon receiving the results of this investigation that proceedings were warranted.