IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130419

Docket: M091250

Registry:
Vancouver

Between:

Seyed Mostafa
Sepasi

Plaintiff

And

Dmitriy Smotrov
and Four Star Auto Lease Ltd.

Defendants

Before:
The Honourable Madam Justice Loo

Reasons for Judgment

I.     Introduction

[1]            
The plaintiff Seyed Sepasi was driving a taxi on April 6, 2007 when the
right rear passenger side of his vehicle was struck by a vehicle owned by the
defendant Four Star Auto Lease Ltd. and driven by the defendant Dmitriy Smotrov. 
The accident occurred around 10:30 in the evening when Mr. Sepasi was
attempting to enter the Shell gas station at the northeast intersection of
Granville Street and 71st Avenue, Vancouver. The parties have agreed to sever
liability and damages.

[2]            
This action was commenced on March 6, 2009 and a statement of defence
filed on May 12, 2009.  There was a delay of approximately two years when submissions
were made under s. 257 of the Workers Compensation Act, R.S.B.C. 1996,
c. 492 [Act].  Presumably the defendants were seeking a determination
that Mr. Sepasi was a worker at the time of the collision.  However proceedings
under the Act were abandoned.

[3]            
The defendants then applied under Rule 9-7 for a summary trial order
that Mr. Sepasi was solely liable for the accident, or contributed to the
accident.  On October 5, 2012 Madam Justice Brown dismissed the application on
the ground that the court was unable to decide the issues on the affidavits.

[4]            
On October 6, 2012 Mr. Sepasi sustained injuries in a second motor
vehicle accident.

[5]            
At the outset of this trial, counsel informed the court that the parties
had agreed to sever liability and damages and that the only issue was liability
for the first accident on April 6, 2007.  While generally the courts are
reluctant to order severance, there was no argument on the issue.  I am also
mindful that the first accident occurred five years ago, and there will
obviously be further delays if this action were to be heard at the same time as
the second action.

[6]            
Another difficulty relates to the non-attendance at trial of the
defendant Dmitriy Smotrov.  Mr. Smotrov lived in Richmond or Vancouver for a
number of years before moving to Costa Rica around 2007.  I am told that he
works in the jungles of Costa Rica as a wild life photographer and is
inaccessible for long stretches of time.

[7]            
An order was made at the case planning conference on February 27, 2012
that barring unforeseen or urgent circumstances, Mr. Smotrov was to present
himself in Vancouver and attend an examination for discovery no later than
April 12, 2012, which he did.

[8]            
Mr. Smotrov was examined for discovery in Vancouver on April 18, 2012. 
Mr. Burgoyne, counsel for the defendants, said that when he saw Mr.
Smotrov in April 2012, he made him aware of the trial date, and has tried unsuccessfully
to contact him for about two months before the trial.  Despite the failure of
Mr. Smotrov to attend trial, Mr. Sepasi wanted to proceed with the trial.

[9]            
There are competing versions of the accident.  Mr. Sepasi says that he
was driving northbound at the time of the accident.  One witness claims that he
was driving eastbound before the accident.  Another witness says that he was
driving southbound before the accident.  For reasons which follow, I conclude
that just before the accident Mr. Smotrov was driving northbound on Granville
Street, drove through the intersection at 71st Avenue and had just about
completed his turn into the Shell gas station at the northeast corner of
Granville and 71st Avenue, when the rear passenger side of his vehicle was
struck by the left front driver’s side of the defendants’ vehicle.

II.    The Case for the Plaintiff

Seyed Sepasi

[10]        
Mr. Sepasi is 62 years old.  He obtained a degree in civil engineering
in Iran and operated a small engineering company before he left Iran for
political reasons.  He went to Turkey before he immigrated to Toronto in 1992. 
He has lived in Vancouver since the end of 1999, and has worked at a car
dealership and driving taxis. He owns or leases fifty percent of a Richmond
taxi or its “plates” with a partner who owns or leases the remaining interest.  Mr.
Sepasi is very soft spoken and English is obviously not his first language.

[11]        
At the time of the accident, Mr. Sepasi worked during the week at a
small car dealership  as a kind of manager who sat in an office and approved
car “deals”.  He testified that it was not a very busy job because there were
not many customers, and he spent most of his time in the office studying
English.

[12]        
On April 6, 2007 Mr. Sepasi got off work from the car dealership at 6:00
p.m. and started driving for Richmond Taxi at around 8:00 in the evening.  At
around 10:30 p.m., he drove west on Marine Drive and dropped a passenger off
under the Arthur Laing bridge.  He then proceeded around the curve in the road
and merged with the traffic coming off the bridge northbound on Granville
Street.  His destination was the Shell gas station at the northeast corner of
Granville and 71st Avenue.

[13]        
From the point where traffic from Southwest Marine Drive merges with the
northbound traffic off the bridge, Granville Street is not intersected by east-west
traffic until 71st Avenue, so that Mr. Sepasi had one long curving block from
roughly 73rd Avenue (if it intersected Granville Street) to get to 71st Avenue. 
Along that stretch of roadway there are three northbound lanes.  Parking or
stopping is prohibited in the curb lane between 6:30 a.m. to 6:30 p.m.  At the
southeast corner of Granville and 71st Avenue there is a three-story building
that appears to be an apartment building with a number of small stores on the
ground floor, including a small convenience store known as 71 Food Store at the
southeast corner of the building.

[14]        
Mr. Sepasi testified that as he drove from under the bridge to
northbound along Granville Street, he was in the curb lane.  Just before he
reached 71st Avenue, he was forced to stop because there was one or two
vehicles parked in front of the 71 Food Store.  He waited for the traffic to
pass before he merged into the centre or middle lane, turned on his right turn
signal, crossed 71st Avenue, and approached the curb lane so that he could turn
into the gas station.  As he crossed 71st Avenue intending to move into the
curb lane, he saw a few people standing at the northeast corner waiting to
cross the north cross walk, including a man and his dog.  While the man talked
to another person, his dog stood partly on the sidewalk and partly in the
crosswalk.  Because of where the dog was standing, he was cautious about his
right wheel coming too close to the dog. He approached the gas station, with
his vehicle partly in the curb lane (to avoid the dog), but mostly in the
middle lane when he turned into the entrance to the station.  He applied his
brakes for a couple of seconds to allow a male pedestrian to cross in front of
him, and then began to accelerate when he suddenly heard a big bang.  He
thought that his gas tank had exploded.  His vehicle spun out of control and
when it finally came to a stop, it was facing south.

[15]        
Mr. Sepasi testified that he was helped out of his vehicle, and someone
told him that his vehicle had been struck by the Mercedes-Benz.  He did not
know that his vehicle had been struck by another vehicle.  He saw two gentlemen
from the Mercedes-Benz, but never saw the Mercedes-Benz until after the
collision when he was seated on the concrete just outside the gas station Food
Store.  When the driver of the Mercedes-Benz came over and asked him if he was
okay, he smelled alcohol “when he came to my face”.

[16]        
A sketch (to scale) of the area shows that the distance from the south
edge of the south cross walk to the north edge of the north cross walk is nearly
70 feet.  From the curb, there is roughly 20 feet between the middle of the
crosswalk to the south edge of the entrance to the gas station.  In other
words, once Mr. Sepasi crossed 71st Avenue, he had to make an almost immediate
right turn to enter the gas station.

[17]        
Photographs show that the damage to Mr. Sepasi’s vehicle was at the very
rear of the passenger’s side.  There is visible damage at the corner and along
the bottom of the left rear panel. The Mercedes-Benz sustained damage to the
right front fender and headlights on the driver’s side.  The right front bumper
has come away and the right front area of the hood has buckled up.

[18]        
Mr. Sepasi’s evidence did not change on cross-examination.  He insisted
that he was in the middle lane up to the north crosswalk; he was cautious of the
dog and the pedestrian, and his vehicle was “almost half way to the curb lane”
when he turned into the gas station.  However, he never checked to see if a
vehicle was coming from his right because he was paying attention to the
pedestrian, there was a car parked on the south side of 71st Avenue, and he was
certain that no one was coming along the curb lane on Granville Street.

III.   The Case for the Defendants

Junyi Qian

[19]        
Mr. Qian is presently 30 years old and works as a realtor.  In April
2007, at the time of the accident, he was a student at the University of
British Columbia.

[20]        
Mr. Qian testified that the evening of April 6, 2007 he was driving a
2002 Honda Accord. He had come from Richmond and was headed home.  He came off
the Arthur Laing bridge and was driving north on Granville Street lane.  Traffic
was light.  He was driving in the furthest left hand lane, but it is possible
that he was driving in the middle lane when he first saw the taxi.  The taxi was
“quite far” away, at least 100 metres away.

[21]        
However, Mr. Qian is not certain where the taxi came from, or where the
Mercedes-Benz was in relation to the taxi.  He said at one point that the taxi
came from eastbound on 71st Avenue, or from the far left lane on Granville
Street, when he saw the right side of the taxi as it changed direction or made
a lane change across three lanes of traffic.  At another point in his evidence,
Mr. Qian said that when he first observed the taxi, it was just south of the
intersection at Granville and 71st Avenue in the far left lane, or far left
part of the intersection and headed northbound.  He noted on a sketch of the
area, the location of the vehicles when he first saw them:  he has the taxi in
the intersection, just north of the south crosswalk and the far left lane, the Mercedes-Benz
in the curb lane and approximately 120 feet or 36.5 metres from the intersection;
and his Honda Accord in the far left lane.  He also notes a third vehicle, a
van or SUV, in the middle lane, in front of the Mercedes-Benz, but further
behind the taxi.  Still at another point in his evidence Mr. Qian said
that when he first saw the taxi, the Mercedes-Benz was 50 metres or maybe less
from the intersection.

[22]        
Mr. Qian also testified that when he first saw the taxi, it was right at
the mouth of the intersection but he was just not sure whether the taxi was
driving from south to north or west to east.  He said the taxi was “almost like
cutting thee lanes at one time” and the angle was quite dramatic.  The taxi passed
the middle lane in front of the van or SUV, and entered the curb lane where the
collision occurred.  The van or SUV never stopped and drove away.  When he saw
the taxi change lanes, he knew it would be difficult for the Mercedes-Benz to
avoid the collision.  The taxi was struck just before the entrance to the gas
station, went spinning into the gas station, and when it came to a stop, it was
turned around as if it were driving out of the gas station.

Dmitriy Smotrov

[23]        
The defendant Dmitriy Smotrov has recently changed his name to Dimitri
Borodin, but I will refer to him as Mr. Smotrov.

[24]        
Generally, a party who has been examined for discovery may not rely on
evidence from his examination for discovery as part of his or her case (see R.
12-5(46)).  The evidence given on an examination for discovery by a party may
be tendered in evidence at trial by any party adverse in interest.  It
generally follows that a party will rely on that part of an examination for
discovery that supports his or her case and not read in evidence from an
examination for discovery that contradicts his or her case.

[25]        
Mr. Sepasi read in as part of his case, portions of the examination for
discovery transcript of Mr. Smotrov that contradicts Mr. Sepasi’s evidence.  On
examination for discovery Mr. Smotrov testified that the taxi driver cut him
off when he tried to turn into the gas station and that he was unable to avoid
the collision.  However, that evidence must be considered with all of the
evidence.

[26]        
Mr. Smotrov testified that the accident occurred late at night and it
was dark.  Victor Larichev was his front seat passenger, but he cannot remember
how he and Mr. Larichev met up.  He thinks that he picked Mr. Larichev up
from his place, but he cannot recall.  Just before the accident, they were
headed downtown for a meeting at The Lift restaurant in Coal Harbour:  “We were
supposed to meet with someone to discuss a purchase of Victor’s restaurant, he
was selling his restaurant at that time.”

[27]        
Mr. Smotrov testified that he was driving in the curb lane after he
rounded the curve around 72nd Avenue on Granville Street.  As he headed towards
71st Avenue, his recollection of the traffic is vague.  He said “there was some
traffic on the road”, but he cannot recall whether there were vehicles in front
of him, behind him, or beside him.  He testified:

567      Q      Are
there any cars in front of you in that one block or so before the accident?

A      There
may have been, but I can’t recall now for sure.

568      Q      Cars
behind you, or do you know?

A      There
was some traffic on the road, but I can’t remember exactly where each car was.

569      Q      Okay.
What about immediately to your left, in the middle lane?

A      I
believe Mr. Sepasi passed me on my left, but I don’t remember if he was in the
middle lane or if he was in the left lane. He was on my left.

…

571      Q      When
did you first see Mr. Sepasi’s vehicle?

A      I wasn’t paying attention
to his vehicle at all until — I mean I probably saw it, but I wasn’t paying attention,
so it didn’t register. At the moment when I first saw it, when I started paying
attention to it, is when he cut me off.

[28]        
Mr. Smotrov’s evidence is vague.  His evidence is peppered with phrases
such as “I think”, or “I guess”, and “I guess I saw him when he was passing me”. 
He also testified that the taxi was ahead of him “maybe five, six, seven
metres” when he changed lanes and pulled into the gas station.

Victor Larichev

[29]        
Mr. Larichev was the front passenger in the Mercedes-Benz.  At the time
of the accident, Mr. Larichev had known Mr. Smotrov for some five years.  He
knew Mr. Smotrov as a photographer and they are both from Russia.

[30]        
Mr. Larichev testified that Mr. Smotrov had phoned him, and asked if he
could spend some time with him and help him at a business meeting.  He cannot
recall whether Mr. Smotrov picked him up from his place or from the apartment
where Mr. Smotrov lived, but they had crossed the Arthur Laing bridge and
were heading downtown for a meeting with a lady.  As they were driving along
they were talking about the purpose of the meeting.  Mr. Smotrov was driving in
the curb lane and they had just passed the intersection of Granville and 71st
Avenue when the Mercedes-Benz was struck by a red taxi that was driving
southbound on Granville Street and making a turn into the gas station.  He
insists that the red taxi was driving in the “opposite direction” from the Mercedes-Benz;
the taxi was never in front of them before the accident; and the taxi had been
driving southbound when it struck the Mercedes-Benz.

[31]        
Mr. Larichev testified that they were meeting a lady so that he could give
an expert opinion about the buying or selling of a restaurant.  He had expertise
or something that he could offer because he used to own Planet Java in Fort
Langley which he had sold for a profit.  However, because of the accident, they
stopped talking about the meeting, it never took place, and he never met the
lady.  He did not know whether it was the lady or Mr. Smotrov who was buying or
selling a restaurant.

IV.  Conclusion

[32]        
There are differing versions of the direction that Mr. Sepasi was
travelling just before the collision.  Both Mr. Sepasi and Mr. Smotrov say that
they were driving travelling northbound on Granville Street.  Mr. Larichev is
adamant that the taxi came from the opposite direction and was headed
southbound.  Mr. Qian testified that he thought the taxi may have been traveling
eastbound along 71st Avenue.

[33]        
I find that Mr. Larichev was clearly mistaken, and Mr. Sepasi was headed
northbound on Granville Street, and was in the middle lane as he entered the intersection
at 71st and moved over to the curb lane, and was partly in the curb lane and
partly in the entranceway to the gas station when the right rear passenger side
of his vehicle was struck by the Mercedes-Benz driven by Mr. Smotrov.

[34]        
While Mr. Qian was an independent witness, I find that at times he was
testifying on what he believes may have occurred rather than what he actually
observed.  His evidence changed at various points in his testimony; not because
he was not telling the truth, but given the passage of time since the accident,
memories fade and become less reliable.  Although he testified that he felt
that the Mercedes-Benz was unable to avoid the collision, he was about 100
metres behind.  From his vantage point, he would have a difficult time
ascertaining the distance between the taxi and the Mercedes-Benz.  While he
said there was no car parked in the curb lane, he was only certain of that from
the point where he first saw the taxi and the Mercedes-Benz.

[35]        
I find it highly improbable that Mr. Sepasi was travelling in the far
left lane as Mr. Qian testified.  Mr. Qian was unable to recall whether he
himself was driving in the far left hand lane or the middle lane.

[36]        
Mr. Sepasi’s unchallenged evidence was that after he dropped his passenger
off the bridge, his intended destination was the Shell gas station at the
northeast corner of Granville and 71st.  It makes no sense for him to have
moved over to the third lane in light traffic, when he needed to remain in the
curb lane for the Shell gas station.

[37]        
I tend to prefer the evidence of Mr. Sepasi over the evidence of Mr.
Smotrov where their evidence conflicts.  Mr. Sepasi’s recollection of the
details of what occurred just prior to being struck by the Mercedes-Benz is
quite detailed and was unchallenged and not contradicted.  On the other hand,
Mr. Smotrov’s evidence is quite vague.  Both Mr. Smotrov and Mr. Larichev
testified that they were headed to a meeting at a restaurant to discuss the
purchase or sale of a restaurant.  I mention the purpose of the meeting in some
detail because they are dramatically different. Mr. Larichev said that he was
asked to go to the meeting by Mr. Smotrov who wanted his expertise to help a
woman or Mr. Smotrov buy or sell a restaurant; he was not sure who was
buying or who was selling.  Mr. Smotrov said that they were going to the
meeting because Mr. Larichev was wanting to sell his restaurant.  Mr. Larichev
testified that he had already sold his restaurant.  Their recollections of the
events of the evening are vague, as is Mr. Smotrov’s recollection of the
traffic and events just before the collision.

[38]        
I find that Mr. Smotrov was not paying attention or reasonable attention
to the traffic and the manner in which he drove was largely responsible for the
accident.  The Mercedes-Benz struck the taxi when it was partly in the entrance
to the gas station.  On the other hand, Mr. Sepasi never looked right before he
turned into the gas station because there was a car parked on the south side of
71st Avenue.  That may be.  But Mr. Sepasi still ought to have looked right
before he turned into the gas station.

[39]        
I apportion liability for the accident:  75 percent to the defendants
Dmitriy Smotrov and Four Start Auto Lease Ltd. and 25 percent to the plaintiff
Seyed Sepasi.

[40]        
The plaintiff is entitled to his costs accordingly.

“Loo
J.”