2005 BCSC 149 Raponi v. Phagura et al

Before: The Honourable Mr. Justice Scarth

Reasons for Judgment

Counsel for the Plaintiff:	Wade D. Simpson
Counsel for the Defendants, Kulwinder Phagura and Jaspreet Phagura:	Kent Sanderson
Counsel for the Defendants, Primus Automotive Services Canada Inc., All Season Mushroom Farms Inc., and Ernest Joseph Deaust:	Patrick L. Doherty
Date and Place of Trial/Hearing:	January 28, 2005
	Vancouver, B.C.

[1] The plaintiff Albert Raponi claims damages for injuries he alleges were sustained in a motor vehicle accident on August 16, 1998. Liability and damages are in issue. The trial commenced on January 24, 2005 and continued for the following four days. At the close of the plaintiff’s case counsel for the defendants Primus Automotive Financial Services Canada Inc., All Season Mushroom Farms Inc. and Ernest Joseph Deaust, Mr. Doherty, moved pursuant to Rule 40(10) for an order dismissing the action against those three defendants on the ground the evidence is insufficient to make out the plaintiff’s case against them.

[2] Subrules (8) to (11) inclusive of Rule 40 are as follows:

No evidence motion

(8) At the close of the plaintiff’s case, the defendant may apply to have the action dismissed on the ground that there is no evidence to support the plaintiff’s case.

Idem

(9) A defendant is entitled to make an application under subrule (8) without being called upon to elect whether or not to call evidence.

Insufficient evidence motion

(10) At the close of the plaintiff’s case, the defendant may apply to have the action dismissed on the ground that the evidence is insufficient to make out the plaintiff’s case.

Idem

(11) Unless the court otherwise orders, an application under subrule (10) may be made only after the defendant has elected not to call evidence.

[3] On behalf of his clients Mr. Doherty informed the Court that they have elected pursuant to Rule 40(11) not to call evidence.

[4] Mr. Sanderson is counsel for the defendants Kulwinder Phagura and Jaspreet Phagura. Mr. Sanderson informed the Court on the hearing of the application that when the trial resumes on February 16 his clients will call evidence. Mr. Sanderson takes no position with respect to Mr. Doherty’s application for a non-suit, but states that his clients allege no negligence on the part of Mr. Doherty’s clients.

[5] Given that the defendants Kulwinder Phagura and Jaspreet Phagura have not given their version of the events the Court at this stage of the proceedings is not able to make any findings of fact as to how the accident occurred. For the purposes of the motion I find that the plaintiff in essence was driving a van in a northerly direction in the left lane of the Alex Fraser Bridge at a point where the two north bound lanes of bridge traffic intersect with north bound traffic from Nordel Way which in effect then forms a third north bound traffic lane. According to the plaintiff a white jeep travelling in the lane to his right was struck by an out of control black Honda in the Nordel Way lane, thus causing the white jeep to strike the right side of his van and force it into the concrete divider which separates the north bound lanes from the south bound lanes.

[6] Mr. Doherty submits that the evidence is insufficient to make out the plaintiff’s case against the defendant Mr. Deaust on two grounds. First, there is no evidence that he was the driver of the white jeep at the time of the accident. Secondly, there is no evidence that any negligence on the part of the driver of the white jeep, whoever that driver may have been, caused or contributed to the accident. Finally, Mr. Doherty points out that in the statement of claim it is alleged that the accident occurred “On or about August 14, 2000 at or near the South end of the Alex Fraser Bridge in Surrey, BC” whilst the accident referred to in the evidence presently before the Court is said to have occurred on August 16, 1998.

[7] Mr. Doherty further submits that there is no evidence at all to connect either the defendant Primus Automotive Financial Services Canada Inc. or the defendant All Season Mushroom Farms Inc. to the matters before the Court.

[8] The rule that in an action against more than one defendant the Court ought not dismiss the action against only one defendant at the close of the plaintiff’s case: Fenton (Guardian ad Litem of) v. Baldo, [2001] B.C.J. No. 250 (C.A.), referring to Ayer Mountain Estates Ltd. v. McElhanney Surveying & Engineering Ltd. et al (1978), 7 B.C.L.R. 310 (B.C.S.C.) at 313; Hunt v. MacLeod Const. Co., [1958] S.C.R. 737 at 742, does not in my opinion apply here. The remaining defendants make no claim against the defendants seeking the non-suit and thus there can be no possibility of an apportionment of liability by the Court.

[9] With respect to the issue of whether the plaintiff has shown that Mr. Deaust was the driver of the white jeep and that the defendants Primus Automotive Financial Services Canada Inc. and All Season Mushroom Farms Inc. are somehow connected with this case Mr. Simpson relies on exhibit 11 and the parts of Mr. Deaust’s examination for discovery read in during the plaintiff’s case. Alternatively, Mr. Simpson submits, the plaintiff seeks leave to adduce further evidence of the fact that Mr. Deaust was the driver of the jeep at the time of the collision.

[10] Mr. Doherty submits that having elected to call no evidence, if the Court declines to accede to his argument that there is no evidence Mr. Deaust was the driver of the jeep at the relevant time it ought not to give the plaintiff a “second bite at the apple” by allowing him to reopen his case: Concord Credits Ltd. v. Frankel, [1971] 1 W.W.R. 470 (B.C.S.C.).

[11] I would not dismiss the plaintiff’s action against Mr. Deaust on the basis that it has not been shown he was the driver. There is “some” evidence, I find, in exhibit 11 indicating Mr. Deaust’s connection with the white jeep, and in the portions of his examination for discovery read in an indication he was driving a vehicle struck by another car. Given Mr. Simpson’s assurance he could establish that Mr. Deaust was the driver of the white jeep involved in the accident in question by a “read in” I decline to give effect to Mr. Doherty’s motion on that basis. In other words, I would grant the plaintiff leave to re-open his case to present further evidence that Mr. Deaust was the driver of the white jeep at the relevant time: Mandzuk v. Vieira and Insurance Corporation of British Columbia (1983), 43 B.C.L.R. 347 (S.C.) at 349-50.

[12] This being an insufficient evidence motion the Court, sitting as the trier of fact, must weigh the evidence before it and determine whether the plaintiff has discharged the burden resting upon him of establishing legal liability on the part of the defendant: Roberge v. Huberman (1999), 62 B.C.L.R. (3d) 385 (C.A.), at 394, 401:.

[13] In essence Mr. Simpson, on behalf of the plaintiff, argues that Mr. Deaust’s negligence in the operation of the white jeep consisted in his failure to keep a proper look-out as the result of which he collided with the plaintiff’s vehicle. Mr. Simpson refers to the “read-ins” from Mr. Deaust’s examination for discovery in support of this submission. These read-ins are as follows:

211 Q Okay. Now, before the accident occurred, had you seen the van anywhere?

A No.

215 Q When was the first time you saw the car that hit you?

A Upon impact.

219 Q At any time during the accident, did you use your horn?

A No.

223 Q So at no time either just before or during the accident were you able to brake?

A Not to my recollection.

224 Q And when you say not to your recollection, there’s no reason that that’s going to change, is there?

A No.

229 Q Well, do you think the van caused the accident?

A No.

230 Q You don’t have any reason to think the driver of the van caused the accident?

A No.

[14] The reference to a van in this testimony is a reference to the plaintiff’s vehicle which was, immediately prior to the impact between the plaintiff’s vehicle and Mr. Deaust’s jeep, travelling side by side with Mr. Deaust’s jeep. As between those two vehicles the plaintiff did not contribute to the cause of the collision by any act of negligence on his part. Further, I accept Mr. Doherty’s submission that the jeep had no opportunity to avoid the collision. Without assigning negligence to anyone else I find there was no negligence on the part of Mr. Deaust in the operation of the white jeep.

[15] In the result the motion by Mr. Doherty for the dismissal of the action against Mr. Deaust, Primus Automotive Financial Services Canada Inc. and All Season Mushroom Farms Inc. is granted and the action is dismissed against them.

[16] Costs may be spoken to.

“W.B. Scarth, J.”
The Honourable Mr. Justice W.B. Scarth