IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140825

Dockets: M075581,
M075582, M075619

Registry:
Vancouver

No. M075581

Between:

Tatyana
Matyash

Plaintiff

And

Bhura
Singh Aulakh, Personal Representative of Gurtej Singh Aulakh (Deceased), Her
Majesty the Queen in Right of the Province of British Columbia as represented
by the Ministry of Transportation and Highways and City of Surrey

Defendants

No. M075582

Between:

Oleg Matyash

Plaintiff

And

Bhura
Singh Aulakh, Personal Representative of Gurtej Singh Aulakh (Deceased), Her
Majesty the Queen in Right of the Province of British Columbia as represented
by the Ministry of Transportation and Highways and City of Surrey

Defendants

No. M075619

Between:

Pawandeep
Singh Aulakh and Sukhsej Singh Aulakh, Infants by their Litigation Guardian,
Nachhattar Kaur Aulakh

Plaintiffs

And

Insurance
Corporation of British Columbia, City of Surrey,
Greater Vancouver Transportation Authority, doing business as Translink,
Her Majesty the Queen in Right of the Province of British Columbia, by her
Representative, the Ministry of Transportation, Tatyana Matyash, John Doe #1,
John Doe #2

Defendants

Before:
The Honourable Chief Justice Hinkson

Reasons for Judgment

[1]
On January 2, 2006, a motor vehicle accident occurred between two
vehicles at what I will call the south end of the Pattullo Bridge in Surrey,
British Columbia. One of the vehicles was a silver 1997 Chevrolet Cavalier
driven by Gurtej Aulakh (the “Aulakh Vehicle”), and the other vehicle was a blue
2000 Pontiac Grand Am driven by Tatyana Matyash (the “Matyash Vehicle”).

[2]
Three of the four occupants of the Aulakh Vehicle died at the scene of
the accident, and the fourth died shortly thereafter. Tatyana and Oleg Matyash
assert that they were injured in the motor vehicle accident. No evidence was
given as to whether the two of their children who were in the back seat of the Matyash
Vehicle were injured in the accident.

[3]
Three actions were commenced as a result of the motor vehicle accident: the
first in which Tatyana Matyash is the plaintiff; the second in which her
husband Oleg, a passenger in the Matyash Vehicle, is the plaintiff; and the
third, in which Pawandeep Singh Aulakh and Sukhsej Singh Aulakh (collectively,
the “Aulakh Plaintiffs”), whose parents and paternal grandparents were the
occupants of the Aulakh Vehicle, are plaintiffs. Both of the Aulakh Plaintiffs are
infants, and as such the third action was commenced by their litigation guardian,
Nachhattar Kaur Aulakh.

[4]
The claims brought by the various plaintiffs against Her Majesty the
Queen in Right of the Province of British Columbia as represented by the
Ministry of Transportation and Infrastructure, the City of Surrey, the Greater
Vancouver Transportation Authority doing business as Translink, John Doe #1,
and John Doe #2 were not proceeded with, nor was the Aulakh Plaintiffs’ claim
against Tatyana Matyash.

[5]
The three actions were heard at the same time pursuant to the order of a
Master dated October 12, 2012. The sole issue to be determined is liability for
the motor vehicle accident. Despite the Master’s order, as I will explain
below, certain expert evidence was admitted only in the action brought by the
Aulakh Plaintiffs.

Background

[6]
The witnesses were inconsistent as to whether the road on the Surrey
side of the Pattullo Bridge runs east-west or north-south (the bridge itself
runs northwest to southeast). Rather than confusing matters by quoting this
aspect of each witness’ evidence verbatim, I will adapt their evidence and
describe the direction of travel off the Pattullo Bridge into Surrey as
southbound and the direction of travel from Surrey onto the Pattullo Bridge as
northbound.

[7]
Prior to the collision, the Aulakh Vehicle had been travelling northbound
approaching the Pattullo Bridge, and the Matyash Vehicle had been travelling
southbound coming off the Pattullo Bridge.

[8]
The collision between the Aulakh Vehicle and the Matyash Vehicle
occurred in the leftmost southbound lane for traffic coming off the Pattullo
Bridge into Surrey after the Aulakh Vehicle crossed the median and entered that
oncoming lane.

The Positions of the Parties

[9]
The Aulakh Plaintiffs contend that before the Aulakh Vehicle crossed
into the left southbound lane, a large semi-truck and trailer came into contact
with the Aulakh Vehicle, causing its driver to lose control and spin into oncoming
traffic. They contend that the negligence of the driver of the semi-truck was
the sole cause of the motor vehicle accident.

[10]
Neither Tatyana nor Oleg Matyash have made a claim against ICBC as a
nominal defendant for any alleged negligence on the part of the driver of the semi-truck.
They and the Insurance Corporation of British Columbia, as a nominal defendant
in the action brought by the Aulakh Plaintiffs, contend that prior to leaving
the northbound lanes going onto the Pattullo Bridge, the driver of the Aulakh
Vehicle was driving at an excessive speed, and lost control of his vehicle,
causing it to cross the roadway into the oncoming left southbound lane. They
say that the negligence of the driver of the Aulakh Vehicle was the sole cause
of the motor vehicle accident.

[11]
In the alternative, Tatyana and Oleg Matyash contend that as the Aulakh
Vehicle crossed the highway into the path of the Matyash Vehicle, liability for
the ensuing collision should be inferred against the driver of the Aulakh
Vehicle, unless that inference is negated.

[12]
If they do not succeed on either of their first two contentions, Tatyana
and Oleg Matyash contend that liability for the motor vehicle accident should
be apportioned equally between the driver of the semi-truck and the driver of
the Aulakh Vehicle.

Issues to be Determined

[13]
The issues to be determined in order to resolve liability for the motor
vehicle accident are:

a)       Did a semi-truck
come into contact with the Aulakh Vehicle before it left the northbound lanes
of traffic heading onto the Pattullo Bridge?

b)       Did
contact between a semi-truck and the Aulakh Vehicle cause Mr. Gurtej
Aulakh to lose control of his vehicle?

c)       If a semi-truck
contacted the Aulakh Vehicle, where in the northbound lanes of traffic did that
contact occur?

The Witnesses

[14]
The Aulakh Plaintiffs called 4 witnesses at trial:

a)
Brian Robert Devers;

b)
Palbinder Singh Brar;

c)
Sukhdev Singh Brar; and

d)
Dr. Amrit Toor.

[15]
Tatyana and Oleg Matyash both gave evidence in their respective cases.

[16]
The Insurance Corporation of British Columbia called one witness, Mr. David
Montague Little.

The Lay Witnesses

[17]
Mr. Devers was a professional truck driver for some 30 – 35 years.
He was on his way home from watching a hockey game when he witnessed the motor
vehicle accident. He explained that the Pattullo Bridge has two northbound and
two southbound lanes. He described the lanes as narrow. It was his recollection
that the accident occurred at approximately 4:30 p.m. He gave evidence that
January 2, 2006 was a Monday, and that the traffic was lighter than usual, as
many businesses were closed that day. He described the traffic as light to
moderate and the lighting conditions as dusk; not dark, but not light either.

[18]
He stated that it was not raining at the time of the accident, but that
the roads were wet.

[19]
Just before the accident, Mr. Devers was proceeding southbound in
his ¾ ton pickup truck in the right hand lane on the Pattullo Bridge at
approximately 50 – 55 km/h. He was passed on the bridge by the blue Matyash
Vehicle. He gave evidence that he saw contact between a northbound semi-truck
and trailer and a northbound car, after which the car began to spin out and
crossed the median and entered left southbound lane, where it was struck
broadside by the Matyash Vehicle. He did not agree that the northbound car
fishtailed on its own, which I take to mean without making contact with the
semi-truck.

[20]
Mr. Devers testified that the semi-truck was in the curb lane and
the Aulakh Vehicle in the lane to its left before the contact. Mr. Devers
said that it looked like the two touched, and that the contact was broadside. He
was unable to say which lanes the semi-truck and the Aulakh Vehicle were in
when they made contact. In particular, he could not say whether the semi-truck
had strayed into the left lane, or if the Aulakh Vehicle had crossed over into
the right lane.

[21]
Mr. Devers was unable to estimate the speed of the northbound
vehicle or the semi-truck, but did not think that either they or the driver of
the Matyash Vehicle were exceeding the speed limit.

[22]
He said that the driver of the Matyash Vehicle had no chance to avoid
the collision.

[23]
Mr. Palbinder Singh Brar gave his evidence with the assistance of
an interpreter. He was employed at the time of the accident as a stucco worker
and was driving home from work in a GMC Suburban. His brother, Sukhdev Singh
Brar, and Darsen Singh Sandhu were passengers in that vehicle. The Brar Suburban
was proceeding southbound in the curb lane of the Pattullo Bridge. Mr. Palbinder
Singh Brar said that he had driven across the Pattullo Bridge many times before
the accident and described the lanes of travel on the Bridge as particularly
narrow. He said that the Matyash Vehicle was in the lane to the left of his
Suburban.

[24]
Mr. Palbinder Singh Brar described the weather conditions at the
time as fine. He said that it had been raining, but was not at the time of the
accident. He also said that the lighting conditions were “a little bit of
light; 15 – 20% light; not completely dark.” He explained that there are three
northbound lanes approaching the Pattullo Bridge, but testified that the curb
and center lanes merge into one lane, leaving two northbound lanes on the
Bridge itself.

[25]
Mr. Palbinder Singh Brar said that the traffic wasn’t “too much”
for either north or southbound vehicles. It was his evidence that a white semi-truck
was in the curb lane before the bridge, where there were still three northbound
lanes, and there was a brown vehicle in the center lane. While he did not
initially describe the movement of the semi-truck, in his later evidence in
chief he said that as the semi-truck made a lane change to its left, it swung
to the left and its left back side came into contact with the right side of the
car, causing the car to spin into the oncoming southbound traffic where it was
struck by the Matyash Vehicle. He said that he could not say which lane the car
or the semi-truck were in when they came into contact. He gave evidence that the
semi-truck did not stop after it contacted the Aulakh Vehicle.

[26]
 Mr. Sukhdev Singh Brar, like his brother, gave his evidence
through an interpreter. He gave evidence that as the Brar Suburban was
travelling down from the crest of the Pattullo Bridge in the curb lane, he saw
a white semi-truck coming from the other side of the Bridge and a gold car
beside it. He initially described the gold car as occupying the left northbound
lane, but later conceded that he was unable to say which lanes the white truck
and the gold car were in. Mr. Sukhdev Singh Brar said that the semi-truck
was changing lanes to its left and that the car was on the left side of the semi-truck.
He was also unable to say what part of the trailer came into contact with which
part of the car, but in cross examination said that the truck had to have been
ahead of the car.

[27]
He said that the two vehicles hit, and that the car then spun two or
three times toward the southbound lanes of travel and was hit by a car in the
left southbound lane.

[28]
Mr. Sukhdev Singh Brar gave evidence that it was raining at the
time of the collision but that the roads were fine, and were not slippery.

[29]
Mr. Matyash gave evidence that was entirely at odds with that of Mr. Devers
and the Brar brothers. It was Mr. Matyash’s evidence that he was riding as
a passenger in the vehicle driven by his wife, Tatyana, as they proceeded south
in the left hand lane of the Pattullo Bridge toward Surrey. He said that it was
a little after 4:00 p.m. when the accident occurred. He described the lighting
as getting dark and said that the roads were wet.

[30]
It was Mr. Matyash’s evidence that as the Matyash vehicle proceeded
down and off the Pattullo Bridge, he saw a vehicle coming northbound towards
the Bridge, in the center of the three northbound lanes some 200 – 300 metres
away. He said that the vehicle was going much faster than the other vehicles
travelling in that direction. He conceded that the other traffic was travelling
at 50 – 60 km/h, and said that the vehicle he noticed was going three times
that fast.

[31]
Mr. Matyash said that the vehicle he noted changed lanes quickly
and passed a semi-truck on the right of the truck, and then changed lanes,
cutting in front of the semi-truck. He said that the car fishtailed, and then
lost control, sliding toward the vehicle in which he was riding, and that
ultimately the vehicle he was riding in struck the other car.

[32]
In cross examination, Mr. Matyash was given several opportunities
to modify his estimate of the speed of the car that his vehicle hit, but
without exception reiterated what he had said on that matter in his evidence in
chief.

[33]
While Ms. Matyash testified at trial, she did not see the events
that took place before the Aulakh Vehicle suddenly appeared in front of her, in
her lane of travel.

The Expert Witnesses

[34]
As I alluded to above, expert evidence was admitted only in the action brought
by the Aulakh Plaintiffs. This was because notice of the evidence of Dr. Toor
was not served on counsel for Tatyana and Oleg Matyash until the week preceding
the trial, and an objection to its admissibility in their actions was upheld.

[35]
The evidence of Mr. Little was called in rebuttal to that of Dr. Toor.
In the result, I ruled that it was admissible only in the action in which Dr. Toor’s
evidence was admitted.

[36]
Dr. Toor was qualified as a mechanical engineer with a specialty in
accident reconstruction. While he attended the scene of the motor vehicle accident,
he took no measurements there. He did examine the Aulakh Vehicle on two
occasions. His written report included what I accept was an error in his
description of the direction of rotation of the Aulakh Vehicle before and as it
entered the left hand southbound lane coming off the Pattullo Bridge.

[37]
Based on what he considered both old and new damage to the area, it was Dr. Toor’s
opinion that the Aulakh Vehicle likely sustained an impact force on its right
rear region.

[38]
Dr. Toor also concluded from the location and parallel nature of
the tire marks in the median between the north and southbound lanes that the
cause of the loss of control of the Aulakh Vehicle was neither hydroplaning,
yaw nor over steering, thus leaving contact between the Aulakh Vehicle and a
vehicle to its right as the cause of the loss of control of the Aulakh Vehicle.

[39]
Mr. Little was qualified as a professional engineer and an expert
in accident reconstruction. He agreed with Dr. Toor that the Aulakh
Vehicle was at an oblique angle when hit by the Matyash Vehicle. He disagreed
that the tire marks on the median were parallel, and said that they were thus
inconsistent with a lack of rotation by the Aulakh Vehicle at that point.

[40]
In cross examination, he conceded that the police markers that he relied
upon in tracing the tire marks were misleading, and that the tire marks were
parallel as Dr. Toor had concluded.

[41]
Mr. Little disagreed with Dr. Toor that there was damage to
the Aulakh Vehicle that could be attributed to contact with a semi-truck. He
reluctantly conceded that there was no water in any of the police photographs
(the only evidence available to him on the issue) that could have caused the
driver of the Aulakh Vehicle to lose control.

[42]
Given the misconception of the tire marks by Mr. Little, and his
reluctance to concede that pooling of water played no role in the cause of the
loss of control by the driver of the Aulakh Vehicle, I approach his evidence
with caution. I do, however, accept his view that the damage noted by Dr. Toor
was not caused by impact between the semi-truck and the Aulakh Vehicle. I have
reached this conclusion based primarily on the evidence of the lay witnesses,
none of whom described contact between those two vehicles that could have
caused such damage.

Discussion

[43]
Mr. Devers was a careful and credible witness. Although there were
some minor inconsistencies between his statement to the police, taken at the
time of the accident, and his evidence at trial, I attribute them to the eight
years between the accident and the trial, and do not consider them to detract
in any way from Mr. Devers’ credibility. Indeed, counsel for the Matyashes
conceded that Mr. Devers was a credible witness.

[44]
Mr. Palbinder Singh Brar’s statements to the police and to the Insurance
Corporation of British Columbia differed in some ways from his evidence at
trial. Neither of those statements was obtained with the assistance of an
interpreter. In my view, Mr. Palbinder Singh Brar’s proficiency in the
English language is such that it was pointless to take a statement from him
without the assistance of an interpreter. I attribute any inconsistencies
between his prior statements and his evidence at trial to the fact that he did
not appreciate the English version of statements that he signed, and not to any
dishonesty or lack of credibility on the part of this witness.

[45]
Finally, it was suggested to Mr. Palbinder Singh Brar that he could
not have seen what he claims to have. He was extensively cross examined. I did
not find the cross examination of this witness effective to undermine his
credibility, but rather found him to be cooperative and thoughtful, though hindered
to a modest amount by the fact that he was giving his evidence through an
interpreter.

[46]
In my view, the evidence of Mr. Sukhdev Singh Brar was not
successfully challenged in cross examination either, and I accept his evidence
as far as it goes.

[47]
I have no hesitation in rejecting the evidence of Mr. Matyash.
While his counsel categorized his evidence as hyperbole, I find that Mr. Matyash
could not have witnessed what he described. I further find that the evidence of
the other lay witnesses accurately described, so far as they were able, what in
fact occurred prior to the impact between the Aulakh Vehicle and the Matyash
Vehicle.

[48]
While the evidence of Tatyana Matyash did not assist in the resolution
of the liability issues in this case, I do accept that she gave a truthful
account of her recollections.

[49]
As far as the claim of the Aulakh Plaintiffs is concerned, the evidence
of the expert witnesses does not persuade me to come to a different conclusion
than I reached on the evidence of the lay witnesses alone.

[50]
On the evidence of the lay witnesses, I find that Tatyana Matyash bears
no fault for the motor vehicle accident, as was initially alleged by the Aulakh
Plaintiffs.

[51]
Relying on the reasoning in Fontaine v. British Columbia (Official
Administrator), [1998] 1 S.C.R. 424, 46 B.C.L.R. (3d) 1, and Nason v.
Nunes, 2008 BCCA 203, 82 B.C.L.R. (4th) 1, Tatyana and Oleg Matyash contend
that I am obliged to draw an inference that the driver of the Aulakh Vehicle
was negligent, based upon the fact that he crossed into an oncoming lane
occupied with traffic.

[52]
I am unable to extract any such obligation from those authorities. In Fontaine,
Mr. Justice Major, writing for the Court, explained at para. 24 that:

24        Should the trier of
fact choose to draw an inference of negligence from the circumstances, that
will be a factor in the plaintiff’s favour. Whether that will be sufficient for
the plaintiff to succeed will depend on the strength of the inference drawn and
any explanation offered by the defendant to negate that inference. If the
defendant produces a reasonable explanation that is as consistent with no
negligence as the res ipsa loquitur inference is with negligence, this
will effectively neutralize the inference of negligence and the plaintiff’s
case must fail. Thus, the strength of the explanation that the defendant must
provide will vary in accordance with the strength of the inference sought to be
drawn by the plaintiff.

[53]
He concluded at para. 35 that:

35        The appellant submitted
that an inference of negligence should be drawn whenever a vehicle leaves the
roadway in a single-vehicle accident. This bald proposition ignores the fact
that whether an inference of negligence can be drawn is highly dependent upon
the circumstances of each case: see Gauthier & Co., supra, at
p. 150. The position advanced by the appellant would virtually subject the
defendant to strict liability in cases such as the present one.

[54]
In Nason, at paras. 4 – 5, Madam Justice Newbury, for the
Court, described the approach taken by the trial judge in dismissing a claim
where a driver lost control of his vehicle:

[4]        Russell J. dealt with the question of the
defendant driver’s negligence beginning at para. 51 of her reasons, which
are indexed as 2007 BCSC 266. She noted that the plaintiffs were relying on the
“presumption” stated in Redlack v. Vekved (1996), 82 B.C.A.C. 313
(lve. to app. refused, [1996] S.C.C.A. No. 608) and Savinkoff v. Seggewiss
(1996), 25 B.C.L.R. (3d) 1, [1996] 10 W.W.R. 457 (BCCA), that a driver is
negligent if his or her vehicle goes off the road. The plaintiffs also argued
that the defendant “should have been aware of the possible ice conditions,
and should have driven slowly and with greater caution than he did.”
However, the trial judge distinguished Savinkoff and other cases which applied
it, on the basis that Mr. Nunes had in fact foreseen the risk of slippery
conditions on the bridge and had taken reasonable steps to avoid it. (Para.
52.) In particular, she found that:

… the evidence suggests that the defendant took all
reasonable precautions to avoid losing traction: he was using all season tires,
he had weight over the rear wheels of the pickup, he had slowed his speed
coming down the hill, and the plaintiffs themselves had no concerns with the
way he was driving. There is no evidence that greater precautions, such as
using snow tires or driving even more slowly, would have been advisable when
the air temperature in Osoyoos was above freezing. Further, there is no
evidence that such further precautions would have prevented the MVA. Therefore,
I find that the plaintiffs have not proven that Nunes failed to meet the
required standard of care in all of the circumstances.

 As to the plaintiffs’ suggestion that Nunes was
negligent in gearing down instead of braking, which I infer from their reliance
on the (inadmissible) expert report suggesting that Nunes ought to have been
able to stop his truck on the bridge had he applied the brakes, I note two
things. First, as I stated above, there is no evidence that the reasonably
prudent driver would consider braking as preferable to gearing down when trying
to recover control of a fishtailing truck. Second, the law does not demand a
standard of perfection from drivers who must react quickly to a developing
situation: see Couturier (Guardian ad litem of) v. Rud, [1990] B.C.J. No. 150
at para. 22 (C.A.) (QL). Although there is no expert evidence before me,
attempting to slow a fishtailing vehicle by gearing down rather than braking,
while at the same time steering in the same direction as the skid, seems to be
within a range of reasonable reactions to a sudden loss of control of a
vehicle. There is certainly no evidence before me that it is an unreasonable
thing to do. [At paras. 57-8.]

[5]        Having found that Mr. Nunes
had taken reasonable care in the operation of his truck, Russell J. noted that
the “real force” of the plaintiffs’ argument in favour of negligence
lay in the assertion that a presumption of negligence arises if a motor vehicle
leaves the roadway. She agreed with the defendant that this presumption had
been dealt with by the Supreme Court of Canada in Fontaine v. British Columbia
(Official Administrator), [1998] 1 S.C.R. 424, 46 B.C.L.R. (3d) 1, the
well-known case involving two hunters who were found dead in their truck, which
had gone off a road and come to rest in a river bed. There was evidence that
the area had experienced severe storms. The two lower courts denied recovery to
the widow of the passenger in the truck on the basis that the defence had
provided an explanation as to how the accident could have occurred without
negligence on the driver’s part. This result was upheld by the Supreme Court of
Canada, but the Court took the opportunity to decide that the
“doctrine” of res ipsa loquitur should be treated as
“expired” and “no longer used as a separate component in
negligence actions”. (Para. 27.)

[55]
While I am not obliged to draw an inference of negligence, I may do so
if such an inference is support by an assessment of all the evidence adduced.
The proper approach to be taken in such circumstances was discussed by the
Court in Nason at para. 8 as follows:

[8]        As I read these
passages, even when res ipsa loquitur was alive and well, it applied
only where the evidence was circumstantial, and in Canada, it created at most
the drawing of an inference at the end of the plaintiff’s case that permitted,
but did not require, the trier of fact to decide in favour of the plaintiff if
no further evidence was adduced. But, since the maxim was seen as “more
confusing than helpful” the Court in Fontaine decided it should
no longer be applied as an element of negligence actions in Canada. (Para. 27.)
Instead, the Court provided a simpler formulation of the correct approach that
refers only to the end of the trial: the trier of fact should, Major J.
said, weigh all the evidence, both direct and circumstantial, to determine
whether the plaintiff has established [on a balance of probabilities] a prima
facie case. If he has, the defendant must “negate” that evidence, failing
which the plaintiff will succeed. (This of course is true of the process
that the trier of fact in most civil cases must follow.) Applying this to the
facts of Fontaine, the Court concluded that the trial judge had not
erred in finding that the fact the hunters’ vehicle had left the roadway, taken
together with evidence of the road and weather conditions, constituted only
‘neutral’ evidence. (Para. 29.) [Emphasis added.]

[56]
In my opinion, based on all the evidence adduced at trial, aside from
the expert evidence, the Matyash plaintiffs have established prima facie cases
of negligence on the part of Gurtej Aulakh because his vehicle should not have
crossed the median and entered the left southbound lane. However, if there was
contact between the semi-truck and the Aulakh Vehicle which can be attributed
to the driver of the semi-truck, then the plaintiffs’ prima facie cases
will be negated. This issue, therefore, is at the heart of all three claims
before me.

a)
Contact between the Semi-truck and the Aulakh Vehicle

[57]
On the evidence of the lay witnesses set out above, I find that the
driving lanes onto the Pattullo Bridge are particularly narrow, and that a
semi-trailer travelling in the northbound lanes leading onto the Pattullo
Bridge came into contact with the Aulakh Vehicle.

b)       The Loss of Control by
the Driver of the Aulakh Vehicle

[58]
I further find on the evidence of the lay witnesses, set out above, that
the contact between the semi-truck and the Aulakh Vehicle caused the driver of
the Aulakh Vehicle to lose control of the vehicle, with the result being that
it crossed the median into the oncoming left southbound lane, into the path of
the Matyash Vehicle.

c)       Where
did the contact between the Semi-truck and the Aulakh Vehicle occur?

[59]
The central issue, in my view, is whether or not the contact between the
Aulakh Vehicle and the semi-truck occurred in the lane in which the Aulakh
Vehicle was travelling. If contact occurred because the semi-truck entered the
lane in which the Aulakh Vehicle was travelling, the driver of that vehicle
would bear responsibility for the accident. If the contact occurred because the
Aulakh Vehicle strayed into the lane in which the semi-truck was travelling,
then Gurtej Aulakh would bear responsibility for the accident.

[60]
The onus of proving which lane the contact occurred in rests on the
Aulakh Plaintiffs. Unless there are special circumstances, which do not apply
here, these plaintiffs must prove that “but for” the negligent act of
the driver of the semi-truck, the accident would not have occurred: Resurfice
Corp. v. Hanke, 2007 SCC 7 at para. 21, [2007] 1 S.C.R. 333.

[61]
As all of the occupants of the Aulakh Vehicle succumbed to their injuries
from the motor vehicle accident, their evidence as to which lane the contact
between their vehicle and the semi-truck occurred is unavailable.

[62]
The investigating police officers did not investigate in which lane the contact
between the Aulakh Vehicle and the semi-truck occurred.

[63]
Mr. Little was not asked to investigate which lane the contact
between the Aulakh Vehicle and the semi-truck occurred in, and by the time of
his retainer, Dr. Toor could not meaningfully investigate the matter.

[64]
None of the lay witnesses were able to give evidence of which lane the
contact between the Aulakh Vehicle and the semi-truck occurred.

[65]
While there was evidence from the lay witnesses that the semi-truck was
merging from the northbound curb lane into the center northbound lane, it would
be sheer speculation to conclude that in doing so, it entered the lane occupied
by the Aulakh Vehicle rather than concluding that it was the Aulakh Vehicle
that failed to stay within its narrow lane.

[66]
I am therefore compelled to the conclusion that the Aulakh Plaintiffs
have failed to prove negligence against the driver of the semi-truck. It
follows that their claim must be dismissed. Further, it also follows that the prima
facie cases of negligence established by Tatyana and Oleg Matyash have not
been negated. As a result, I find that the deceased driver of the Aulakh
Vehicle, Mr. Gurtej Aulakh, is liable for their injuries.

[67]
Unless counsel have submissions to make, the defendants in the action
brought by the Aulakh Plaintiffs will have their costs at Scale B, as will
Tatyana and Oleg Matyash for their respective actions.

“The
Honourable Chief Justice Hinkson”