Janvier v., 2010 ABQB 800

Court of Queen ’ s Bench of Alberta Citation: Janvier v. 834474 Alberta Ltd., 2010 ABQB 800 Date: 20101216 Docket: 0503 13981 Registry: Edmonton Between: David Janvier and Her Majesty the Queen in Right of Alberta Plaintiffs - and - 834474 Alberta Ltd., Siemon Deboer, Alberta-Pacific Forest Industries Inc. and Regional Municipality of Wood Buffalo Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I. Introduction [ 1 ] The Defendants 834474 Alberta Ltd. and Siemon Deboer appeal the dismissal of their

summary judgment application by the presiding Master on May 26, 2010. The Plaintiff Mr. Janvier alleges personal injuries arising out of a motor vehicle accident caused when he rear-ended the vehicle operated by the Defendant Mr. Deboer and owned by the Defendant 834474.

II. Background Facts [ 2 ] The motor vehicle accident in question occurred on August 16, 2003 near the intersection of secondary Highway 881 at Cowpar Road, near the hamlet of Janvier, in the Province of Alberta. [ 3 ] Highway 881 was a gravel road frequently used by gravel and logging trucks. It is alleged by the Plaintiff that the Defendant Alberta-Pacific Forest Industries Inc. (“Al-Pac”) was the contractor managing and overseeing gravelling operations on a

section of Highway 881 near its intersection with Cowpar Road. It was also alleged by the Plaintiff that the highway was subject to the direction, control and management of the Defendant Regional Municipality of Wood Buffalo, but the Court was advised during the hearing of the Appeal that the action has been discontinued as against the Municipality. [ 4 ] The Defendant Deboer was the operator of a gravel truck which was towing a pup trailer. The vehicle was owned by the Defendant 834474. [ 5 ] When Mr.

Janvier turned onto Highway 881, he immediately began following the gravel truck and trailer unit (“the truck”) operated by the Appellant Deboer. The truck created a large cloud of dust which enveloped Mr. Janvier’s vehicle and significantly reduced his visibility. He was completely surrounded by the cloud of dust for approximately six kilometres. [ 6 ] The Defendant Deboer began to slow down as he approached Cowpar Road where he intended to make a left-hand turn. He testified in Discovery that he had his signal light on and that he slowed by gearing down and braking.

He then felt the Plaintiff’s vehicle collide with the rear of the truck and he stopped right away. The Plaintiff sustained very serious injuries. [ 7 ] The Defendants 834474 and Deboer brought an application for

summary judgment against the Plaintiff pursuant to Rule 159(2) of the Alberta Rules of Court as they existed before November 1, 2010 (“the old Rules”) on May 26, 2010. The Master dismissed the application. The Defendants Al-Pac and Municipality were not parties to the application and are not parties to this Appeal. Therefore, “the Defendants” in this judgment refers only to the Defendants 834474 and Deboer. The Master’s Decision [ 8 ] The Master delivered his reasons orally on May 26, 2010.

They were as follows: ... the test is whether or not there is a genuine issue for trial, and the party resisting must show some legally arguable cause of action, or if their opposing Affidavits clash and if not destroyed on cross-examination, there must be a trial. The cause of action need only be arguable to resist

summary judgment. A reasonable doubt on a legally relevant point is enough to prevent

summary judgment. It must be shown that the claim has no reasonable prospect of success. Based on my review of the Statement of Claim and the Affidavits of the opposing parties, it is clear to me that this is a matter that should go to trial, and there should not be

summary judgment. The application is dismissed with costs under the appropriate column payable in any event and forthwith. ... III. Standard of Review [ 9 ] The new Alberta Rules of Court (“the new Rules”) came into force on November 1, 2010. Rule 15.12 of the new Rules provides:

15.12 Where these rules impose a new test, provide new criteria or provide an additional ground for making an application in an existing proceeding, these rules apply in respect of the application if the application was made but has not been heard prior to the coming into force of these rules. [ 10 ] Rule 6.14 of the new Rules provides, in part: 6.14(3) An appeal from a master’s judgment or order is an appeal on the record of proceedings before the master and, if the judge permits, may also be based on new evidence that is significant enough that it could have affected the master’s decision.

(4) The record of proceedings is (

a) the application before the master, (

b) affidavits and other evidence filed by the parties respecting the application before the master, (

c) any transcript of proceedings before the master, unless the Court dispenses with this requirement, and (

d) the master’s judgment or order and any written reasons given for the decision. [ 11 ] The application before the Master was brought on May 26, 2010 and his decision was rendered on that date. The Notice of Motion appealing his decision was filed by the Appellants on June 28, 2010. In accordance with Rule 15.12, Rule 6.14 of the new Rules applies to the decision of the Master on this appeal. [ 12 ] Historically in Alberta, appeals from decisions of masters were considered de novo . That is, there was a new hearing before a Queen’s Bench judge who was not bound, in any way, by the decision of the master.

There was no deference given to the master’s decision. Such was the state of the law in Alberta for over 90 years (see United Utility Workers Association of Canada v. TransAlta Corp. , 2004 ABCA 200 at para. 4 ). [ 13 ] Rule 6.14 of the new Rules has changed the way in which an Appeal Court is to consider an appeal from a decision of the Master. An appeal from a Master is no longer a hearing de novo . It is now an appeal on the record. As such, the standard of review for the decision of the Master must be determined before the Appeal Court considers the appeal on its merits. [ 14 ] In Housen v.

Nikolaisen , 2002 SCC 33 (CanLII) , [2002] 2 S.C.R. 235, the Court considered the different standards of review applicable to different issues that may arise on appeal. On a pure question of law, an Appeal Court is free to replace the opinion of the trial judge with its own. The standard of review is one of correctness (at para. 8). [ 15 ] The Master generally does not have jurisdiction to determine disputed or contentious questions of fact: Court of Queen's Bench Act , R.S.A. 2000, c. C-31, s. 9(3)(b). If there remains a dispute on material facts at the time of the application, there must be a trial.

However, if one party’s evidence on material facts is either destroyed by cross-examination on affidavit or the introduction of other evidence rendering that party’s evidence completely non-credible, then the Master may accept certain facts or may draw inferences of fact. Such findings or inferences of fact are not to be interfered with unless the Master made a “palpable and overriding error”.

That is, the Master is entitled to a high degree of deference on findings or inferences of facts drawn from the evidence. [ 16 ] Questions of mixed fact and law involve applying a legal standard to a set of facts ( Housen at para. 26 ). The applicable level of deference depends upon the characterization of the error made. Where the erroneous finding can be traced to an error in law, there is less deference given and the applicable standard is one of correctness.

Where the legal principle cannot readily be extricated from the factual questions, then the finding is subject to the more stringent standard of palpable and overriding error ( Housen at para. 37 ; De Shazo v. Nations Energy Co. , 2005 ABCA 241 ).

[ 17 ] The standard of review from the dismissal of an application for

summary judgment is correctness in identifying the legal test for

summary judgment and reasonableness in the decision itself ( Airco Aircraft Charters Ltd. v. Edmonton Regional Airports , 2010 ABCA 364 at para. 7 ). The Alberta Court of Appeal has said that in the absence of an error of law, the Chambers Justice “has considerable discretion in an application for

summary judgment” and interference is warranted only where “the Justice has come to an unreasonable conclusion” ( Baugh v. Faculty Assn. of Red Deer College , 2004 ABCA 203 at para. 6 ). [ 18 ] In

summary, the standard of review on a decision from the Master on a question of law is correctness. The standard of review for facts accepted by the Master or factual inferences drawn by the Master from the evidence is reasonableness. The finding must amount to a palpable and overriding error. The imputed error must be plainly identified and must be shown to have affected the result.

On a question of mixed fact and law, if the principle of law cannot be extricated from the question, then the standard of review is again one of reasonableness only to be interfered with if a palpable and overriding error can be shown.

If the principle of law can be extricated from the question, then the standard of review on the principle of law is correctness. [ 19 ] While the stated issue before the Master in this case was whether or not there was a genuine issue for trial, the underlying question to be addressed was whether it was plain and obvious on the facts before him that the Plaintiff would be unable to establish any liability on the part of the Defendants for the losses sustained by the Plaintiff.

In other words, were there facts before the Master which might establish some degree of negligence on the part of the Defendants or was it plain and obvious that no liability would attach to them? [ 20 ] The question of whether there are sufficient facts to establish negligence against the Defendants is a question of mixed fact and law. The standard of review is, therefore, reasonableness. For the Defendants to succeed in this appeal, they must show that the Master made a palpable and overriding error in determining that the Defendants had not met the

summary judgment test. IV. Analysis [ 21 ] The application by the Defendants before the Master was for

summary judgment pursuant to Rule 159(2) of the old Rules. The test for

summary judgment is whether it is plain and obvious that the action cannot succeed (or, in the language of new Rule 7.3(1) (b), that there is no merit to a claim). In determining the issue, the Court “must look at the merits of the claim and the defence and determine whether there is an issue requiring a trial. A defendant must show more than a strong likelihood that he will succeed; the pleadings and evidence on the motion must show that the claim has no reasonable prospect of success...” ( Prefontaine v.

Veale , 2003 ABCA 367 at para. 9 ). [ 22 ] The Plaintiff alleges that the Defendants were negligent in causing the accident. In negligence actions, there is often the possibility of a finding that two or more parties were jointly liable or contributorily negligent. In many negligence cases, the possibility exists that the Defendants may be found only partially liable while another party or parties, including the Plaintiff, may also be found negligent to a greater or lesser degree. In order to succeed in an application for

summary judgment against the Plaintiff in a tort action, it must be plain and obvious that the Plaintiff will be unable to establish any liability on the part of the Defendants. That is, the Plaintiff must have no reasonable prospect of establishing that the applicant Defendants were even 1% responsible for the loss and damages. [ 23 ] The Master did not specify the act or acts alleged to have been committed by the Defendants that might result in a finding of some degree of negligence against them. He simply stated that his review of the Statement of Claim and the Affidavits made it “clear...that this is a matter that should go to trial, and there should not be

summary judgment”. Accordingly, I must consider whether the evidence adduced by the parties and contained in the record is sufficient to support a possible finding of some negligence on the part of the Defendants. The Allegations Against the Defendants [ 24 ] Paragraph 14 of the Statement of Claim lists a number of alleged negligent acts by the Defendants Deboer and 834474, though the Plaintiffs appear to rely on three. Those three allegations, the evidence relating to them and my assessment of them are as follows:

(

a) the Defendants failed to request, instruct or demand that the gravel road surface be watered so as to prevent, lay, settle and/or reduce the amount of dust created artificially by method of operations [ 25 ] The Plaintiff says that the Defendants were negligent in failing to request, instruct or demand that Highway 881 be wetted to prevent dusting.

He further alleges that they were negligent in failing to complain of the dry road conditions to Al-Pac. [ 26 ] Counsel provided no case law or statutory provision suggesting that the user of a highway is under a duty to other users of the highway to request, instruct or demand from the owner or manager of that highway that it be wetted to prevent dusting.

To impose a duty of care on one user of a highway to all other users of the highway to request, instruct or demand that something be done to the highway or to complain about its condition would be to exponentially expand beyond reason the number of parties against whom an action may lie.

If such a duty did exist, a plaintiff would have a potential action against every other person who used the highway before the plaintiff during that time when adverse conditions may have existed on the highway. [ 27 ] One can only imagine the number of potential defendants in an action by a plaintiff who is injured as a result of hitting a patch of black ice on the QEII Highway in Alberta in the middle of winter.

There would be no limit to the number of individuals who may be found liable to an injured party. [ 28 ] Further, and no less importantly, the Plaintiff in this case was fully aware of the condition of the highway at all times. He decided to follow the Defendants’ truck for six kilometres in a cloud of dust with little or no visibility. He was quite capable of waiting until the cloud of dust had dissipated before following the Defendants’ truck.

Further, he was equally as capable as the Defendants of contacting the owner or manager of the highway with any requests or complaints. [ 29 ] In short, I believe this allegation against the Defendants has no merit and no reasonable prospect of success. (

b) the Defendants failed to ensure that the Defendant vehicle was equipped with all lamps and reflectors required by law, or that such lamps and reflectors were not in good working order [ 30 ] No evidence has been adduced to support the allegation that the Defendant vehicle was in a poor state of repair or that it did not have all requisite lamps or reflectors in working order. Mr.

Deboer deposed that the vehicle was in good working order and repair and a “Truck & Trailer Inspection Certificate” dated April 2, 2003 indicates that the vehicle passed all inspection protocols, was in good repair and had all the required lamps and reflectors in working order. [ 31 ] Mr. Deboer further deposed that on August 16, 2003, he followed his standard practice in conducting a manual pre-trip inspection to check that all lights were working. He states that the left signal light and brake lights were working, as were all of the lights, when he left the shop. [ 32 ] The Plaintiff suggests that Mr.

Deboer could not have checked to see if his brake lights were functional on his own. However, the Defendant was not examined on that point and there is nothing to contradict his evidence that he did check and found them all to be working. Of course, Mr.

Deboer would have been unable to check the lights while he was driving, but it is also important to remember that the Plaintiff admitted to driving in a cloud of dust for about six kilometres during which time he knew that the Defendants truck was in front of him and he could see neither the vehicle nor its lights. [ 33 ] Pursuant to Commercial Vehicle Safety Regulation , Alta.

Reg. 121/2009 passed pursuant to the Traffic Safety Act , R.S.A. 2000, c.T-6 an owner shall not permit a driver to drive, and a driver shall not drive, a commercial vehicle unless it has been inspected in accordance with daily trip inspection requirements as set out therein ( s. 10(2) ). Pursuant to s. 10(9), a copy of the

schedule confirming the daily trip inspection must be located in the vehicle. Mr. Deboer acknowledged that he did not document his pre-trip inspection and the Plaintiff suggests that his failure is evidence of negligence on his part. [ 34 ] Mr. Deboer’s failure to document the pre-trip inspection may be a breach of the regulation and could have resulted in Mr. Deboer being penalized. However, his failure to document does not amount to a negligent act by Mr. Deboer in causing the accident. It is also not evidence that contradicts his testimony that he did conduct a pre-trip inspection, or his evidence that all of the lights were in

good working order. While it could be argued that the failure may affect the credibility of Mr. Deboer and reduce the weight that should be given to his evidence, I do not see any basis on which to do so. That is, there is nothing else in the evidence contradicting his testimony. [ 35 ] It is acknowledged by all parties that the dust created serious visibility problems. The evidence of Mr. Deboer that all the lights were working when he began his trip is not cast in doubt due to the Plaintiff’s acknowledged difficulty caused by “almost zero visibility” and his inability to see either the truck or its lights.

In his affidavit, the Plaintiff describes the road conditions as “hazardous due to the extreme dusty conditions”. Yet he chose to travel in a cloud of dust for six kilometres with little or no visibility. [ 36 ] In my view, the Plaintiff has no reasonable prospect of succeeding against the Defendants on this allegation. (

c) the Defendant Deboer operated the motor vehicle in a reckless, dangerous and negligent manner and without proper regard for the rights and safety of other users of the highway [ 37 ] The Plaintiff submits that the Defendant Deboer was negligent as he should have pulled his truck over to let the Plaintiff pass prior to executing a left-hand turn. [ 38 ] The Defendant Deboer was, at all material times, travelling in front of the Plaintiff. The Defendant had the right of way.

Whether the Defendant Deboer was aware of a vehicle behind him or not, there is no obligation on him, or any driver, to yield or pull over so as to allow a following vehicle to pass before executing a left-hand turn. No contrary authority was placed before the Court.

I do not believe the Plaintiff has any reasonable prospect of success of establishing any liability on the part of the Defendants on this allegation. [ 39 ] As indicated earlier, it must be plain and obvious that the Plaintiff cannot succeed in establishing some degree of negligence, however small, on the part of the Defendants in order for the Defendants to succeed in a

summary judgment application. That is, there must be no reasonable prospect of success in establishing that the Defendant was negligent to any degree in order for the Court to grant

summary judgment in favour of the Defendants. [ 40 ] The Plaintiff was aware that the gravel roads caused dust to be kicked up behind vehicles travelling on the highway. Prior to the accident, he was fully aware of the safety concerns created by the dust. The Plaintiff consciously elected to travel behind the Defendants’ truck for six kilometres in a cloud of dust which fully enveloped his vehicle. He did so knowing that the “almost zero visibility” prevented him from seeing the Defendants’ vehicle or its lights.

He testified that the only reason he knew there was a vehicle in front of him was because of the dust. In short, he knew there was a truck in front of him, he knew the risks created by the dust kicked up by the vehicle, he knew that he could not see the vehicle, and yet he continued to travel behind it and wholly within a cloud of dust created by the vehicle for six kilometres. [ 41 ] The Plaintiff argues that the Defendant Deboer could have done more to ensure that the brake lights or signal light were more visible to vehicles following him.

However, no explanation was provided as to how the Defendant Deboer could have done so. The Plaintiff knew that his visibility was negligible and no evidence was given as to the distance from the Defendant’s vehicle from which lights could have been visible.

Further, no explanation was given by the Plaintiff as to why he could not wait for the dust to settle before turning on to the highway nor was any explanation given as to why he did not simply slow down once on the highway so as to allow the dust kicked up by the truck to settle before following behind. [ 42 ] I also believe this allegation against the Defendants to have no merit and no reasonable prospect for success.

Summary on Prospect of Success [ 43 ] The issue is whether the Master was reasonable in finding that there was no reasonable prospect for success. While this requires a double application of a “reasonable” analysis, I am satisfied that on the undisputed facts before the Court, the Plaintiff’s claim

in negligence against the Defendants Deboer and 834474 Alberta Ltd. has no reasonable prospect of success. Quite simply, there is no evidence before the Court that suggests any degree of fault on the part of the Defendants for the accident and resulting injuries to the Plaintiff. Accordingly, on the basis of the evidence adduced on the application for

summary judgment before the Master, his dismissal of the

summary judgment application was unreasonable. V. Conclusion [ 44 ] On the evidence before the Court, it is plain and obvious that the Plaintiff cannot succeed in establishing any negligence on the part of the Defendants Deboer and 834474 Alberta Ltd. That is, the Plaintiff has no reasonable prospect of success in establishing any degree of negligence on their part. Accordingly, the appeal is allowed and

summary judgment dismissing the claim as against the Defendants 834474 Alberta Ltd. and Siemon Deboer is hereby granted. Heard on the 30 th day of November 2010. Dated at the City of Edmonton, Alberta this 16 th day of December 2010. Eric F. Macklin J.C.Q.B.A. Appearances: Senia Tarrabain Tarrabain & Company for the Plaintiffs Tara C. Argent McLenna Ross LLP for the Defendants