File Number: 34189
IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE NOVA SCOTIA COURT OF APPEAL)
Between:
ANNAPOLIS COUNTY DISTRICT SCHOOL BOARD and DOUGLAS ERNEST FEENER
APPELLANTS/RESPONDENTS ON CROSS-APPEAL (RESPONDENTS)
and
JOHNATHAN LEE MARSHALL, represented by his Guardian, Vaughan Caldwell
RESPONDENT/APPELLANT ON CROSS-APPEAL (APPELLANT)
FACTUM OF THE APPELLANTS
(Annapolis County District School Board and Douglas Ernest Feener) (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada)
Counsel for Annapolis County District Agent: School Board and Douglas Ernest Feener:
STEWART McKELVEY McMILLAN LLP Scott C. Norton, a.c. Jeffrey Beedell G. Grant Machum Suite 300 - 50 O'Connor Street 1959 Upper Water Street, Suite 900 Ottawa ON K1 P 6L2 Halifax NS B3J 2X2 Telephone: 613.232.7171 Telephone: 902.420.3200 Fax: 613.231.3191 Fax: 902.420.1417 Email: [email protected] Email: [email protected]
Counsel for Johnathan Lee Marshall: Agent:
BOYNE CLARKE GOWLING LAFLEUR HENDERSON LLP Robert K. Dickson, a.c. Brian A. Crane, a.c. 33 Alderney Drive, Suite 700 160 Elgin Street, Suite 2600 Dartrnouth, NS B2Y 2N4 Ottawa ON K1 P 1C3 Telephone: 902.469.9500 Telephone: 613.233.1781 Fax: 902.469.7500 Fax: 613.563.9869 Email: [email protected] Email: [email protected] - i -
TABLE OF CONTENTS
PART 1- CONCISE OVERVIEW & CONCISE STATEMENT OF FACTS ...... 1
(A) Overview ...... 1
(B) Facts ...... 2
(i) The Accident ...... 2
(ii) The Trial...... 4
(iii) The Jury Charge and Verdict ...... 7
(iv) The Nova Scotia Appeal ...... 11
PART 11- CONCISE STATEMENT OF THE QUESTION IN ISSUE ...... 14
PART 111- CONCISE STATEMENT OF ARGUMENT ...... 15
(A) Standard of Review ...... 15
(B) The Merits ...... 15
(i) 'Foreseeability' is essential...... 17
(a) Right-of-way informs the foreseeability component ...... 19
(b) "Foreseeability" or "back-seeability"? ...... 24
(ii) Must drivers be more than reasonably prudent? ...... 26
PART IV - SUBMISSIONS CONCERNING COSTS ...... 29
PART V - ORDER SOUGHT ...... 30
PART VI- TABLE OF AUTHORITIES ...... 31
PART VII- STATUTORY PROViSiONS ...... 32 - 1 -
PART 1- CONCISE OVERVIEW & CONCISE STATEMENT OF FACTS
(A) Overview
1. This appeal raises a fundamental question about how to assess the reasonable standard
of care. In the particular context of a civil jury trial, this appeal raises the question of how
a trial judge may (or may not) instruct the jury on the integral task of assessing the
requisite standard of care of a driver of a motor vehicle.
2. The Nova Scotia Court of Appeal significantly and erroneously altered the state of
negligence law as it applies to drivers. The Court of Appeal effectively removed
'reasonable foreseeability' as a component of the standard of care. In turn, the Court of
Appeal has elevated a driver's standard of care to one that exceeds reasonable
prudence.
3. In this particular case, the Court of Appeal concluded that the Trial Judge made a
'serious misdirection' in his charge to the jury when he referred to statutory pedestrian
and vehicle right-of-way provisions as informing the standard of care of the Defendant
driver. In the Court of Appeal's view, this is because the Trial Judge had already
concluded that the Plaintiff could not be found contributorily negligent. At the time of the
accident in question, the Plaintiff was just over four years old.
4. In the result, a trial judge's instruction on the standard of care depends upon the actual
capacity of the plaintiff. More specifically, the Court of Appeal's decision leads to the
following distinction:
(a) If the plaintiff was of full capacity at the time of the accident, the trial judge should
instruct the jury in the ordinary course. The trial judge should instruct the jury
that the standard of care is objectively assessed by a consideration of whether,
looking back to the time just before the accident, it was reasonably foreseeable - 2 -
that the defendant's conduct would raise an unreasonable risk of harm. The
assessment of the standard of care in this regard is a forward-looking exercise,
anchored in the creation of an (un)reasonable risk.
(b) If, however, the plaintiff was not of full capacity at the time of the accident, the
trial judge is more limited in how to instruct the jury. According to the Nova
Scotia Court of Appeal, the standard of care may not be informed by a full
consideration of what would otherwise be reasonably foreseeable in the
circumstances just prior to the accident. In doing so, the standard of care (and
any jury instruction thereon) becomes contingent upon the capacity of the
ultimate plaintiff. Accordingly, the assessment of the standard of care becomes a
backward-looking exercise, putting the cart before the horse.
5. This is an error. Accordingly, and for the following reasons, the Appellants respectfully
submit that this appeal should be allowed and the Order of the Trial Judge should be
restored.
(8) Facts
6. The essential facts in this case, at least as they pertain to this appeal, are relatively
straightforward and not in dispute.
(i) The Accident
7. The afternoon of April 12, 1994 was clear and sunny in Annapolis County, Nova Scotia.
The Respondent / Appellant on Cross-Appeal (Johnathan Lee Marshall - the
"Respondent"), four and a half years old at the time, was playing with his two older
brothers (aged 8 and 10 at the time) outside their home located along the north side of
Highway No. 201 near the village of Paradise. - 3 -
8. The boys were playing in the dooryard, far away from the road. They were unsupervised
during their play. Their mother, Betty Acker, was inside the family home.'
9. At some pOint prior to 3:30 p.m., the Respondent separated from his two brothers, left
the property and crossed Highway No. 201 to the south side.
10. At this same time, the Appellant / Respondent on Cross-Appeal (Douglas Ernest Feener
- "Mr. Feener") was driving his empty school bus westbound along Highway No. 201 in
the direction of the Respondent's home. As he had done for many years, Mr. Feener
was on his way to pick up high school students from a nearby school after having
dropped off a busload of elementary school children.
11. As Mr. Feener approached the Respondent's home, the Respondent darted out into the
path of the oncoming school bus. The place from which Respondent began his
northward dash was hidden from view by a large woodpile stacked at the foot of a
southbound logging road:
12. Once Mr. Feener was able to see the Respondent running across the highway, his only
option was to immediately and forcefully slam on the brakes. But with less than 3
seconds to stop the bus, there was simply not enough time.3 The Respondent was
struck by the bus, suffering serious injuries.
13. Mr. Feener quickly left the bus to check on the Respondent. On seeing him open his
eyes, Mr Feener said: "Little feller, lay there .. Lay there, I'm going to get you some
, Trial Examination of Betty Noreen Acker, transcript pages 3041 - 3046 [Volume II, Tab 4(b) of the Appellants' Record]. 2 Trial Examination of Douglas Ernest Feener, transcript pages 4274 - 4295 [Volume III, Tab 4(g) of the Appellants' Record]; Trial Exhibit No. 44 - RCMP Report of Sergeant Robert G. Forbes (redacted by Trial Judge) [Volume IV, Tab 5(b) of the Appellants' Record]. 3 Trial Examination of Clifford Ray Tyner, transcript pages 4969 and 5078 [Volume III, Tab 4(h) of the Appellants' Record]. - 4 -
help". He radioed for help and returned to wait with the Respondent until the emergency
services arrived on the scene.'
14. Just prior to the accident, Mr. Feener was driving his usual and acceptable speed along
this stretch of Highway No. 201.5 After the accident, the RCMP concluded that there
was no evidence of excessive speed or reckless driving.6
15. In all his years of driving along Highway No. 201, Mr. Feener had never witnessed
children playing near the highway in the area where the accident occurred. This
particular stretch of highway had no signs or crosswalks, and it was not a "school zone".
The posted speed limit was 80 kilometres per hour?
16. It was a busy highway, with a lot of car, bus and truck traffic. For this reason, the
Respondent and his brothers were not allowed to play by the road and had been warned
against so dOing.8
(ii) The Trial
17. By his litigation guardian, the Respondent commenced an action against Mr. Feener and
his employer (Annapolis County District School Board). In turn, they commenced a third
party claim against the Respondent's mother and step-father. The third party claim
4 Trial Examination of Douglas Ernest Feener, transcript pages 4290 - 4295 [Volume III, Tab 4(g) of the Appellants' Record]. 5 Trial Examination of Douglas Ernest Feener, transcript pages 4281 - 4286 [Volume III, Tab 4(g) of the Appellants' Record]; Trial Examination of Ronald Allister West, transcript pages 4042 - 4043 [Volume III, Tab 4(f) of the Appellants' Record]; Trial Examination of Sergeant Austin Bennett, transcript pages 3821 - 3827 [Volume II, Tab 4(d) of the Appellants' Record]. 6 Trial Exhibit No. 44 - RCMP Report of Sergeant Robert G. Forbes (redacted by Trial Judge) [Volume IV, Tab 5(b) of the Appellants' Record]. 7 Trial Examination of Douglas Ernest Feener, transcript pages 4281 - 4286 [Volume III, Tab 4(g) of the Appellants' Record]; Trial Exhibit No. 44 - RCMP Report of Sergeant Robert G. Forbes (redacted by Trial Judge) [Volume IV, Tab 5(b) of the Appellants' Record]. 8 Trial Examination of Gladys Hardwick, transcript pages 2678 - 2683 [Volume II, Tab 4(a) of the Appellants' Record]; Trial Examination of Betty Noreen Acker, transcript pages 3035 - 3046 [Volume II, Tab 4(b) of the Appellants' Record]; Trial Examination of Vaughn Gerald Caldwell, transcript pages 3140 - 3146 [Volume II, Tab 4(c) of the Appellants' Record]. - 5 -
against the Respondent's step-father was subsequently abandoned, but the claim
against his mother remains outstanding.9
18. The main action was heard before the Honourable Justice Arthur W.D. Pickup, sitting at
Halifax with a jury. The 36 day trial spanned ten weeks and purportedly became the
longest civil jury trial in the history of Nova Scotia.
19. Central to this appeal (and to the appeal below) was the Trial Judge's legal ruling in the
absence of the jury that the Respondent was too young to be contributorily negligent.
The Trial Judge concluded:
I am satisfied that he would have neither sufficient experience nor maturity to understand any warnings that he may have received. A child, such as Johnathan Marshall, of four years, four months old at the time of the April 12, 1994 accident would lack understanding and knowledge because of his young age and would not be capable of being negligent as he would be unaware of the risks associated with his actions W [emphasis added]
20. In the result, a concern then arose on the part of the Respondent's counsel about
whether it would be proper to include reference to statutory pedestrian and vehicle right-
of-way provisions in the jury charge. In particular, the Respondent's counsel expressed
concern about instructing the jury that the Respondent could not be held contributorily
negligent for his actions and simultaneously informing the jury about subsections 125(3)
and (4) of the Motor Vehicle Act as they were at the time of the accident. Those
subsections provided as follows:
Vehicle right of way
(3) Every pedestrian crossing a roadway at any point other than within a marked or unmarked crosswalk shall yield the right of way to vehicles upon the highway.
9 Reasons of the Court of Appeal, para 34 [Volume I, Tab 2(c) of the Appellants' Record]. 10 Reasons of the Court of Appeal, para 6 [Volume I, Tab 2(c) of the Appellants' Record]. - 6 -
Duty to exercise care
(4) This Section shall not relieve the driver of a vehicle or the pedestrian from the duty to exercise due care."
21. Essentially, these provisions of the Motor Vehicle Act confirmed that Mr. Feener had the
right-of-way while he was driving down Highway No. 201 at the time and place of the
accident. They further confirmed, however, that Mr. Feener still had a duty to exercise
reasonable care.
22. In the pre-charge discussions amongst counsel and the Trial Judge (again, in the
absence of the jury), the Respondent's counsel suggested it would be inappropriate to
effectively tell the jury that the Respondent could not be liable for his actions but that he
nevertheless had a statutory duty to yield to the driver.12
23. In response, Mr. Feener's counsel noted that the role and effect of the statutory
provisions is two-fold: (a) first, they inform the assessment of whether a pedestrian was
contributorily negligent by failing to yield to the right-of-way of a vehicle; and (b) second,
they also inform the assessment of whether a driver breached the applicable standard of
care in the circumstances. Although the first was inapplicable given the Trial Judge's
earlier ruling on contributory negligence, the second remained integral to the jury's
assessment of whether Mr. Feener breached the standard of care.
24. Put simply, this is because the right-of-way informs the foreseeability component of the
standard of care. In the words of Mr. Feener's counsel:
They have a reasonable expectation that pedestrians are not going to cross the road other than at intersections or marked
" RSNS 1989, c 293. The current version of section 125 is slightly different but with similar effect. The full text of section 125 in its current form and as it was on the date of the accident is provided at Part VII below. 12 Trial Transcript, pages 5228 - 5257 [Volume IV, Tab 4(1) of the Appellants' Record]. - 7 -
crosswalks. That is the rule of the road that we're talking about and it informs whether or not the jury considers Mr. Feener to have been prudent in the way he was driving at the time because he could reasonably anticipate that a four year-old or a 19 year old or a 40 year-old wouldn't run out across the street. So with the instruction to the jury that Johnathan is incapable of being held contributorily negligent as Your Lordship has stated, this section tells them what the law is. That's your responsibility, to tell them what the law is. The law is that the driver has a right of way, that the pedestrian has a duty to yield the right of way to the driver other than at a crosswalk.'3 [emphasis added]
25. The Trial Judge agreed. 14
(iii) The Jury Charge and Verdict
26. The following week, and after counsel made their closing submissions to the jury, the
Trial Judge proceeded to charge the jury over the course of one full-day.
27. At the outset of his charge, the Trial Judge explained his ruling that the Respondent
could not be held contributorily negligent for his conduct:
I will assess the law relating to assessment of damages, how you go about assessing damages and I will mention the special defence of mitigation which may affect your assessment of the damages. I would normally mention the special [defence of contributory negligence] which arises from the evidence you heard.
In other words, the allegation that the plaintiff Johnathan Marshall was partly negligent for running in front of the school bus, however as a matter of law, I have determined that the age of the plaintiff at the time of the accident. four years. four months, and experience at the time of the accident was such as to render him incapable of having any legal liability for the accident. Therefore I will not instruct you on the special [defence of contributorv negligence]. and direct that you not impute any liability to the plaintiff on the basis of contributorv negligence.'" [emphasis added]
28. After reviewing the evidence and the submissions of counsel, the Trial Judge then
instructed the jury on the applicable law of negligence. Because the Trial Judge's
13 Trial Transcript, pages 5258 - 5259 [Volume IV, Tab 4(1) of the Appellants' Record].
14 Trial Transcript, pages 5262 - 5263 [Volume IV, Tab 4(1) of the Appellants' Record]. 15 Jury Charge, transcript pages 5557 - 5558 [Volume I, Tab 2(d) of the Appellants' Record]. - 8 -
instruction in this regard is essential to the issue raised on this appeal, it is necessary to
set out in detail his charge on how the jury should assess the standard of reasonable
care.
29. The Trial Judge instructed the jury as follows:
So the first question that we've asked you to decide is, was there negligence on the part of the defendant, Douglas Feener, that caused or contributed to the damages suffered by the plaintiff Johnathan Marshall? Simply put, you must consider all the evidence and decide whether the defendant has satisfied you that the accident did not arise from his negligence. You will need to examine and consider the whole conduct of the defendant Douglas Feener from the standpoint of all acts done or what should have been done prior to the impact.
Generally speaking, a person is negligent when he or she shows a lack of care towards another person in circumstances where he or she owes that person a legal duty to take care and avoid doing that person harm. The standard of care is that of a reasonable and careful person in the community.
So standard of care. This is the second element. If Mr. Feener failed to meet the standard of care expected in the circumstances, he was in breach of his duty of care to Mr. Marshall. The conduct of the defendant is not measured against perfection, but rather against the conduct of a person of ordinary prudence and intelligence in the community.
A defendant is not reguired to exercise extraordinarv caution or unusual skill or foresight ...
Now. I'm going to mention another section of the Motor Vehicle Act. This is the Motor Vehicle Act of 1989 which was in effect at the time, it's [RSNS] 1989, Chapter 293 in particular Section 125(3) and four. And that says, 125 (3), "Everv pedestrian crossing a roadway at any point other than within a marked or unmarked crosswalk, shall yield the right of way to vehicles upon the highway." The next. Sub 4. 125(4) says. "This section shall not relieve the driver of the vehicle or the pedestrian from the duty to exercise care." - 9 -
So a pedestrian has the right to cross the highway at a point which is not a regular crossing for pedestrians, but in such a case, a duty is cast upon him to take special care to use greater vigilance and to yield the right of way to vehicles upon the highway, So in a crosswalk, cars stop, If you're not in a crosswalk, then what I just told you applies,
This reason - this is for the obvious reason that drivers of motor vehicles know that there're safety zones and crosswalks for the use of pedestrians where they are normally expected to cross, This is not to say however, that if a pedestrian crosses between intersections, a motorist can run him down with [impunitY], The guestion is could or should the driver have seen the pedestrian in time to avoid the collision?
The pedestrian on the other hand has a duty to look out for his own safety, and to keep a lookout for approaching vehicles, Did he do what a reasonable person would be expected to do? Did he step from a place [of safety] to a place of danger and fail to use reasonable care as required by the circumstance? These are the questions you must put to yourself.
Now standard of care owed to children crossing the highway, Johnathan was four years, four months old, So the standard of care owed to children on a highway is the same as that owed to adults, but there may be circumstances which should put motorists on their guard,
In a school or playground area or in a built up residential district, a motorist should drive more slowly and carefully and keep a lookout for the possibility of children running out into the street. Here you must decide whether the circumstances were such as to put the defendant motorist on notice that he was approaching an area where children were likely to be, and therefore should exercise greater care in the operation of his motor vehicle,
", An operator of a motor vehicle must exercise at all times the same manner of care and caution as might be expected in like circumstances of a reasonably careful driver, He must take proper precautions to guard against risks which might reasonably be antiCipated to arise from time to time as he proceeds on his way, This degree of care and nothing more is expected of him, He is not asked to maintain a standard of care of perfection, or to take extravagant precautions, The driver's only problem is to antiCipate what is reasonably likely to happen.
He has the right to expect that a pedestrian will not act without care, The duty of a pedestrian when using the public street or highway is to use reasonable care at all times for his own safety, and to avoid placing himself in a position from which injury might - 10 -
result. However, he's entitled to assume that motorists will drive according to the law. '6 [emphasis added]
30. In summary, the Trial Judge clearly instructed the jury that:
• The Respondent could not be held contributorily negligent for reasons of capacity
- he was only four years old at the time of the accident.
• Mr. Feener's conduct must be measured against what a reasonably prudent
person would have done in the circumstances leading up to the accident.
• This is determined by an assessment of whether Mr. Feener took proper
precautions to guard against a risk which "might reasonably be anticipated".
• In this regard, a defendant need not possess unusual foresight, only reasonable
foresight.
• This determination of what "might reasonably be anticipated" is informed, in part,
by whether a driver has the statutory right-of-way - if yes, a driver generally has
a right to assume that a pedestrian will act with care and yield to the driver's
right-of-way.
• This does not mean that a driver can act with impunity if a pedestrian fails to yield
the right-of-way - the question here is whether the driver could or should have
seen the pedestrian in time to avoid the collision and whether a reasonable
person would have exercised greater care in the circumstances.
16 Jury Charge, transcript pages 5605, 5609, 5612 - 5616 [Volume I, Tab 2(d) of the Appellants' Record]. A more abbreviated version of these instructions is contained within the Reasons of the Court of Appeal, paras 16 - 17 [Volume I, Tab 2(c) of the Appellants' Record]. - 11 -
• A driver should exercise a greater degree of caution when driving in an area
where it can be reasonably anticipated that children are likely to be present.
• Ultimately, however, Mr. Feener's conduct is only to be measured against a
standard of reasonable care and not a standard of perfection. The proper focus
is to consider what a reasonably prudent person, armed with reasonable
foresight, would have done in the circumstances.
31. After deliberation, the jury returned with a verdict and answered "no" to this question:
1. Was there negligence on the part of the defendant, Douglas Feener, that caused or contributed to the damages suffered by the plaintiff, Jonathan [sic] Marshall?17
32. Importantly, the jury was never asked or instructed to answer any question of negligence
or liability on the part of the Respondent.'s
(iv) The Nova Scotia Appeal
33. By his litigation guardian, the Respondent appealed the resulting Order to the Nova
Scotia Court of Appeal. He asserted two errors on the part of the Trial Judge.
34. First, and primarily, the Respondent argued that the Trial Judge had misdirected the jury
in various ways in his charge. Second, he argued that the Trial Judge committed certain
other errors during the course of the trial.
35. The Nova Scotia Court of Appeal allowed the appeal on the basis of this first assertion
and directed a new hearing on the issue of liability.
17 Order after Trial with Jury, issued December 16, 2009 [Volume I, Tab 2(a) of the Appellants' Record]. 18 Jury Charge, transcript pages 5560 - 5562 [Volume I, Tab 2(d) of the Appellants' Record]; Order after Trial with Jury, issued December 16, 2009 [Volume I, Tab 2(a) of the Appellants' Record]. - 12 -
36. At the outset of its reasons for decision, the Court of Appeal properly pointed out the
deference that should be accorded to a trial judge in respect of his charge to the jury:
Appeal court judges must be ever mindful of the context within which trial judges must craft and deliver their jury charges. Time is very much of the essence with great pressure to complete the task. For example, the charge cannot be finalized until all the evidence is in and counsel have completed their closing submissions. At the same time, the jury cannot be kept waiting. So often, within a period of hours, the judge must craft the product that arguably represents the most important aspect of the trial. We, as appeal court judges, must keep this in mind when, months later and in the comfort of our chambers, we comb through the charge.
Therefore, our role is to consider the charge not in a piecemeal fashion but as a whole. Furthermore, not every error should result in a new trial. Instead, we should interfere only if there exists a misdirection capable of affecting the verdict.'9
37. Nevertheless, the Court of Appeal concluded that the Trial Judge's reference to the
existence and nature of pedestrian and vehicle right-of-way provisions amounted to such
a serious misdirection. In the Court of Appeal's view, it was improper for the Trial Judge
to charge on these provisions because he had already concluded that the Respondent
could not be held contributorily negligent. Because the Respondent could not himself be
found legally liable for his actions, the jury should not have been instructed that he
nevertheless had no legal right to be on the road in the first place.
38. In the opinion of the Court of Appeal, the jury was effectively told to treat the Respondent
like an adult when it came to assessing Mr. Feener's potential negligence, despite
having been told that the Respondent was too young to be legally responsible for the
accident!O
19 Reasons of the Court of Appeal, paras 14 - 15 [Volume I, Tab 2(c) of the Appellants' Record]. 20 Reasons of the Court of Appeal, para 16 [Volume I, Tab 2(c) of the Appellants' Record]. - 13 -
39. Put differently, and because the jury was instructed that Mr. Feener had the legal right
of-way at the time and place of the accident (as opposed to the Respondent), the Court
of Appeal reasoned that the jury was invited "to find Johnathan legally responsible for
the accident" and was left with "little choice but to find Johnathan responsible for this
accident.,,21
40. The Court of Appeal went on to confirm, however, that:
In short, Johnathan's actions were relevant when considering Mr. Feener's potential negligence. However, in this context, they remained the actions of a child and not those of an adult. Ignoring this reality constitutes, in these circumstances, reversible error.22
41. In this regard, and with respect, the Court of Appeal conflated the legal question of
whether the Respondent could be held liable for his behaviour with the factual question
of whether he was the cause of this unfortunate accident.
42. In doing so, the Court of Appeal disregarded the answer reached by the jury to this
factual question. In doing so, the Court of Appeal disregarded the role that a statutory
right-of-way plays in informing the applicable standard of care of a defendant driver.
21 Reasons of the Court of Appeal, paras 18 -19 [Volume I, Tab 2(c) of the Appellants' Record]. 22 Reasons of the Court of Appeal, para 32 [Volume I, Tab 2(c) of the Appellants' Record]. - 14-
PART 11- CONCISE STATEMENT OF THE QUESTION IN ISSUE
43. This appeal raises the following question:
Did the Nova Scotia Court of Appeal commit a reviewable error in concluding that a trial judge may not charge a civil jury on pedestrian and vehicle right-of-way provisions in cases where the trial judge has already concluded that the plaintiff cannot be held contributorily negligent?
44. For the reasons that follow, the Appellants submit that the answer is yes. - 15 -
PART 111- CONCISE STATEMENT OF ARGUMENT
(A) Standard of Review
45. A question of law is at issue in this appeal. That question is - can a trial judge inform a
civil jury about pedestrian and vehicle right-of-way provisions in cases where the plaintiff
cannot be held contributorily negligent?
46. The Court of Appeal answered this question in the negative. In reaching this particular
conclusion, the Court of Appeal did not (and did not need to) make any findings of fact or
apply any findings of fact to a principle or standard of law. It did not (and did not need
to) weigh or balance various factors in a discretionary manner. Instead, the Court of
Appeal answered this question, as a matter of law, in order to determine whether the
Trial Judge had made a misdirection in the jury charge.23
47. Accordingly, no deference should be accorded to the Court of Appeal's conclusion. The
applicable standard of review at this Court is correctness. This Court can and should
overtum the decision below if (as is submitted below) the Court of Appeal was
incorrect.24
(8) The Merits
48. The Court of Appeal incorrectly altered the law on standard of care. This is because:
(a) The Court of Appeal failed to appreciate that the pedestrian and vehicle right-of-
way provisions play two roles: (i) to guide the assessment of whether a plaintiff is
23 Misdirection is a necessary although not sufficient condition for the Court of Appeal to intervene with a civil jury charge: see Reasons of the Court of Appeal, paras 13 - 15 [Volume I, Tab 2(c) of the Appellants' Record]. 24 See eg Dr Q v College of Physicians and Surgeons of British Columbia, [2003] 1 SCR 226 at para 43 (by way of analogy) [Tab 6 of the Appellants' Book of Authorities]; and Hausen v Nikolaisen, [2002] 2 SCR 235 at paras 8 - 9 [Tab 7 of the Appellants' Book of Authorities]. See also RP Kerans & KM Willey, Standards of Review Employed by Appellate Courts, 2d ed (Edmonton: Juriliber, 2006) at 337 - 340 [Tab 15 of the Appellants' Book of Authorities]. - 16-
contributorily negligent (which was not in issue in the instant case); and (ii) to
inform the standard of care of a reasonably prudent person in the circumstances
of the defendant (which was clearly at issue in the instant case).
(b) By disallowing a charge to the jury on this second role, the jury is therefore left
with an impoverished instruction on how to assess the requisite standard of care
in cases when the plaintiff cannot be found contributorily negligent. As an aside,
one might question whether a trial judge (in a non-jury trial) can now have any
proper regard for pedestrian and vehicle right-of-way provisions in such
circumstances.
(c) The result, therefore, is two different standards of care:
(i) The first would apply in cases where there is no legal barrier to the
plaintiff being found contributorily negligent - the trial judge here can fully
instruct the jury on how to assess the standard of care.
(ii) The second, and more impoverished version, would apply in cases like
the instant where there is a legal barrier to the plaintiff being found
contributorily negligent - the trial judge here, according to the Court of
Appeal, may not instruct the jury about pedestrian and vehicle right-of
way provisions as something that informs the assessment of the standard
of care.
(d) Because the latter is dependent on the actual capacity of a plaintiff and the actual
facts and circumstances of the accident in question, the effect of the Court of
Appeal's distinction is to limit the standard of care of its requisite foreseeability
component. The standard of care becomes a backward-looking exercise, rather
than one based on a forward-looking assessment of whether a reasonable - 17 -
person would have foreseen an unreasonable risk and taken steps to guard
against it.
(e) Practically speaking, this removal of foreseeability from the analysis means that
all drivers must drive on the assumption that a child may run out onto any road at
any time, regardless of a driver's right-of-way. This would be the case even in
the absence of any reasonable indication that children might be present on the
roadway and despite any posted speed limit.
49. This result is absurd, and it is incorrect in law for two reasons:
(a) First, this result violates the idea of 'foreseeability' as a fundamental and
organising principle of negligence law.
(b) Second, this practically elevates the requisite standard of care for all drivers to
one that exceeds reasonable prudence.
50. This is a case of first instance. For this reason, it is necessary to consider the question
raised by this appeal through the lens of first principles of negligence law.
(i) 'Foreseeability' is essential
51. To start from the beginning, the tort of negligence requires 4 things, namely that:
(a) the defendant owed a duty of care to the plaintiff;
(b) the defendant's conduct breached the corresponding standard of care;
(c) the plaintiff sustained damage; and - 18 -
(d) this damage was caused. in fact and in law, by the defendant's breach. 25
52. The idea or concept of 'foreseeability' is essential to determining the existence of three
of these four things.
53. The first requirement - owing a duty of care - is determined by whether the relationship
between the parties "is so close that the one may reasonably be said to owe the other a
duty to take care not to injure the other ". Whether such a relationship exists depends on
foreseeability, moderated by policy concerns.,,26
54. The fourth requirement - causation of damage - is also informed by the concept of
foreseeability. On the enquiry of legal causation, the question of remoteness is
answered by whether the resulting damage would have been in the "foresight of the
reasonable rnan".27
55. Most relevant to this appeal, however, is the second requirement. A breach of the
standard of care is determined by whether the defendant's behaviour "creates an
unreasonable risk of harrn".2B The question of whether a defendant's conduct creates a
reasonable versus unreasonable risk of harrn is answered by reference to foresight. In
the words of Professor Allen Linden (as he then was):
[Fjoresight is ernployed in assessing whether there has been breach of duty. The issue here is whether the defendant lived up to the standard expected of the reasonable man in the light of the risks that were foreseeable at the time. Here, foreseeability of potential damage is an important factor that the judge or jury must
25 Mustapha v Culligan of Canada Ltd, [2008] 2 SCR 114 at para 3 [Tab 10 of the Appellants' Book of Authorities]. 26 Mustapha, supra at para 4 [Tab 10 of the Appellants' Book of Authorities]. 27 Mustapha, supra at para 12 [Tab 10 of the Appellants' Book of Authorities], quoting from Overseas Tankship (UK) Ltd. v Morts Dock & Engineering Co, [1961] AC 388 (PC) at 424 [Tab 11 of the Appellants' Book of Authorities]. 28 Mustapha, supra at para 7 [Tab 10 of the Appellants' Book of Authorities]. - 19 -
weigh in deciding whether the defendant acted unreasonably in the circumstances:9 [emphasis added]
56. More than just "important", Hallett J.A. of the Nova Scotia Court of Appeal described
foreseeability as "essential" to the assessment of the requisite standard of care:
Reasonable foreseeability of risk is an essential component of the test as to whether or not an act or omission created such an unreasonable risk of harm to others that a reasonable man would have appreciated and guarded against such a risk.30 [emphasis added]
57. It is therefore clear that 'foreseeability' is a most significant and organising principle
within the doctrine of negligence. It is triggered at three of the four essential stages of
analysis. Accordingly, it would violate the principled core of the law of negligence to limit
or remove the role of foreseeability at any stage.
58. In the Appellants' submission, however, this is the unfortunate effect of the Court of
Appeal's decision to prohibit charging a civil jury on the existence of vehicle and
pedestrian right-of-way provisions in certain cases.
(a) Right-of-way informs the foreseeability component
59. It is unfortunate because the right-of-way informs the foreseeability component of the
standard of care. It is essential to the assessment of whether the defendant has created
an unreasonable risk. For example, a driver must proceed more cautiously in the
absence of a right-of-way in order to meet the requisite standard of care, because a
reasonable person would foresee that others have the right to be on the road and
therefore might likely be there. If, however, the driver has the right-of-way, she can
29 AM Linden, "Foreseeability in Negligence Law" in Special Lectures of the Law Society of Upper Canada - New Developments in the Law of Torts (Toronto: Richard DeBao Limited, 1973) 55 at 55 [Tab 17 of the Appellants' Book of Authorities]. See also: JG Fleming, The Law of Torts, 8th ed (Sydney: The Law Book Company, 1992) at 105 -108,114-116 and 121 -123 [Tab 14 of the Appellants' Book of Authorities]; PH Osborne, The Law of Torts, 3d ed (Toronto: Irwin Law, 2007) at 30 - 32 [Tab 19 of the Appellants' Book of Authorities]. 30 Canada (Attorney General) v Dingle Estate, 2000 NSCA 5 at para 40 [Tab 5 of the Appellants' Book of Authorities]. - 20-
reasonably proceed on the assumption that others will follow the rules of the road and
yield to her right-of-way.
60. This does not suggest that a driver with the right-of-way can drive without impunity,
which was clearly noted by subsection 125(4) of the Motor Vehicle Act and clearly
indicated by the Trial Judge in his charge to the jury in this case. Rather, the existence
(or non-existence) of the right-of-way is simply one thing that informs the content of the
requisite standard of care.31 Should a driver become aware that a pedestrian is not
yielding to the right-of-way, that driver is then obliged to meet the standard of care of an
"ordinary, reasonable and prudent driver faced with those same sudden and emergent
conditions.,,32
61. Nevertheless, the existence of a right-of-way remains an important component to
assessing the requisite standard of care. Driving would otherwise become an incredibly
difficult, if not impossible activity. As noted by Cartwright J. of this Court:
The duty of a driver having the statutory right-of-way has been discussed in many cases. In my opinion it is stated briefly and accurately in the following passage ... "Authority is not required in support of the principle that a driver entering an intersection, even although he has the right of way, is bound to act so as to avoid a collision if reasonable care on his part will prevent it. To put it another way: he ought not to exercise his right of way if the circumstances are such that the result of his so doing will be a collision which he reasonably should have foreseen and avoided."
In applying this principle it is necessary to bear in mind the statement of Lord Atkinson in Toronto R. W. Co. v. King, 7 C.R.C. 408 at p. 417, [1908] A.C. 260 at p. 269: "Traffic in the streets would be impossible if the driver of each vehicle did not proceed more or less upon the assumption that the drivers of all the other
31 See eg BC Electric Ry Co Ltd v Farrer, [1955] SCR 757 [Tab 1 of the Appellants' Book of Authorities]. 32 Behmanesh v Yokhana, 2011 ONSC 4950 at paras 14 - 16 [Tab 2 of the Appellants' Book of Authorities]. - 21 -
vehicles will do what it is their duty to do. namely. observe the rules regulating the traffic of the streets ... 33 [emphasis added]
62. Although the latter comment was rendered in the context of the right-of-way of vehicles
vis-a-vis other vehicles, there is nothing in principle or logic to suggest a difference when
adding pedestrians to the mix. Indeed, this would appear to be confirmed by the
following statement of Estey J. in a later decision of this Court:
Legislative bodies have, for many years, been enacting provisions intended to facilitate and make safer the movement of pedestrians and vehicular traffic on the highways and public streets. The general rule is that these provisions and regulations are supplementary, or in addition, to the common law duty that rests upon all persons using the highways to exercise due care. Swartz Bros. Ltd. v. Wills; Royal Trust Co. v. Toronto Transportation Commssn. In the latter case Mr. Justice Davis, with whom the majority of the Court agreed, stated at p. 674:
Generally speaking. a motorman on a street car is entitled to assume that a pedestrian or a motorist approaching the street car tracks will stop to permit the street car to pass by and there was in this case a statutory right of way in favour of the street car. But the existence of a right of way does not entitle the motorman on the street car to disregard an apparent danger that confronts him.34 [emphasis added]
63. And in the words of Professor Fleming:
Ordinarily, we may assume that others will take reasonable care to look out for themselves. Traffic would be unduly slowed down if road users were not entitled to repose some confidence in the reasonable conduct of others, provided there is nothing to indicate that such trust would be misplaced. A motorist need not ordinarily adjust his speed against pedestrians unexpectedly dashing into his path or other drivers flouting the rules of the road. 35
64. In the instant matter, the Court of Appeal was clearly alive to this point. As an example,
the Court of Appeal referred to and quoted the following exchange between counsel and
33 Walker v Brownlee, [1952] 2 DLR 450 (SCC) at 460 - 461 [Tab 13 of the Appellants' Book of Authorities]. 34 BC Electric Ry Co Ltd, supra at 763 [Tab 1 of the Appellants' Book of Authorities]. 35 JG Fleming, supra at 121 - 122 [Tab 14 of the Appellants' Book of Authorities], citing Jensen v Hall, [1961] NZLR 800 (CA) as authority for this proposition [Tab 8 of the Appellants' Book of Authorities]. - 22-
the Trial Judge on the dual-role of pedestrian and vehicle right-of-way provisions in
negligence cases:
MR. NORTON: This is a rule of the road, this is in the driver's handbook of course, and it's in the Motor Vehicle Act. It talks about the right of way, not negligence but the right of way. The entire Motor Vehicle Act and the rules of the road are structured so that drivers have certain reasonable expectations as they're driving down the road. For example, a driver driving down a through street has a reasonable expectation that drivers approaching from the side faced with stop signs are going to stop at the stop signs. They have a reasonable expectation that pedestrians are not going to cross the road other than at intersections or marked crosswalks. That is the rule of the road that we're talking about and it informs whether or not the jury considers Mr. Feener to have been prudent in the way he was driving at the time because he could reasonably anticipate that a four year-old or a 19 year-old or a 40 year-old wouldn't run out across the street. So with the instruction to the jury that Johnathan is incapable of being held contributorily negligent as Your Lordship has stated, this section tells them what the law is. That's your responsibility, to tell them what the law is. The law is that the driver has a right of way, that the pedestrian has a duty to yield the right of way to the driver other than at a crosswalk.
THE COURT: Even if you're four years old?
MR. NORTON: Even if it's four years old. And there's no law that says otherwise. And it would be in my submission chaos and anarchy if - there'd be no point to having rules of the road if they don't apply to anyone under the age of seven or eight. And you wouldn't be able to drive anywhere because there might be a four year-old running out from behind a parked car or a wood pile. That is not the way that the Motor Vehicle Act is set up. Whether that four year-old can be held contributorily negligent is a separate issue. But whether a driver can reasonable anticipate that a four year-old won't come running out because of the law unless there's some warning, and that's a guestion of fact for the jury to decide. whether in these particular circumstances Mr. Feener had some forewarning to change what his right to drive along that highway at 80 kilometres an hour is. 36 [Emphasis added]
36 Reasons of the Court of Appeal, para 25 [Volume I, Tab 2(c) of the Appellants' Record]; Trial Transcript, pages 5258 - 5260 [Volume IV, Tab 4(1) of the Appellants' Record]. - 23-
65. But by then suggesting that a trial judge cannot charge the jury on the existence and
nature of statutory right-of-way provisions in cases where the plaintiff cannot be found
contributorily negligent, the Court of Appeal rejected the role of right-of-way as informing
the standard of care of a driver in these cases. Thus, the Court of Appeal has impaired
the jury's ability to properly assess the standard of care. Put differently, the jury cannot
assess the standard of care with full reference to what would otherwise be reasonably
foreseeable in the eyes of a reasonable person in the circumstances.
66. Importantly, the Court of Appeal did not suggest that a trial judge can never charge the
jury as to the existence and content of the statutory right-of-way provisions in a case
where the plaintiff is a pedestrian. Instead, the restriction imposed by the court below
only appears to apply where (as here) the plaintiff cannot be found contributorily
negligent.
67. The concern to the Court of Appeal was an apprehension of being told: (a) on the one
hand that a particular plaintiff cannot be found contributorily negligent; but (b) on the
other hand that any pedestrian would not have had the right to be on the road in the first
place. Of course, there could be no similar apprehension in a case where the plaintiff is
legally capable of being held contributorily negligent. Indeed, trial judges have routinely
and properly instructed juries about the statutory right-of-way provisions in such cases.37
68. In Kalman v Thornton, for example, the British Columbia Court of Appeal approved of
the following passage from the trial judge's charge to jury:
37 See eg Petijevich v Law, [1969] SCR 257 at 264 [Tab 12 of the Appellants' Book of Authorities]. See also Byrne v Hodgins (1972),30 DLR (3d) 128 (SCC) [Tab 4 of the Appellants' Book of Authorities], rev'g Bryne v Hodgins (1972), 27 DLR (3d) 617 (BCCA) [Tab 3 of the Appellants' Book of Authorities], where the Supreme Court of Canada agreed with the dissenting reasons at the Court of Appeal that a serious misdirection was made in the jury charge. In doing so, however, the general propriety of charging on right-of-way provisions was confirmed (per Bull J.A., in dissent, at 620 of the BCCA decision). - 24-
Now, here the duty of care is set out in statutory form and I am going to read the section to you. We all have a duty of care for our neighbours, but in this province when it comes to automobiles the legislature has seen fit to set the standard by statute and a breach -- a statutory breach of a duty is just as negligent as breach of an ordinary duty, which is a duty to take care of our fellow citizens to protect them from harm that we can reasonable foresee. Foreseeability is a significant part of negligence. That is, did Mr. Thornton. or should he ought to have - the objective test - foreseen that his driving might endanger or cause harm to Ms. Kalman? Did Ms. Kalman, in walking where she walked, create a risk to herself? which means she contributed to her own misfortune either totally or in part. That is the question.
Now, when dealing with the plaintiff, her duty, as Section 181 of the Motor Vehicle Act says. "A pedestrian shall not leave a curb or other place of safety and walk or run into the path of a vehicle that is so close it is impractical for the driver to yield the right-of-way." That is the issue insofar as her failing to take precaution for her own safety, and, of course, it is a question for you whether or not Mr. Thornton was so close that it was impractical for him to yield the right-of-way, and that is what Mr. Johnston says. And Mr. Whitson says, "On no, when you see a bus and you know it has slowed down and gone into the bay, you should foresee that there might be people around and take extra precaution and perhaps steer a bit to the left." That is the issue in this case.
But Section 182, which is again the plaintiff's duty: ''When a pedestrian is crossing a highway at a point not in a crosswalk, he shall yield the right-of-way to a vehicle." That is. I think. pretty obvious. but we sort of all know about that but it is codified in the Motor Vehicle Act. What then of the duty of the defendant, Mr. Thornton? Well the section reads: "Notwithstanding among others, a driver of a vehicle shall (a) Exercise due care to avoid colliding with a pedestrian who is on the highway. (b) Give warning by sounding the horn in the vehicle when necessary, and observe proper precaution on observing a child or apparently confused or incapacitated person on a highway.,,38 [emphasis added]
(b) "Foreseeability" or "back-seeability"?
69. The result, then, is two different standards of care. The first would apply in cases where
the plaintiff has the capacity to be found contributorily negligent Here, the trial judge
can instruct the jury that the standard of care is objectively assessed by a consideration
of whether, looking back to the time just before the aCCident, it would have been
38 Kalman v Thornton, 1998 CanLiI 5961 (BCCAl at para 5 [Tab 9 of the Appellants' Book of Authoritiesj. - 25-
foreseeable to the reasonable person that the defendant's conduct would raise an
unreasonable risk of harm. This would include, among other things, an appreciation of
whether the reasonable person would have been generally entitled to assume that
pedestrians and other drivers would abide by the statutory right-of-way provisions.
70. The second would apply in cases where the plaintiff was not of full capacity at the time of
the accident. Here, the standard of care may not be informed by a full consideration of
what would otherwise be reasonably (un)foreseeable in the circumstances just prior to
the accident. In dOing so, the standard of care (and any jury instruction thereon)
becomes contingent upon the capacity of the ultimate plaintiff. The assessment of the
standard of care becomes a backward-looking exercise, putting the cart before the
horse.
71. Accordingly, in this latter case, one cannot know the degree of care that a forward
looking reasonable person would take until the identity of the plaintiff is actually known.
72.· This makes no sense.
73. Quite simply, how can it be that the standard of care is informed by the foresight of a
reasonable person when the driver must wait until he knows the capacities of the
individual ultimately struck? If the pedestrian is a child, and at least in the context of a
jury trial, the defendant is then (and only then) effectively deprived of his otherwise
reasonable assumption that he may proceed with his right-of-way.
74. Especially in light of the integral role of foreseeability, the Appellants submit that there
was no principled or legal support for the Court of Appeal's departure from the well
established principles of negligence in this regard. - 26-
(ii) Must drivers be more than reasonably prudent?
75. At first blush, the Court of Appeal's decision may appear to be limited to just a small
number of cases where the pedestrian plaintiff cannot be found contributorily negligent.
In reality, the practical effect is to impose a demand of greater prudence upon all drivers
with the right-of-way.
76. This is the logical consequence of hinging the content of the standard of care upon the
capacities of the ultimate plaintiff. Because a driver cannot actually know how the
standard of care can be assessed by a jury until the identity of the ultimate plaintiff is
known, and because a driver can never know in advance the identity and capacity of an
ultimate plaintiff, a driver would be wise to drive as though she never has the right-of
way.
77. Practically speaking, this removal of foreseeability from the analysis means that all
drivers must drive on the assumption that a child may run out onto any road at any time,
regardless of a driver's right-of-way. This would be the case even in the absence of any
reasonable indication that children might be present on the roadway and despite any
posted speed limit.
78. This is because if her vehicle were to unfortunately strike an infant pedestrian, the
existence of her right-of-way could not ever assist her with a jury. According to the Court
of Appeal, her right-of-way could not be considered as an indication of a proper measure
of foresight and corresponding care.
79. As a more concrete example, Mr. Feener was driving along a highway with a posted
speed limit of 80kph. By the Court of Appeal's decision, the fact of Mr. Feener's right-of
wayan this highway should not have been put to the jury as something that would inform
the foreseeability component of the reasonable standard of care. Although the RCMP - 27-
reported that Mr. Feener was driving below the posted speed limit at the time of the
accident,39 it is implicit in the Court of Appeal's decision that he should have in fact been
driving much slower, as though he did not have the right-of-way.
80. Otherwise, Mr. Feener would find himself in the position he now faces. Although he had
the legal right-of-way on the highway, the fact the he had the right-of-way cannot now be
put to a jury in assessing the reasonableness of his conduct.
81. This effect is absurd. A driver is then very limited in being able to reasonably gauge the
(un)riskiness of her behaviour at any point in time on the road. In order to avoid any
disadvantage at a future jury trial, one should always then drive on the assumption that a
child may run out into any road at any time. Speed limits would lose meaning and, in the
words of Lord Atkinson (as quoted above by Cartwright J. of this Court) - ''Traffic in the
streets would be impossible".
82. Of course, there would be an advantage of safety if every driver saw fit to exercise the
most perfect amount of caution at all times. This, however, is not the law. The law of
negligence imposes only a standard of reasonable care, and nothing more. Not only is
this a clear dictate of negligence law,40 but it was also properly and repeatedly referred
to by the Trial Judge in his jury charge in this case.
83. On this point, the recent words of Campbell J. of the Ontario Superior Court of Justice
are most germane:
[T]he law recognizes that a driver faced with sudden, emergency situation not of his or her own making. cannot be held to a driving
39 Trial Exhibit No. 44 - RCMP Report of Sergeant Robert G. Forbes (redacted by Trial Judge) [Volume IV, Tab 5(b) of the Appellants' Record]. 1h 40 See eg: AM Linden & B Feldthusen, Canadian Tort Law 9 ed (Markham: LexisNexis, 2011) at 144- 148 [Tab 18 of the Appellants' Book of Authorities]; LN Klar, Tort Law, 41h ed (Toronto: Thomson Carswell, 2008) at 333 - 334 [Tab 16 of the Appellants' Book of Authorities]. - 28-
standard of perfection. In such dire circumstances, decisions about potential evasive action must be made instantly, without the time for calm and considered reflection, and with the threat of serious personal injury hanging overhead. Driving conduct in such emergent and stressful conditions cannot be judged against the standard of driving perfection that 20:20 hindsight will often provide. Rather, the driver should only be held to the standard of care expected of an ordinary, reasonable and prudent driver faced with those same sudden and emergent conditions.41 [emphasis added]
84. In the face of a "sudden, emergency situation not of his own making", the Appellants
submit that Mr. Feener did all that could have been reasonably done to avoid the
accident. This is what was submitted to the jury, and the jury agreed. To effectively
impose a more onerous standard of care upon a defendant driver - which is the practical
and logical consequence of the Court of Appeal's decision - is not supported in principle
or in law and should be rejected.
85. Accordingly, the Court of Appeal committed a reviewable error in finding a serious
misdirection on the part of the Trial Judge in the charge to the jury in this case. For this
reason, the Order of the Court of Appeal should be set aside and the jury verdict and
resulting Order of the Trial Judge should be restored.
41 Behmanesh, supra at para 16 [Tab 2 of the Appellants' Book of Authorities]. - 29-
PART IV - SUBMISSIONS CONCERNING COSTS
86. On success in this appeal, the Appellants submit that they are entitled to an award of
costs from this Honourable Court in the ordinary course, inclusive of their costs on the
application for leave to appeal. 42
87. The Appellants also submit that they are likewise entitled to their costs at both courts
below.
42 Judgment granting Leave to Appeal, issued October 13, 2011 [Volume II, Tab 3(h) of the Appellants' Record] - 30-
PART V ORDER SOUGHT
88. For all the foregoing reasons, the Appellants respectfully request that this appeal be
allowed, thereby setting aside the Order of the Court of Appeal below (inclusive of its
award of costs) and restoring the Order after Trial with Jury.
89. The Appellants further request an award of costs in their favour throughout, inclusive of
their costs in this Honourable Court and in the courts below.
ALL OF WHICH IS RESPECTFULLY SUBMITIED this 17th day of February, 2012. &==s~r.< Stewart McKelvey Suite 900, Purdy's Wharf Tower 1 1959 Upper Water Street Halifax, NS B3J 2X2
Tel: 902.420.3200 Fax: 902.420.1417
Scott C. Norton, a.c. G. Grant Machum
Counsel for Annapolis County District School Board and Douglas Ernest Feener - 31 -
PART VI- TABLE OF AUTHORITIES
Jurisprudence Paragraph(s)
BC Electric Ry Co Ltd v Farrer, [1955] SCR 757 60,62
Behmanesh v Yokhana, 2011 ONSC 4950 60,83
Bryne v Hodgins (1972), 27 DLR (3d) 617 (BCCA) 67
Byrne v Hodgins (1972),30 DLR (3d) 128 (SCC) 67
Canada (Attorney General) v Dingle Estate, 2000 NSCA 5 56
Dr Q v College of Physicians and Surgeons of British Columbia, [2003] 1 SCR 47 226
Hausen v Nikolaisen, [2002] 2 SCR 235 47
Jensen v Hall, [1961] NZLR 800 (CA) 63
Kalman v Thornton, 1998 CanLiI 5961 (BCCA) 68
Mustapha v Culligan of Canada Ltd, [2008] 2 SCR 114 51,53 - 55
Overseas Tankship (UK) Ltd. v Morts Dock & Engineering Co, [1961] AC 388 54 (PC)
Petijevich v Law, [1969] SCR 257 67
Walker v Brownlee, [1952] 2 DLR 450 (SCC) 61
Commentary Paragraph(s)
th JG Fleming, The Law of Torts, 8 ed (Sydney: The Law Book Company, 1992) 55,63
RP Kerans & KM Willey, Standards of Review Employed by Appellate Courts, 47 2d ed (Edmonton: Juriliber, 2006)
LN Klar, Tort Law, 4th ed (Toronto: Thomson Carswell, 2008) 82
AM Linden, "Foreseeability in Negligence Law" in Special Lectures of the Law 55 Society of Upper Canada - New Developments in the Law of Torts (Toronto: Richard DeBoo Limited, 1973) 55
AM Linden & B Feldthusen, Canadian Tort Law 9th ed (Markham: LexisNexis, 82 2011)
PH Osborne, The Law of Torts, 3d ed (Toronto: Irwin Law, 2007) 55 - 32-
PART VII STATUTORY PROVISIONS 33
CHAPTER 293 An Act in Relation to the Registration and Identification of Motor Vehicles and the Use of the Public Highways by such Vehicles
Short title 1 This Act may be cited as the Motor Vehicle Act.
INTERPRETATION Interpretation 2 In this Act, (a) "all terrain vehicle" means a wheeled or tracked vehicle designed for the transportation of per sons, property or equipment exclusively on marshland, open country or other unprepared surfaces, but does not include a snow vehicle; (b) "authorized insurer" means an insurance company lawfully authorized or permitted to carryon its business in the Province; " (c) "bicycle" means a device propelled by hu man power upon which or in which a person may ride and which has two tandem wheels either of which is 350 millimetres or more in diameter or which has four wheels any two of which are 350 millimetres or more in diameter but does not include a wheelchair; (d) "bus" means a motor vehicle operated by or on behalf of a person carrying on upon a highway the business of a public carrier of passengers for compen sation and includes any motor vehicle when used for such purpose that the Department shall determine; (e) "business district" means a territory con tiguous to a highway upon which fifty per cent or more of the frontage for a distance ?f not less than 100 me-
4913 34
c.293 . motor vehicle 89
Entering a highway 123 (1) The driver of a vehicle entering a highway shall yield the right of way to all vehicles approaching on the highway. Yielding to emergency vehicle (2) The driver of a vehicle upon a highway shall yield the right of way to police and fire department vehicles or ambulances when the latter are operated in emergencies and the drivers thereof sound audible signal by bell, siren, comp:fession or exhaust whistle and exhibit a red light as de fined in Section 179. Duty to drive safely (3) Subsection (2) shall not operate to relieve the driver of a police or fire department vehicle or ambu lance from the duty to drive with due regard for the safety of all persons using the highway, nor shall it protect the driver of any such vehicle from the consequence of an arbitrary ex ercise of such right of way. R.S., c. 191, s. 111; 1970, c.53, s.12;1970-71,c.51,s.18.
Duty on approach of emergency vehicle 124 Upon the approach of a police or fire department. vehicle or ambulance giving audible signal by bell, siren or exhaust whistle, the driver of every other vehicle shall im mediately drive the same to a position as near as possible and parallel to the right-hand edge or curb of the highway, clear of any intersection of highways, and shall stop and re main in that position unless otherwise directed by a peace of ficer until the police or fire department vehicle or ambulance has passed, and the motorman of every street car shall im mediately stop such car clear of any intersection and keep it in that position until the police or fire department vehicle or vehicles or ambulance has passed unless otherwise directed by a peace officer. R.S., c. 191, s. 112.
PEDESTRIANS Pedestrian right of way 125 (1) Subject to Section 126, the driver of a vehi cle shall yield the right of way to a pedestrian crossing the roadway within a marked crosswalk or within an unmarked
5001 35
90 motor vehicle c.293
crosswalk at the end of a block, except at intersections where the movement of pedestrian traffic is being regulated by peace officers or traffic control signs. Offence (2) Whenever a vehicle has stopped at a marked crosswalk or at an intersection to permit a pedestrian to cross the roadway it shall be an offence for the driver of any other vehicle approaching from the rear to overtake and pass the stopped vehicle. Vehicle right of way (3) Every pedestrian crossing a roadway at any point other than within a marked or unmarked crosswalk shall yield the right of way to vehicles upon the highway. Duty to exercise care " (4) This Section shall not relieve the driver of a vehicle or the pedestrian from the duty to exercise due care. R.S., c.191, s. 113; 1981, c. 34, s. 10; 1983, c. 36, s. 7.
Offence to disobey traffic signal 126 At an intersection where traffic is controlled by traffic signals, it shall be an offence for a pedestrian to dis obey the instruction of any traffic signal placed in accor dance with this Act unless otherwise directed by a peace offi cer. R.S., c. 191, s. 114.
Pedestrian to keep right 127 (1) Pedestrians shall move whenever practi cable upon the right half of crosswalks. Illegal not to use sidewalk (2) Where sidewalks are provided it shall be un lawful for any pedestrian to walk along and upon an adja cent highway. Walking where no sidewalk (3) Where sidewalks are not provided, any pe destrian walking along and upon a highway shall, when practicable, walk only on the left side of the roadway or its shoulder facing traffic which may approach from the oppo site direction. R.S., c. 191, s. 115; 1973, c. 42, s. 10.
5002
..J Motor Vehicle Act 36 Page 1 of171
Motor Vehicle Act
CHAPTER 293
OF THE
REVISED STATUTES, 1989
amended 1990, c. 36; 1993, CC. 30, 31; 1994, CC. 24, 25; 1994-95, c. 6, s. 65; 1994-95, c. 12; 1994-95, c. 18, s. 3; 1995-96,cc. 20, 22,23; 1996,cc.34,35; 1997,c.5; 1998, c. 32, ss. 1-4; 1999, c. 4, s. 26; 1999, c. I I, ss. 1-12, 17; 2000, c. 14; 2001, c. 12, ss. 2-21; 2001, c. 44, ss. 1-10; 2002, c. 5, s. 33; 2002, c. 10, ss. 10-21; 2002, c. 20, ss. 1-3,5-12; 2002, c. 30, s. 14; 2003 (2nd Session), c. I, ss. 28-33; 2004, c. 6, ss. 21-23; 2004, c. 41; 2004, c. 42, ss. 1-4,6-16; 2005, c. 8, ss. 9-15; 2005, c. 32, ss. 3, 4; 2005, c. 38, ss. 1,2; 2005,c. 54;2006,c. 35; 2006,c. 36; 2006,c. 37;2007,c.9,s. 30; 2007, c. 20, ss. 8, 9; 2007, c. 45 SS. l(b), 4-13,17-24,27; 2008, c. 21, ss. 1,2,8-11; 2008, c. 22; 2008, c. 23; 2008, c. 61; 2008,c.62;2009,c.5,8.24;2009,c.22;2009,c.23
NOTE - This electronic version of this statute is provided by the Office of the Legislative Counsel for your convenience and personal use only and may not be copied for the purpose of resale in this 01' any other form. Formatting of this electronic version may differ from the official, printed version. Where accuracy is critical, please consult official sources.
An Act in Relation to the Registration and Identification of Motor Vehicles and the Use of the Public Highways by such Vehicles
Short title
1 This Act may be cited as the Motor Vehicle Act. R.S.. c. 293. s. 1.
INTERPRETATION
Interpretation
http://nslegislature.callegc/statutes/motorv.htm 2/15/2012 Motor Vehicle Act 37 Page 62 of 171 of way. R.S., c. 293, s. 123.
Duty on approach of emergency vehicle
124 Upon the approach of a police or fire department vehicle or ambulance giving audible signal by bell, siren or exhaust whistle, the driver of every other vehicle shall immediately drive the same to a position as near as possible and parallel to the right-hand edge or curb of the highway, clear of any intersection of highways, and shall stop and remain in that position unless otherwise directed by a peace officer until the police or fire department vehicle or ambulance has passed, and the motol1nan of every street car shall immediately stop such car clear of any intersection and keep it in that position until the police or fire department vehicle or vehicles or ambulance has passed unless otherwise directed by a peace officer. R.8., c. 293, s. 124.
PEDESTRIANS
Pedestrian and vehicle rights of way
125 (1) Where pedestrian movements are not controlled by traffic signals,
(a) the driver of a vehicle shall yield the right of way to a pedestrian lawfully within a crosswalk or stopped facing a crosswalk; or
(b) where the traffic on a highway is divided into separate roadways by a median, the driver of a vehicle shall yield the right of way to a pedestrian lawfully within a crosswalk or stopped facing the crosswalk on the roadway on which the vehicle is travelling.
(2) Where a vehicle has stopped at a crosswalk to yield to a pedestrian pursuant to subsection (1), it is an offence for the driver of any other vehicle approaching from the rear to overtake and pass the stopped vehicle.
(3) A pedestrian shall not leave a curb or other place of safety and walk or run into the path of a vehicle that is so closely approaching that it is impractical for the driver of the vehicle to stop.
(4) Where a pedestrian is crossing a roadway at a crosswalk that has a pedestrian-activated beacon, the pedestrian shall not leave a curb or other place of safety unless the pedestrian-activated beacon has been activated.
(5) A pedestrian crossing a roadway at any point other than within a crosswalk shall yield the right of way to vehicles upon the roadway.
(6) This Section does not relieve a pedestrian or a driver of a vehicle from the duty to exercise due care. 2007, c. 45, s. 9.
Crossing guard
125A (I) A crossing guard may direct children across a roadway only at a marked crosswalk and as part of the crossing guard's employment.
(2) Before directing children across a roadway, a crossing guard shall
(a) display an approved stop sign in an upright position so that it is visible to all approaching vehicular
http://nslegislature.callegc/statutes/motorv.htm 2115/2012