File Number: 34189 Between: APPELLANTS/RESPONDENTS ON
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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