SUPREME COURT OF
CANADA
|
Citation: Annapolis County District
School Board v. Marshall, 2012 SCC 27
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Date:
20120607
Docket:
34189
|
Between:
Annapolis County
District School Board and Douglas Ernest Feener
Appellants /
Respondents on cross-appeal
and
Johnathan Lee
Marshall, represented by his Guardian, Vaughan Caldwell
Respondent /
Appellant on cross-appeal
Coram:
McLachlin C.J. and Deschamps, Abella, Rothstein, Cromwell, Moldaver and
Karakatsanis JJ.
|
Reasons for
Judgment:
(paras. 1 to 13)
Dissenting
Reasons:
(paras. 14 to 15)
|
Deschamps J. (McLachlin C.J. and Abella, Rothstein, Moldaver
and Karakatsanis JJ. concurring)
Cromwell J.
|
Note:
This document is subject to editorial revision before its reproduction in final
form in the Canada Supreme Court Reports.
 |
annapolis county dist. sch. bd.
v. marshall
Annapolis County District School Board and
Douglas Ernest Feener
Appellants/Respondents on
cross‑appeal
v.
Johnathan Lee Marshall, represented by his Guardian,
Vaughan Caldwell
Respondent/Appellant on cross‑appeal
Indexed
as: Annapolis County District School Board v. Marshall
2012
SCC 27
File No.:
34189.
2012: May 8; 2012: June 7.
Present:
McLachlin C.J. and Deschamps, Abella, Rothstein, Cromwell, Moldaver and
Karakatsanis JJ.
on appeal
from the court of appeal for nova scotia
Torts — Negligence — Standard of care — Contributory negligence — Child
running into path of oncoming bus suffering severe injuries — Whether trial
judge erred in improperly inviting jury to find child responsible for accident —
Motor Vehicle Act, R.S.N.S. 1989, c. 293, s. 248.
J, a four‑year‑old boy, suffered catastrophic injuries when he ran onto a
highway and into the path of an oncoming empty school bus driven by F. A jury
decided that there was no negligence by F that caused or contributed to J’s
damages. The Court of Appeal ordered a new trial finding that, in referring to
statutory right‑of‑way provisions, the trial judge improperly invited the jury
to treat J like an adult and therefore find him responsible for the
accident.
Held (Cromwell J. dissenting): The appeal should be allowed and
the cross‑appeal dismissed.
Per McLachlin C.J. and Deschamps, Abella, Rothstein, Moldaver and
Karakatsanis JJ.: There were no errors in the trial judge’s instructions to
the jury. Rather, the Court of Appeal failed to appreciate the dual function of
the statutory right‑of‑way provisions, which inform the assessment of whether a
pedestrian was contributorily negligent and also help determine whether a driver
breached the applicable standard of care. When the instructions on those
provisions are read in light of the entire charge, it is clear they served only
to delineate the standard of care applicable to F. The jury was invited to
consider the conduct of a reasonable pedestrian in assessing whether F had
demonstrated the requisite degree of precaution. The trial judge made it clear
that, as a child, J’s liability was not at issue, and in no part of the charge
did he instruct the jury to adjudicate on J’s negligence.
Per Cromwell J. (dissenting): As held by the Court of Appeal, there was
a real risk that the charge, viewed as a whole, left the jury with the
understanding that it was to consider whether the child was responsible for the
accident. The critical point, which was not made clearly in the charge, was
that the jury had to consider whether the circumstances were such as to put the
defendant on notice that children might be present and that he should exercise
greater care. The misdirection may have given rise to an injustice. The
cross‑appeal should be dismissed. The evidence is not of such a character that
only one view can reasonably be taken of its effect.
Cases Cited
By Cromwell J. (dissenting)
Byrne v. Hodgins (1972), 30 D.L.R. (3d) 128, rev’g (1972), 27 D.L.R. (3d)
617 (sub nom. Bryne v. Hodgins); Petijevich v. Law, [1969]
S.C.R. 257; Jardine v. Northern Co‑operative Timber and Mill Association,
[1945] 1 W.W.R. 533.
Statutes and Regulations Cited
Motor Vehicle Act, R.S.N.S. 1989, c. 293,
s. 248.
APPEAL from a judgment of the Nova Scotia Court of Appeal (MacDonald C.J.N.S.
and Saunders and Beveridge JJ.A.), 2011 NSCA 13, 298 N.S.R. (2d) 373, 945 A.P.R.
373, 6 M.V.R. (6th) 1, [2011] N.S.J. No. 54 (QL), 2011 CarswellNS 54, reversing
the dismissal of the plaintiff’s action and ordering a new trial. Appeal
allowed and cross‑appeal dismissed, Cromwell J. dissenting.
Scott C. Norton, Q.C., G. Grant Machum, Sara Scott and
Scott R. Campbell, for the appellants/respondents on cross‑appeal.
R. Malcolm Macleod, Q.C., and Robert K. Dickson, Q.C., for the
respondent/appellant on cross‑appeal.
The judgment of McLachlin C.J. and Deschamps,
Abella, Rothstein, Moldaver and Karakatsanis JJ.was delivered by
Deschamps J.
—
[1] On the
afternoon of April 12, 1994, the respondent, four-year-old Johnathan Lee
Marshall, was playing with his brothers in front of the family home, located
along Highway 201. At the same time, the appellant Douglas Ernest Feener was
driving his empty school bus along Highway 201 after having dropped off a load
of elementary school children. As Mr. Feener approached the Marshall home,
Johnathan ran onto the highway and into the path of the oncoming bus. Mr. Feener
could not stop in time and Johnathan was struck. He suffered catastrophic
injuries.
[2] Through
his litigation guardian, Johnathan brought an action against Mr. Feener and his
employer, the Annapolis County District School Board. The matter was heard in
the Supreme Court of Nova Scotia before Pickup J. and a jury. After a ten-week
trial, the jury answered “no” to the following question:
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?
[3] The
resulting order was appealed to the Nova Scotia Court of Appeal on four
principal grounds: (1) the trial judge’s reference in his charge to the
provisions of the Motor Vehicle Act, R.S.N.S. 1989, c. 293, concerning
the duty of pedestrians to yield the right of way to vehicles; (2) his handling
of the reverse onus provisions contained in s. 248 of the Motor Vehicle
Act; (3) his explanation of the special duty of care owed by motorists where
children are present; and (4) his admission of an RCMP investigation report.
The Court of Appeal ordered a new trial on the basis of the first ground alone.
With respect to the other grounds of appeal, MacDonald C.J.N.S., writing for the
Court of Appeal, did not find that the trial judge had committed reversible
errors, but simply made suggestions to improve the instructions to be given to
the jury in the event of a new trial (2011 NSCA 13, 298 N.S.R. (2d) 373, at
paras. 36, 40, 47 and 50).
[4] At
issue in this appeal is whether the Court of Appeal erred in finding that the
trial judge had misdirected the jury in referring to the right-of-way provisions
of the Motor Vehicle Act. For the reasons that follow, I conclude that it
did and that the appeal should be allowed. No other elements of the trial
judge’s charge warrant intervention.
[5] The
portion of the charge to the jury which the Court of Appeal found to constitute
reversible error is reproduced below (A.R., vol. I, at pp. 100-3):
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 RSN is 1989,
Chapter 293 in particular Section 125(3) and (4). And that says, 125(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.”
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.”
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 impu[nity]. The question
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.
. .
.
He [the driver] 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 result. However, he’s entitled to assume that motorists will
drive according to the law.
[6]
MacDonald C.J.N.S. concluded that, in referring to the right-of-way
provisions of the Motor Vehicle Act, the trial judge improperly invited
the jury to treat Johnathan “like an adult” (para. 16). This, according to
MacDonald C.J.N.S., would have left the jury “with little choice but to find
Johnathan responsible for this accident” (para. 19) even though the trial judge
had already concluded that Johnathan could not be contributorily negligent
because of his young age. In offering guidance for a possible retrial, MacDonald
C.J.N.S. recommended expunging the entire passage dealing with the right-of-way
provisions of the Motor Vehicle Act (para. 38).
[7] I agree
with the appellant that the Court of Appeal failed to appreciate the dual
function of statutory right-of-way provisions. Not only do such provisions
inform the assessment of whether a pedestrian was contributorily negligent by
failing to yield a right of way, they can also help determine whether a driver
breached the applicable standard of care in the circumstances. In this case,
even though Johnathan’s contributory negligence had been ruled out as a matter
of law, the statutory right-of-way provisions continued to inform the standard
of care that Mr. Feener owed to all pedestrians. The jury needed to be told
that, absent special circumstances, where the driver has the right of way, he or
she can reasonably proceed on the assumption that others will follow the rules
of the road and yield the right of way to drivers.
[8] I
respectfully disagree with the Court of Appeal’s conclusion that, in referring
to the right-of-way provisions, the trial judge effectively invited the jury to
find Johnathan legally responsible for the accident. At the outset of his
charge, Pickup J. made it clear that Johnathan’s liability was not at issue
because of his young age (A.R., vol. I, at p. 44). In no part of the charge did
the trial judge instruct the jury to adjudicate on the child’s negligence. When
the trial judge’s instructions on the right-of-way provisions are read in light
of the entire charge, it is clear that they served only to delineate the
standard of care applicable to Mr. Feener. The jury was invited to consider the
conduct of a reasonable pedestrian in assessing whether Mr. Feener had
demonstrated the requisite degree of precaution.
[9] A
further factor that had to inform the jury’s ruling on Mr. Feener’s negligence
was whether there were special circumstances that would indicate to the driver
that he was in an area where children were likely to be present. In this
respect, the trial judge made the following comment to the jury:
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. [A.R., vol. I, at p. 102]
[10] The
respondent argues that the jury would have inferred from the trial judge’s
instructions that a motorist need only take precautions in the three specific
circumstances cited, and therefore that Mr. Feener would not have had to take
precautions in this case. I cannot accept this submission. The accident clearly
did not take place in a school or playground area or in a built-up residential
district. The trial judge was asking the jury whether the situation was one in
which Mr. Feener should have expected children to be present. In this context, I
see no error in the trial judge’s instruction.
[11] In this
Court, as in the Court of Appeal, the respondent maintains that the trial judge
also erred in explaining the burden of proof on motorists under s. 248 of the
Motor Vehicle Act and in admitting an RCMP report. For the reasons given
by the Court of Appeal, I am of the view that there is no reversible error.
[12] The
respondent has cross-appealed, seeking a finding of liability against the
appellants in the event that the Court dismissed the appeal. As I would allow
the appeal, the merits of the cross-appeal do not need to be considered.
[13] For these
reasons, I would allow the appeal with costs throughout, including costs of the
application for leave to appeal in this Court, dismiss the cross-appeal without
costs and restore the order after trial with jury of the Supreme Court of Nova
Scotia.
The following are the reasons delivered by
Cromwell J. —
[14]
With respect to my colleagues who have taken the
opposite view, I would uphold the decision of the Court of Appeal. Although I
make no comment on the Court of Appeal’s suggestions for the conduct of a second
trial, I would adopt as my own, paras. 16-18 of the Court of Appeal’s reasons:
2011 NSCA 13, 298 N.S.R. (2d) 373. Much like in Byrne v. Hodgins (1972),
30 D.L.R. (3d) 128 (S.C.C.),
affirming the dissent in (1972), 27
D.L.R. (3d) 617 (B.C.C.A.) (sub nom. Bryne v. Hodgins), there was a
real risk in this case that the charge left the jury with the understanding that
it was to consider whether the plaintiff was responsible for the accident. The
critical instruction was that the jury had to consider 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 should therefore exercise greater
care. This instruction was given almost in passing and in the midst of confusing
instructions about the duty of pedestrians and self-contradictory instructions
about the burden of proof. The plaintiff was entitled to have the key liability
issue in the case put to the jury in clear terms. Looking at the charge as a
whole, this, in my respectful view, did not occur. The misdirection may have
given rise to an injustice. I would therefore dismiss the appeal.
[15]
I would also dismiss the cross-appeal from the Court of
Appeal’s decision to send the matter back for a second trial. It cannot be said
in this case that “the evidence is of such a character that only one view can
reasonably be taken of its effect”: Petijevich v. Law, [1969] S.C.R. 257, at p. 265, quoting
from Jardine v. Northern Co-operative Timber and Mill Association, [1945]
1 W.W.R. 533, at p. 535 (B.C.C.A.). This Court is not in a position to make a
determination on liability.
Appeal allowed with costs throughout, Cromwell J. dissenting. Cross‑appeal
dismissed.
Solicitors
for the appellants/respondents on cross‑appeal: Stewart McKelvey, Halifax.
Solicitors for the respondent/appellant
on cross‑appeal: Boyne Clarke, Dartmouth.
