Chow-Hidasi v. Hidasi

• Jurisdiction: British Columbia
• Judge: Newbury, Hall and Garson, JJ.A.
• Date: 05 December 2012
• Citation: (2013), 334 B.C.A.C. 90 (CA),2013 BCCA 73
• Court: Court of Appeal (British Columbia)

Chow-Hidasi v. Hidasi (2013), 334 B.C.A.C. 90 (CA);

    572 W.A.C. 90

MLB headnote and full text

Temp. Cite: [2013] B.C.A.C. TBEd. FE.030

Allena Fay Chow-Hidasi (appellant/plaintiff) v. Istvan Stephen Hidasi (respondent/defendant)

(CA039070; 2013 BCCA 73)

Indexed As: Chow-Hidasi v. Hidasi

British Columbia Court of Appeal

Newbury, Hall and Garson, JJ.A.

February 20, 2013.

Summary:

The plaintiff passenger sued the defendant driver in negligence after a single vehicle collision. The action was tried summarily.

The British Columbia Supreme Court, in a decision reported at [2011] B.C.T.C. Uned. 583, dismissed the action. The plaintiff appealed.

The British Columbia Court of Appeal, Garson, J.A., dissenting, dismissed the appeal.

Evidence - Topic 2444

Special modes of proof - Presumptions - Specific presumptions - Destruction or loss of evidence - The plaintiff passenger sued the defendant driver in negligence after a single vehicle collision - The action was tried summarily - The trial judge found that there had been a mechanical failure in the vehicle's brakes and steering wheel - The plaintiff had argued that, because the defendant's insurer had allegedly destroyed the vehicle without its having been inspected by or on behalf of either party before trial, the trial judge should have drawn an inference against the defendant to the effect that no mechanical defect would have been detected if the vehicle had been examined ("spoliation") - She relied on spoliation simply as an evidentiary presumption captured in the maxim omnia praesumuntur contra spoliatorem ("All things are presumed against a wrongdoer") - The trial judge rejected the argument on the basis that it ran contrary to the rationale on which the presumption ordinarily rested - The British Columbia Court of Appeal agreed - "On the present state of the law, it is clear that spoliation requires intentional conduct ... (I understand 'intentional' to mean 'with the knowledge that the evidence would be required for litigation purposes'.) As stated in McDougall v. Black & Decker [2008 Alta. C.A.], 'When the destruction is not intentional, it is not possible to draw the inference that the evidence would tell against the person who has destroyed it.'" - Neither the state of the law nor the evidence as presented supported the drawing of an adverse inference that an examination would have shown no mechanical failure in the vehicle's brakes or steering wheel - Like all litigants, the plaintiff was required to prove her case on the evidence available to her at the time of trial - See paragraphs 27 to 31 and 33.

Torts - Topic 379

Negligence - Motor vehicle - Standard of care of driver - Imminent danger, "agony of the moment" or "agony of collision" - The plaintiff passenger sued the defendant driver in negligence after a single vehicle collision - The action was tried summarily and dismissed - The trial judge was not persuaded that the condition of the vehicle's all season tires played any causative role in the crash - As for the fact that the defendant had been travelling at 100 km/h, the posted speed, the trial judge noted that the plaintiff had not expressed any concern to the defendant (her husband) about speed before the accident - Further, although the defendant might have been able to stop the vehicle before colliding with the concrete barrier if he had been travelling more slowly, it did not follow that driving at 100 km/h was unreasonable - The trial judge was not persuaded that driving at 100 km/h on that particular highway in winter conditions constituted a lack of reasonable care or had been "legally significant" as a cause of the collision - "Agony of collision", inter alia, applied - The trial judge found, inter alia, that the vehicle had suffered a mechanical failure (loss of power both to brakes and steering wheel) and the defendant could not have prevented the mechanical failure by the exercise of reasonable care - Further, the defendant's response to the mechanical failure was reasonable - The plaintiff appealed - The British Columbia Court of Appeal dismissed the appeal - See paragraphs 1 to 35.

Torts - Topic 462

Negligence - Motor vehicles - Speed - Where reduced speed required - Road conditions - [See Torts - Topic 379 ].

Torts - Topic 558

Negligence - Motor vehicle - Evidence and burden of proof - Single vehicle accident - [See Torts - Topic 379 ].

Torts - Topic 559

Negligence - Motor vehicle - Evidence and burden of proof - Arising out of loss of control - [See Torts - Topic 379 ].

Cases Noticed:

Lloyd v. Fox and Walker (1991), 2 B.C.A.C. 206; 5 W.A.C. 206; 57 B.C.L.R.(2d) 332 (C.A.), refd to. [para. 10].

Orangeville Raceway Ltd. v. Wood Gundy Inc. et al. (1995), 59 B.C.A.C. 241; 98 W.A.C. 241; 6 B.C.L.R.(3d) 391 (C.A.), refd to. [para. 19].

Nielsen v. Nielsen (2007), 249 B.C.A.C. 117; 414 W.A.C. 117; 2007 BCCA 604, refd to. [para. 19].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [paras. 19, 59].

Fontaine v. Loewen Estate, [1998] 1 S.C.R. 424; 223 N.R. 161; 103 B.C.A.C. 118; 169 W.A.C. 118, refd to. [paras. 20, 38].

Nason v. Nunes et al. (2008), 255 B.C.A.C. 232; 430 W.A.C. 232; 2008 BCCA 203, refd to. [para. 20].

Rintoul v. X-Ray and Radium Industries Ltd., [1956] S.C.R. 674, refd to. [paras. 24, 34, 40].

The Schwan, [1892] P. 419, refd to. [para. 24].

St. Louis v. Canada (1896), 25 S.C.R. 649, refd to. [para. 29].

McDougall v. Black & Decker Canada Inc. et al. (2008), 440 A.R. 253; 438 W.A.C. 253; 97 Alta. L.R.(4th) 199; 2008 ABCA 353, refd to. [para. 29].

Endean v. Canadian Red Cross Society et al. (1998), 106 B.C.A.C. 73; 172 W.A.C. 73; 157 D.L.R.(4th) 465 (C.A.), refd to. [para. 29].

Holland v. Marshall et al. (2008), 262 B.C.A.C. 134; 441 W.A.C. 134; 85 B.C.L.R.(4th) 199; 2008 BCCA 468, refd to. [para. 29].

The Merchant Prince, [1892] P. 179 (C.A.), refd to. [para. 40].

Gauthier & Co. v. R., [1945] S.C.R. 143; [1945] 2 D.L.R. 48, refd to. [para. 40].

Blackwood v. Butler, Patten and Reliable Ambulance Service Ltd. (1984), 48 Nfld. & P.E.I.R. 110; 142 A.P.R. 110 (Nfld. C.A.), refd to. [para. 48].

Aubrey v. Harris et al.; Drabik v. Harris (1957), 7 D.L.R.(2d) 545 (Ont. C.A.), refd to. [para. 51].

Authors and Works Noticed:

British Columbia Law Institute, Report on Spoliation of Evidence (2004), pp. 10 to 20 [para. 30].

Counsel:

J. Fiorante, Q.C., and J.D. Winstanley, for the appellant;

A.L. Murray, Q.C., and K.E. Jamieson, for the respondent.

This appeal was heard on December 5, 2012, by Newbury, Hall and Garson, JJ.A., of the British Columbia Court of Appeal. The court delivered the following reasons for judgment on February 20, 2013, which consisted of the following opinions:

Newbury, J.A. - see paragraphs 1 to 32;

Hall, J.A. - see paragraphs 33 to 35;

Garson, J.A., dissenting - see paragraphs 36 to 61.