In a recent decision of Andrews v Toor, 2019 ABCA 268, the Alberta Court of Appeal considered the liability of parties involved in a motor vehicle accident in an uncontrolled intersection in Calgary, Alberta. The trial judge had reached a 50/50 liability finding. The sole issue on appeal was whether the trial judge correctly interpreted and applied the relevant law to the facts in determining that although the Appellant’s vehicle had the right of way, he was negligent in failing to take steps to avoid the collision.
The details of the accident were undisputed by both sides. The Appellant was already in the intersection when the Respondent collided with his driver door. The Respondent was driving to the left of the Appellant’s vehicle when he approached the intersection. The Respondent did not see the Appellant in the intersection, though the trial judge found that she ought to have seen him and was therefore negligent. However, the Appellant was found equally liable as he had seen the Respondent’s vehicle coming towards him at full speed. The trial judge found it to be “imprudent and careless” for the Appellant to proceed into the intersection in those circumstances.
This appeal was a question of law alone, and the standard of review was therefore correctness. Under consideration at trial was the Traffic Safety Act, RSA 2000, c T-6, Use of Highway and Rules of the Road Regulation, Alta Reg 304/2002, section 34(1) which provides:
34(1) Except as otherwise provided in this Part or Part 2, when 2 vehicles approach or enter an intersection from different highways at approximately the same time, the person driving to the left shall yield the right of way to the vehicle on the right.
The Appellant argued that the trial judge erred by failing to apply or misapplying this statutory right of way provision in assessing liability. The trial judge found that the Appellant had a legal duty to yield to the Respondent’s vehicle despite clear evidence that the Respondent’s vehicle was to the left of the appellant’s vehicle and that the two vehicles entered the intersection at approximately the same time.
The Court of Appeal dismissed the appeal and upheld the trial judge’s apportionment of liability. In doing so, the Court cited the Supreme Court of Canada decision of Brownlee v Harmon,  2 DLR 450 at 461,  SCJ No 56, in which the Court states that the dominant driver (in this case, the Appellant) cannot be found liable unless the Respondent can prove that the Appellant should have been aware of the impending accident and had an opportunity to avoid the collision which a reasonably skilled driver would have taken. In this case, the Respondent had done just that and the Court held that the Appellant did not “do that which a reasonably prudent driver would have done when he saw, in plenty of time, a fast approaching vehicle on his left which did not appear to be adhering to its statutory obligation to yield.”
In other words, the Appellant ignored the approaching vehicle and did not slow down or brake. Both the Respondent and the Appellant had a legal duty to yield to the other vehicle and are therefore equally liable under the law.