



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Smeltzer v. Merrison,









2012 BCCA 13




Date: 20120112

Docket: CA038695

Between:

Kelly Smeltzer

Appellant

(Plaintiff)

And

Krystal Merrison,
Jim Pattison Industries Ltd.
doing business as Jim Pattison Lease and
Craftsman Collision (1981) Ltd.

Respondents

(Defendants)






Before:



The Honourable Mr. Justice Lowry





The Honourable Mr. Justice Frankel





The Honourable Madam Justice Neilson




On appeal from: Supreme
Court of British Columbia, December 3, 2010
(
Smeltzer v. Merrison
, Vancouver Docket M095170)




Counsel for the Appellant:



R. N. McFee, Q.C.





Counsel for the Respondents:



J. D. James





Place and Date of Hearing:



Vancouver, British
  Columbia

December 8, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia

January 12, 2012









Written Reasons by:





The Honourable Mr. Justice Lowry





Concurred in by:





The Honourable Mr. Justice Frankel

The Honourable Madam Justice Neilson








Reasons for Judgment of the Honourable
Mr. Justice Lowry:

[1]

Kelly Smeltzer was injured when the vehicles she and Krystal Merrison
were driving collided.  Her action for damages was tried before Mr. Justice
Stewart.  It was dismissed.  For reasons given orally, the judge found Ms.
Smeltzer was solely at fault; she had not discharged her onus of proving that
negligence attributable to Ms. Merrison caused the accident.  Ms. Smeltzer
appeals, contending the judge erred.  She says Ms. Merrison was solely at
fault.

The Accident

[2]

On November 16, 2007, Ms. Smeltzer turned south onto a two-lane road at
an intersection.  The road was divided by a solid yellow line.  She travelled
only 135 feet and then stopped to turn left, across the northbound lane, into a
parkade.  The driver of a truck proceeding north stopped and motioned to her to
make her turn in front of him.  There was then a gap between the truck and
vehicles backed up from the intersection ahead of it.  Ms. Merrison was
travelling north following two or three cars that were behind the truck. 
Starting about 200 feet from the intersection, the northbound lane widened
(narrowing the southbound lane) to ultimately accommodate a second northbound
lane, marked with a white line about 95 feet in length, for vehicles turning
right at the intersection.  Cars were parked along the east side of the road. 
Ms. Merrison was travelling at about the posted speed limit (50 kph) and
slowed.  She intended to turn right at the intersection so she proceeded to
pass the stopped cars and the truck ahead of her on their right, and the parked
cars on her right, to enter the marked turning lane.  Ms. Merrison would have
travelled no more than 100 feet before reaching the beginning of the white line
marking the right-turn lane, which was about 35 feet beyond the truck.  Ms.
Smeltzer proceeded with her turn past the front of the truck.  Neither she nor
Ms. Merrison saw each other before they collided.

The Judgment

[3]

The submissions before the judge focused on ss. 158 and 166 of the
Motor
Vehicle Act
, R.S.B.C. 1996, c. 318.  They provide:

158 (1) The
driver of a vehicle must not cause or permit the vehicle to overtake and pass
on the right of another vehicle, except

(a)  when the vehicle overtaken is
making a left turn or its driver has signalled his or her intention to make a
left turn,

(b)  when on a laned roadway there
is one or more than one unobstructed lane on the side of the roadway on which
the driver is permitted to drive, or

(c)  on a one way street or a
highway on which traffic is restricted to one direction of movement, where the
roadway is free from obstructions and is of sufficient width for 2 or more
lanes of moving vehicles.

(2)      Despite
subsection (1), a driver of a vehicle must not cause the vehicle to overtake
and pass another vehicle on the right

(a)  when the movement cannot be
made safely, or

(b)  by driving the vehicle off the
roadway.

* * *

119      ...

laned roadway
means a roadway or the part of a roadway that is divided into 2 or more marked
lanes for the movement of vehicular traffic in the same direction;

* * *

166      A driver
of a vehicle must not turn the vehicle to the left from a highway at a place
other than an intersection unless

(a)  the driver causes the vehicle
to approach the place on the portion of the right hand side of the roadway that
is nearest the marked centre line, or if there is no marked centre line, then
as far as practicable in the portion of the right half of the roadway that is
nearest the centre line,

(b)  the vehicle is in the position
on the highway required by paragraph (a), and

(c)  the driver has ascertained that the movement can be
made in safety, having regard to the nature, condition and use of the highway
and the traffic that actually is at the time or might reasonably be expected to
be on the highway.

[4]

The judge began by saying:

[7]        Counsels submissions focused to such an extent on
whether the plaintiff or the defendant or both were in violation of a provision
contained in the
Motor Vehicle Act
that I make it clear that I am alive
to the fact that the breaching of a statutory duty is not proof of negligence
and that the statutory duties imposed on these drivers  and any breaching of
them  can be taken into account in setting the standard of care or as evidence
of negligence, nothing more:
The Queen (Can.) v. Saskatchewan Wheat Pool
,
[1983] 1 S.C.R. 205; and
Jordison v. Graham
, 1999 BCCA 245 at paragraph
14.

[8]        I make it clear that I
have not lost sight of the
Motor Vehicle Act
sections brought to my
attention by counsel.  But because  as will become clear  I am dealing with a
de facto
lane of travel and not a laned roadway within the meaning of
the Act, it is only some of the sections that are of interest.

[5]

Citing this Courts decision in
MacLaren v. Kucharek
, 2010 BCCA
206 at para. 20, the judge found that at some point south of the commencement
of the white line marking the right-turn lane for the intersection, the road
must become a
de facto
two-lane road for northbound traffic.  He then
found a reasonable northbound driver would begin to treat the road as having
two such lanes several car lengths south of where the collision occurred and
found Ms. Merrison was in the
de facto
right lane proceeding
north because she intended to turn right at the intersection.

[6]

The judge found Ms. Smeltzer executed her left turn as a reasonably prudent
driver would except that she did not comply with s. 166 of the
Act
. 
Having regard for the configuration and width of the road, she was negligent
because, having passed in front of the truck, she did not stop to verify it was
safe to proceed and, in particular, that the
de facto
lane was free of
northbound vehicles.  The judge found that it was her negligence that caused
the collision.

[7]

The judge said Ms. Merrison was the dominant driver; she had the right
of way.  He appears to have said s. 158 was not directly relevant.  He said
further there was no doubt Ms. Merrison passed the vehicles to her left
without taking reasonable steps to assure herself that the gap she ought
reasonably to have seen to her left was not present because a car was turning left. 
But he said that does not mean Ms. Merrison should have become aware that the
driver of a left turning vehicle was in fact failing to give way to northbound
traffic in the
de facto
lane; and [that Ms. Merrison] had
sufficient opportunity to avoid the accident.  He then found Ms. Merrison
could not have avoided the collision short of slowing to a crawl or stopping
before passing the truck, which was not a duty the law imposes.  He concluded
it had not been established that Ms. Merrison was negligent.  I take him to
have meant negligent in a manner that caused the two vehicles to collide.

The Parties Positions

[8]

Ms. Smeltzer contends the judge erred in law in failing to have proper
regard for s. 158 of the
Act
, which she says prohibited Ms. Merrison
from passing the truck and the cars behind it on the right.  She maintains the
failure to respect the prohibition would lead to unpredictability and potential
chaos on the roads, citing
R. v. Dickson
, 2003 BCSC 437, 36 M.V.R.
(4th) 235 at paras. 9-11 and 13.  Ms. Smeltzer maintains the judges
references to the existence of a
de facto
lane in which
Ms. Merrison was said to be travelling in passing the cars on her right,
and his apparent reliance on
MacLaren
in that regard, were misplaced. 
The
Act
makes no provision for such and it does not justify the way in
which Ms. Merrison proceeded.  Ms. Smeltzer says it was Ms. Merrisons breach
of the
Act
, coupled with her failure to maintain a proper lookout ahead
and to her left, that were the cause of the collision.  Had she not passed on
the right in contravention of the
Act
, Ms. Smeltzers left turn
would have been safely made.  Ms. Smeltzer says further she can in no way be
faulted for not having seen Ms. Merrisons car approaching because she was
entitled to assume other drivers, like Ms. Merrison, would adhere to the rules
of the road and not pass on the right, citing
Salaam v. Abramovic
, 2010
BCCA 212, 4 B.C.L.R. (5th) 117 at para 25.

[9]

Finally, and in any event, Ms. Smeltzer says, even if Ms. Merrison was
in the circumstances entitled to pass on the right, by failing to keep a proper
lookout, she exercised her right of way in a manner that resulted in a
collision that, by keeping a proper lookout, she could reasonably have avoided,
and accordingly bears some if not all of the fault for what happened, citing
Walker
v. Brownlee
, [1952] 2 D.L.R. 450 (S.C.C.) at 460-61.

[10]

Ms. Merrison maintains s. 158(1)(b) permits one vehicle to pass another
on the right when it is travelling in an unobstructed lane, citing
Kerslake
v. Kim
, 2008 BCCA 220, and
Dickson
,
supra
, at paras. 8-11.  She
says the judge made no error in finding she was travelling in a
de facto
lane such that she was permitted to pass the cars she did on the right. 
Relying on
MacLaren
, which recognized the existence of
de facto
lanes in what are said to be essentially the same circumstances in material
respects, Ms. Merrison contends the distance from where the northbound lane
widened to the beginning of the white line marking the turning lane (about 100
feet) was a
de facto
lane.  It is, she says, essential that it be
recognized as such.  A right-turning northbound vehicle is prohibited from
crossing the white line marking the right-turn lane, citing
Stulec v.
Johnson
, 2000 BCSC 584, 3 M.V.R. (4th) 295.  Hence, a right-turning vehicle
must be aligned with the right-turn lane some distance before reaching it.  Of
necessity, such a vehicle must travel some distance in what is an unmarked
de
facto
lane leading to where the white line marking the right-turn lane begins. 
It must then be accepted there may be vehicles travelling side-by-side in
de facto
lanes.  This is especially the case where, as here, traffic may be backed up in
one of the lanes.  The length of a
de facto
lane becomes a question of
fact in any given circumstance.

[11]

Ms. Merrison then contends the judge made no error in finding Ms.
Smeltzer was solely at fault.  She was turning across a solid yellow line to
leave the road as permitted by s. 166 but failed to ascertain her left turn
could be executed safely and without unreasonably affecting the travel of
another vehicle.  Ms. Merrison relies, by analogy, on the decisions of this
Court in
Pacheco (Guardian ad litem) v. Robinson
(1993), 75 B.C.L.R.
(2d) 273 (C.A.), and
Dhah v. Harris
, 2010 BCSC 172, with respect to left-turning
drivers at intersections having to give way to vehicles having the right of way,
as she maintains she had.  Further, relying on
Haase v. Pedro
(1970), 21
B.C.L.R. (2d) 273, Ms. Merrison says Ms. Smeltzer did not discharge the onus
she bore of proving Ms. Merrison could, by the exercise of reasonable care,
have avoided the accident such that the judges determination in that regard
cannot now be disturbed.

[12]

The primary
question on which the appeal turns is the extent to which s. 158 of the
Act
applies.
D
id it prohibit Ms. Merrison from proceeding to pass on
the right as she did and, if so, did her breach of the statute cause the
collision?

Discussion

[13]

Dickson
, an appeal of a cyclists conviction for passing on the
right, contains the most complete discussion of s. 158 to which we are
referred.  I would respectively endorse what was said there.  Section 158(1)
prohibits one vehicle passing another on the right: The driver of a vehicle
must not cause or permit the vehicle to overtake and pass on the right of
another vehicle...  There are only three exceptions.  Essentially, passing on
the right is permitted when the overtaken vehicle is turning left, when passing
on a laned roadway, or when passing on a one-way street where room permits.  A
laned roadway is defined.  It means a road that is divided into two or more
marked lanes for vehicles proceeding in the same direction.  The exceptions are
qualified by subsection (2) which prohibits any passing on the right when it
cannot be done safely or by driving off the road.

[14]

Despite the recognition of a
de facto
lane in
MacLaren
, I
do not consider the concept can afford any further exception to the three for
which s. 158(1) provides.  In
MacLaren
, a cyclist was injured at an
intersection which he entered passing on the right of vehicles where there was
what was said to be a
de facto
lane to his right, being a widened part
of the road that accommodated vehicles turning right, but was not marked.  He
was faulted for riding between two lanes instead of positioning himself between
the vehicles he passed on the right.  It was specifically said (at para. 28)
that no determination was being made with respect to whether s. 158 permitted
the cyclist to pass on the right.

[15]

I am unable to accept that s. 158(1)(b) permitted Ms. Merrison to pass
two or three cars and the truck on the right as she contends.  The exception is
confined to passing on the right where there are two marked lanes for vehicles
proceeding in the same direction and only then when passing can be undertaken
in safety.  Here, there was only one such lane regardless of whether there was
what might be called a second
de facto
lane.  I recognize this means
drivers proceeding to turn right at the intersection, as Ms. Merrison was,
could not align their vehicles to enter the 100-foot marked lane until it was
virtually reached, if there were vehicles ahead in the through lane that were
not turning left, but that is what the
Act
provides and it appears to me
to be with good reason.  If it were otherwise, drivers would be entitled to
pass on the right wherever the road is sufficiently wide for two vehicles to
pass.  Drivers do not expect to be passed on the right when they are not
travelling on a road with more than one designated lane.  They generally expect
to be able to turn off of the road to their right, whether into intersecting
streets or driveways, or to pull over to the side of the road or off the road
altogether without being obstructed by vehicles passing to their right.

[16]

As quoted from his reasons, the judge said that, while he had not lost
sight of the provisions of the
Act
, he was concerned with a
de facto
lane of travel, not a laned roadway within the meaning of the
Act
such
that only some of the sections were of interest.  I am unable to accept he was
correct in law to consider Ms. Merrison passing on the right was not
prohibited by s. 158, as it appears he did, on that basis.  As the judge said,
she was not travelling in a laned roadway within the meaning of the
Act
:
s. 158(1)(b) did not apply.  If she entered a
de facto
lane, meaning the
road became wide enough to permit her to pass the cars and the truck ahead of
her on the right, she was, in the circumstances, prohibited from passing them. 
She was required not to pass the vehicles in front of her until she entered the
marked right-turn lane.

[17]

I consider Ms. Merrison was negligent in passing the three cars and the
truck on the right in contravention of s. 158.  She was negligent because it was
reasonably foreseeable that passing on the right, in contravention of a
statutory prohibition, could be dangerous to other motorists on the road.  Her
negligence was, on what the judge said, compounded by her failure to proceed
cautiously while maintaining a proper lookout.  Had Ms. Merrison not proceeded
to pass on the right as she did, the collision would not have occurred.  It
follows that her negligence was a cause of the accident and the injury Ms.
Smeltzer suffered.

[18]

It remains to consider how the legal error identified alters the judges
conclusion that Ms. Smeltzer was herself negligent such as to cause the injury
she suffered.  The judges finding in that regard was premised on Ms. Merrison
having been entitled to proceed to pass on the right as she did in approaching
the point where the collision occurred.  Given she was prohibited from
proceeding in that way, the question becomes whether Ms. Smeltzer can still be
faulted for what happened and, if so, to what extent.

[19]

In
Salaam
, this Court found a defendant driver who had the right
of way at an intersection negligent for having failed to take the steps it was
said a reasonable driver would have taken in the circumstances to avoid a
collision once it became apparent the plaintiff, who bore the greater
proportion of fault, was not yielding as required.  In reviewing the governing
authorities and drawing in particular on what is often cited from
Walker v.
Brownlee
,
supra
, Cartwright and Locke JJ. concurring at 460-461, the
following was said:

[25]  A driver like the
defendant, who is in a dominant position, will not typically be found to be
liable for an accident. Drivers are generally entitled to assume that others
will obey the rules of the road. Further, though defensive driving and
courteous operation of motor vehicles are to be encouraged, they do not
necessarily represent the standard of care for the purposes of a negligence
action. A driver will not be held to have breached the standard of care simply
because he or she failed to take extraordinary steps to avoid an accident or to
show exceptional proficiency in the operation of a motor vehicle.

[20]

While that general principle may apply where the driver of a vehicle
fails to give way to another which has the right of way in circumstances where
each driver was or ought to have been aware of the others vehicle, I do not
consider it serves to relieve a driver in Ms. Smeltzers position from
complying with the provisions of the
Act
as is now contended.  Section
166(c) required her to ascertain whether her left turn across the northbound
lane could be made safely.  It could not.  Had she done what was required of
her, the collision would not have occurred.

[21]

This is not a case where it is suggested Ms. Smeltzer was required to
take exceptional steps to avoid an accident or show exceptional proficiency. 
She was turning left, other than at an intersection, over a solid yellow line
to leave the road.  Her doing so was governed by s. 166(c).  She was not to
turn without making certain it was safe to do so having regard for the nature,
condition and use of the road and the traffic that actually was or might
reasonably be expected to be on the road.

[22]

Ms. Smeltzer may not have expected a vehicle would proceed toward the
right-turn lane as Ms. Merrison did.  However, given the width and
configuration of the road with the right-turn lane beginning a short distance
to her left, the traffic with which she was confronted, the parked cars, and
the limitation on what she could see, I consider it to have been incumbent on
Ms. Smeltzer to inch her way over the solid line and past the truck, as
drivers do, until she could see there was no obstacle to her completing her
turn  no car was in fact approaching in a manner she did not expect  rather
than turning blindly in front of the truck and proceeding as she did.  She
could easily have done this and the collision would have been avoided.  In the
result, Ms. Smeltzer bears a measure of fault for the injury she suffered.

[23]

This accident happened because neither driver saw the other before they
collided.  That was because both proceeded in a manner that contravened the
provisions of the
Act
: Ms. Merrison breached s. 158 and Ms.
Smeltzer breached s. 166.  Ms. Merrison could not see Ms. Smeltzers
vehicle while she was wrongfully passing the cars and the truck ahead of her on
the right and she was not looking where she should have been; Ms. Smeltzer
could not see Ms. Merrisons car while her vision was obstructed and she did
not take steps to ascertain her turn could be safely made.  I do not consider
it is possible to establish different degrees of fault in the circumstances of this
case such that in accordance with s. 1 of the
Negligence Act
,
R.S.B.C. 1996, c. 333, liability is to be apportioned equally.

Disposition

[24]

I would allow the appeal, set aside the judges order, and replace it
with an order declaring Ms. Merrison to be liable for 50% of Ms. Smeltzers
injury and consequent loss.

The Honourable Mr. Justice Lowry

I agree:

The
Honourable Mr. Justice Frankel

I agree:

The
Honourable Madam Justice Neilson


