The thugs who raced on the street should pay dearly

The Pakistani widow and her extended family of Toronto taxi driver, Tahir Khan launched a lawsuit against the two young men who killed him while speeding up Mount Pleasant Rd. in both of their parents' Mercedes-Benz cars. The lawsuit, filed in Ontario Superior Court, claims "extreme grief" and also says that Alexander Ryazanov and Wang-Piao Dumani Ross were racing two years ago when they killed the 46-year-old Pakistani immigrant, Their criminal lawyers have denied the two young men were racing.

In May 2007, Ryazanov and Ross were sentenced to a year's house arrest, followed by a year with a curfew and two years' probation. The 20-year-olds had pleaded guilty to dangerous driving causing death, although at the time of this writing, the Crown is appealing their sentences.

It was never determined in the young men's criminal proceedings whether they were racing. In a civil trial, the standard for proving would be easier to meet, because it is based on "a balance of probabilities" rather than the tougher standard of "beyond a reasonable doubt" used in criminal trials.

Najma Batool, Khan's widow, his mother, Sajjad Fatima, sister Nasira Batool, and brother Shahid Abbas Khan, who live in Rawalpindi, Pakistan, are claiming $2 million in damages.

Khan was the family's financial mainstay, paying for medicine for his mother and schooling for his siblings' children.

The family are claiming punitive damages because the young men's conduct was so far from the community norm that it deserves more punishment than the criminal courts have dealt.

Khan's family are also suing the drivers' parents – Anthony Ross and Jo-Anne Wang, and Sergey and Larissa Ryazanov – alleging they failed to properly maintain their cars and allowed their sons to drive despite failing to properly instruct them how to operate the luxury vehicles.

On the night of Jan. 24, 2006, both drivers sped north on Mount Pleasant Rd. in their parents' Mercedes-Benz cars, hitting speeds estimated between 80 and 140 km/h. At about 10:20 p.m., Ryazanov's 1999 silver Mercedes T-boned Khan's Diamond taxi as the cab driver was making a left turn onto Whitehall Rd. Whether or not they were racing is going to be a huge issue in the civil suit although I don't see why considering that both men pleaded guilt to dangerous driving.

First, I will deal with the issue of the young men being liable for damages for causing the death of the innocent taxi driver.

There was evidence of excessive speed produced at the criminal trial but that does not necessarily mean there was a race because there was no evidence presented at the trial of any discussion between the two men that they planned to race, nor was their evidence of an agreement to race, nor revving of engines or any other indicia to indicate a race was undertaken.

In R. v. Flannery, during a 1982 trial held in Manitoba, Judge Ferg considered the act of racing on a roadway to involve competitive movement of speed, a concerted effort to maintain a moving situation with an aspect of rivalry. He then went on to say;

“It is important not to be hyper focused on whether the drivers' conduct actually amounted to a ‘race’ within the exact definitional contemplation of a dictionary or the provincial highway traffic legislation. Frequently, there is no racetrack, no agreed-upon finish line, and certainly no regard for the hazards created. We have come to accept, as a matter of common sense, that the synchronized or in-tandem movements of two motor vehicles marked by high speed and close proximity over a material distance, often accompanied by abrupt lane changes, blocking, or bold maneuvers in and out of traffic, amounts to racing behavior even though all the trappings of a drag race may not be present. Whether by express arrangement or tacit agreement, the joint venture involves mutual incitement and encouragement toward a rivalry or demonstration of motor speed.”

In my respectful opinion, that is a very good description of racing on a street or highway. Driving in the manner described by Judge Ferg is definitely driving negligently and if the civil court is satisfied that these two young men were driving negligently, then the first hurdle will be surmounted as far as the plaintiff’s claim for general damages are concerned. In any case, whether or not they were racing is academic. They pleaded guilty to dangerous driving and that by itself is sufficient proof that they are liable for damages. They can't say at the civil trial that they weren't driving dangerously after having admitted to it at their criminal trial.

Of course, general damages would be awarded for grief, loss of income, burial costs etc.

It must be kept in mind that the taxi driver was not a millionaire who could have earned millions more had he not been killed. Taxi drivers unfortunately do not make much money so the court would have to take into consideration whatever he sent to his extended family in Pakistan. To send them millions of dollars would make them unjustly enriched with respect to their claim of loss of income.

Punitive damages are often awarded where the tortfeasor (a person who commits a wrongful or negligent act) has offended the ordinary standards of morality or decent conduct in the community, or is guilty of moral turpitude. They are also awarded where the defendant's conduct amounts to arrogance or callousness.

There can be no doubt that anyone who races his or her vehicle on a public street or roadway and as a direct result, kills an innocent motorist or passenger of another vehicle; is callous and deserving of punitive damages being awarded against him or her. Such damages are over and above general damages that are awarded.

If the lawyer for the plaintiffs in this matter can satisfy the court via witnesses that the manner in which the two cars being driven by the two defendants on Mount Pleasant Road, (a street that is notorious for street racing) fits the description of racing as defined by Judge Ferg in Manitoba, then the plaintiffs have a very good chance of convicting the judge that punitive damages are appropriate if the judge believes that the two defendants were in fact racing on Mount Pleasant Road when the taxi driver’s vehicle was struck.

The ‘actus reus’ (criminal act) of dangerous driving is established if the motor vehile is driven in a manner that is dangerous to the public having regard to the circumstance under which it is being driven. This is adequate to form the basis of a civil negligence claim.

Obviously, anyone who drives in a manner that can be construed as racing and as such is driving dangerously and is doing it on a public street, can be held civilly liable for punitive damages.

For the reasons thus stated, I submit that the second hurdle for the plaintiffs has been surmounted with respect to punitive damages being awarded.

The real problem the plaintiffs are going to have is suing the parents of the two young men. In Ontario, we have a law called the Parents Responsibility Act in which parents can be sued for the misbehavior of their offspring. This law wouldn’t apply in this case because the two young men are over 18 years of age.

I don't think the plaintiffs will be successful in establishing that the parents failed to train their children how to drive their cars. If they have driver's licences, the courts will assume that they are qualified to drive cars.

One of the hurdles that the plaintiffs are going to face is proving that the parents are negligent because their sons used their cars. That one is easy to surmount if it is established that the two young men had their parent’s permission to use the cars. The permission could be direct or presumed from past experience. However, if the parents’ defence is that they didn’t give their sons permission to drive their cars at any time, then the plaintiffs will have a hard time making the parents civilly liable for the accident. It would be no different than if their cars were stolen and later the cars were involved in an accident.

If there is a judgment for a great deal of money against both of the two young men, they could declare bankruptcy and therefore not pay the debt. However, if they do this, they will never ever be given a driver’s licence again in Canada because in Ontario, the Highway Act states that a driver's licence can be cancelled or withheld until a civil debt involving a motor vehicle accident is paid. Such persons can be permitted to drive if they make reasonable payments each month which would be about 20% of their monthly income. I might add that the plaintiffs have to approve of the payments. If they go to the USA to get their licence and use it in Canada and are stopped by the police in Canada, they will be charged with driving with a suspended licence. Then they will go to jail for six months for driving with a suspended licence.

What will be really interesting about this trial is the issue of punitive damages. Normally, if a person is charged with a criminal offence and is convicted and imprisoned, the courts tend to treat the civil award of punitive damages as amounting to double jeopardy. So far, the two men were not imprisoned, so the award of punitive damages would not normally be given however the crown attorney is appealing their sentences and if they are sent to prison, the award of punitive damages may be given.

Although it may be uncommon for the trier of fact in a civil court to award punitive damages in addition to the imposition of a sentence of imprisonment issued by a criminal court, he or she is not precluded at law from doing so if in the circumstances of a case, such an award is appropriate.

This is going to be an interesting case and I will keep you abreast of the final results which probably won’t be arrived at for a year or so.