Herbers v. Canada (Attorney General), 2011 ABQB 502

Court of Queen ’ s Bench of Alberta Citation: Herbers v.

Canada (Attorney General), 2011 ABQB 502 Date: 20110810 Docket: 0703 00254 Registry: Edmonton Between: Christina Herbers, Chad Herbers, Jaina Herbers, a Minor by Her Next Friend, Christina Herbers, and Her Majesty the Queen In Right of Alberta Plaintiffs - and - Attorney General of Canada, ABC Co., John Doe No. 1, John Doe No. 2, John Doe No. 3, John Doe No. 4, The City of Edmonton, Michael John Boyd, John Doe No. 5, John Doe No. 6, The Estate of Charles Skinty (Deceased), Gerard Michaud as Personal Representative of the Estate of Charles Skinty, and Chad James Kobelka Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Brian R. Burrows _______________________________________________________

[ 1 ] Was the Defendant Chad James Kobelka living with and as a member of the family of Charles Skinty on January 7, 2006? Are the circumstances of this case within s. 187(1) of the Traffic Safety Act, R.S.A. 2000, c. T-6? That

section reads: 187(1) In an action for the recovery of loss or damage sustained by a person by reason of a motor vehicle on a highway, a person who, at the time that the loss or damage occurred, (

a) was driving the motor vehicle, and (

b) was living with and as a member of the family of the owner of the motor vehicle, is deemed, with respect to that loss or damage, (

c) to be the agent or employee of the owner of the motor vehicle, (

d) to be employed as the agent or employee of the owner of the motor vehicle, and (

e) to be driving the motor vehicle in the course of that person ’ s employment. [ 2 ] On January 7, 2006, Mr. Kobelka took Mr. Skinty ’ s 1985 Ford F-250 truck from Mr. Skinty ’ s residence without Mr. Skinty ’ s consent or knowledge and was driving it when it was in an accident as a result of which the Plaintiffs suffered damages. [ 3 ] The accident happened when the vehicle driven by Mr. Kobelka was being pursued by vehicles driven by members of the Edmonton Police Service and the R.C.M.P.

Those agencies (as represented, in the case of the Edmonton Police Service, by the City of Edmonton and Michael John Boyd, the Chief of Police at the time, and in the case of the R.C.M.P., by the Attorney General of Canada) are therefore also Defendants. These Defendants have admitted liability for the accident. [ 4 ] Charles Skinty died on November 8, 2006, 10 months after the accident. As the style of causes indicates, Gerard Michaud is his Executor. [ 5 ] Mr. Kobelka was charged with theft of Mr. Skinty ’ s vehicle.

He plead guilty to and was convicted of that offence and six other offences arising out of the accident including flight from a peace officer and dangerous operation of a motor vehicle. Mr. Kobelka was not insured. The Administrator of the Motor Vehicle Accident Claims Act is involved because Mr.

Kobelka was not insured. [ 6 ] In an Agreed Statement of Facts the parties state that if the Estate of Charles Skinty is held to be vicariously liable under section 187(1) of the Traffic Safety Act , even though such liability would be joint and several with that of the RCMP and the City of Edmonton, by agreement, the Estate ’ s liability will be limited to 50% of any judgment for damages or costs, provided however that such liability will not in any event exceed the limits of the insurance policy insuring Charles Skinty. [ 7 ] In this trial of a preliminary issue, the Plaintiffs, the Attorney General of Canada, the City of Edmonton, and the Administrator of the Motor Vehicle Accident Claims Act took the position that Mr.

Kobelka was living with and as a member of Mr. Skinty ’ s family at the time of the accident. They called 9 witnesses with knowledge relevant to that point. The Estate of Charles Skinty took the position that Mr. Kobelka was not living with and as a member of Mr. Skinty ’ s family at the time of the accident. It called 6 witnesses. [ 8 ] I will summarize the evidence of these 15 witnesses:

Witnesses Called by the Plaintiffs and Defendants Allied with the Plaintiffs 1. Chad James Kobelka [ 9 ] Mr. Kobelka is 23 years old. At the time of the accident on January 7, 2006, he had recently turned 18. He is presently in prison. [ 10 ] He testified that he was related to Mr. Skinty on his father ’ s side but was not certain as to exactly how he and Mr. Skinty were related. He referred to Mr. Skinty as his uncle. [ 11 ] His evidence in chief was that at the time of the accident he was “ living off and on ” at Mr. Skinty ’ s house and at his mother ’ s house. His mother lived in St.

Albert with her husband, Chris Thompson, and her other children. [ 12 ] He testified that when he was 11 or 12 years old he had lived with Mr. Skinty for about 4 years, that Mr. Skinty “ took guardianship ” of him during that time because he, Mr. Kobelka, wanted to stay in Edmonton when his mother moved to Saskatchewan. I understood his evidence to be that this arrangement lasted for about 4 years and that it had come to an end when he was 15 or 16 at which time his mother moved back to Edmonton and he lived with her. Thereafter he stayed some of the time with Mr.

Skinty. [ 13 ] He testified that his mother ’ s house was being renovated in the 6 months preceding the accident. The room he had in the basement was unavailable to him because of the renovations so he stayed with Mr. Skinty. During the same time, he said, his brother and sister lived with his grandmother because of the renovations going on in their usual home. However, he testified, that by the time of the accident he had a room at his mother ’ s house again. I understood his testimony to be that as a result of that room being available to him again he was alternating between Mr.

Skinty ’ s and his mother ’ s every few days. [ 14 ] Prior to the accident, the last time he had slept at his mother ’ s house was a couple of nights earlier. He did not specifically testify as to where he slept the night before the accident. I inferred from his evidence that it was not at his mother ’ s house, but whether it was at Mr. Skinty ’ s or someplace else was not specifically addressed in his testimony. [ 15 ] At the time of the accident Mr. Kobelka was doing concrete work in the new home construction industry.

He worked with his stepfather. [ 16 ] He testified that at the time of the accident he had a room at Mr. Skinty ’ s house. It was the same room as had been his when he lived with Mr. Skinty a few years earlier. He kept clothes at Mr. Skinty ’ s house – in the dresser in the bedroom. He also kept clothes at his mother ’ s house. He transported his toiletries back and forth between the houses. He ate meals at Mr. Skinty ’ s house frequently in the months before the accident. Mr. Skinty would cook for him. [ 17 ] He testified that he would help with some chores at Mr.

Skinty ’ s house: mowing the lawn, gardening, shoveling snow. He did his own laundry. He testified that when he was 17 or 18 he started to pay rent - a couple of hundred dollars a month. His evidence in that regard was sketchy. [ 18 ] He testified that Mr. Skinty had given him a dirt bike and had taken him into the country so he could ride his dirt bike on several occasions. I understood his evidence to be that this had occurred when he was living with Mr. Skinty between the age of 11 and 15 and not in the months preceding the accident. [ 19 ] He testified that Mr.

Skinty would give him money sometimes when he asked for it, in particular when he wanted money to go to the movies. Again I understood his evidence to be that this occurred when he was living with Mr. Skinty between the age of 11 and 15 and not in the months preceding the accident. He testified that Mr. Skinty had given him money for gas for a vehicle other than the

vehicle that was in the accident some time prior to and close in time to the accident. [ 20 ] He testified that Mr. Skinty allowed him to have his friends over to Mr. Skinty ’ s house. He said Mr. Skinty treated him like a son. They sometimes had arguments. Mr. Skinty sometimes gave him advice. He would be angry with Mr. Kobelka when he came in late. [ 21 ] Mr. Kobelka had a key to Mr. Skinty ’ s house. [ 22 ] He testified he spent Christmas 2005 at Mr. Skinty ’ s house and was not at his mother ’ s house for Christmas that year. [ 23 ] The accident happened at 7:00 or 8:00 p.m. on January 7, 2006. Mr.

Kobelka testified that he could not remember where he ate dinner the day of the accident. He testified he was at Mr. Skinty ’ s, drinking alcohol with Mr. Skinty, got in an argument with him, and asked Mr. Skinty to drive him to his mother ’ s house. Mr. Skinty refused. Mr. Kobelka took the keys to Mr. Skinty ’ s truck which were on a ledge at the front door and drove himself. [ 24 ] After the accident he was arrested. Mr. Skinty posted $2800 bail for him. It was a condition of his release that he reside at Mr. Skinty ’ s house. When he breached the conditions of his bail, he was arrested at Mr.

Skinty ’ s house. [ 25 ] In cross-examination Mr. Kobelka was shown a document entitled “ Statutory Declaration ” which was in the handwriting of Mr. Terry Russell, an insurance adjuster, and was dated January 16, 2006, 10 days after the accident. Mr. Kobelka was in remand custody at the time. In cross-examination Mr. Kobelka did not recall meeting with Mr. Russell. In re-examination he testified he had a dim memory of providing the statement, and that he had met with the insurance adjuster at the Remand Centre for about an hour.

He acknowledged that the document bore his signature. [ 26 ] In the Statutory Declaration Mr. Kobelka declared: I am a relation to Charles Skinty of 8812 - 137 Avenue, Edmonton, Alberta; he is my great uncle. I have resided with my mother Joanne Collins full time for the past two years. . . . On January 7, 2006 I was staying at the residence of Charles Skinty. I went to his residence on January 6, 2006 around noon and had lunch there. Later on January 6, 2006, I started drinking alcohol at Charles Skinty ’ s residence, his alcohol, he offered it to me.

I had 3, two ounce shots of whiskey and water in a cup around 6 p.m. I stayed at Charles Skinty ’ s residence that night as a guest, not as a roommate or tenant although I still had my room there, and some belongings, my bed, dresser and clothes. I had lived there before for 3 years or more in 1998, 1999 and 2000. I left Charles Skinty ’ s residence around July or August 2000. I had been living with my mother and working with her boyfriend since that time to the present.

I had left my bed, dresser and some clothes at Charles Skinty ’ s residence when I left there to go live with my mother as Charles Skinty had told me I was welcome to. I stayed with Charles Skinty at his residence lots in 2005 every weekend and some week nights. I had free rein to come and go from his residence as I felt. I did not have a key to his house. I gave it back to him when I moved out in 2000. . . . [ 27 ] When cross-examined on this Statutory Declaration, Mr.

Kobelka testified that in early January 2006 he considered both his mother ’ s residence and Charles Skinty ’ s residence to be his primary residence. He professed that his memory at trial of a lot of the things contained in the Statutory Declaration was poor and acknowledged it would have been better at the time of the Statutory Declaration. When asked specifically about the statement in the Statutory Declaration that he had stayed at Mr. Skinty ’ s residence “ as a

guest and not as a roommate or tenant ” he responded that it was possible that was the case. He agreed that the declaration was accurate when it said that he had left Mr. Skinty ’ s residence around 2000 and had been living with his mother since then. He said that the statement in the Statutory Declaration that he did not have a key to Mr. Skinty ’ s house was untrue. He acknowledged that the dresser at Mr. Skinty ’ s house which he referred to as “ his dresser ” was one that Mr. Skinty had supplied. Mr. Kobelka did not own it. [ 28 ] Mr. Kobelka was not an impressive witness.

I had the impression that rather than make his evidence more reliable than it otherwise might have been, the fact that he had no personal interest in the litigation made him less careful in his testimony. Often when his answer was “ I don ’ t remember ” I had the impression that he did not consider the effort it would take to try to remember warranted. 2. Christopher Paul Thompson [ 29 ] Mr. Thompson testified that he began living with Mr. Kobelka ’ s mother, Joanne Collins, some time before the accident.

His evidence was unclear as to how long before the accident – in one answer he said he put the start of their cohabitation around Christmas 2004. In another answer he said he was with her for 3 or 4 years before January 2006. [ 30 ] When he first moved in with Ms. Collins, it was into a townhouse in Hermitage. All 3 of Ms. Collins ’ children, including Chad Kobelka, lived with her at the time. They moved from there to a house in St. Albert. All 3 children moved with them. [ 31 ] About a year and a half before the accident Mr. Thompson and Ms. Collins forbade Chad Kobelka from living in their home.

This was because of his drug use and his delusional behaviour. Mr. Thompson testified that after that Chad stayed a lot at Mr. Skinty ’ s. He would sometimes come to the St. Albert house and when Mr. Thompson found out, he would take him back to Mr. Skinty ’ s house. [ 32 ] Mr. Thompson testified that Mr. Skinty had become angry with Chad in the summer of 2005 when Chad tore up the room he was staying it at Mr. Skinty ’ s house. He understood Mr. Skinty kicked him out. After that, Mr. Thompson testified, he did not know where Chad stayed. But he understood that after a time Chad returned to living at Mr.

Skinty ’ s house. [ 33 ] Mr. Thompson testified that even after Chad had been kicked out of the St. Albert residence, he had a good relationship with his mother as they were both drug addicts. Ms. Collins would let Chad into the house. When Mr. Thompson discovered him there, he would kick him out. [ 34 ] Mr. Thompson acknowledged in cross-examination that he himself, as well as Ms. Collins and Mr. Kobelka, was a cocaine user. He also acknowledged that his understanding that Mr. Kobelka was living at Mr.

Skinty ’ s house in the fall of 2005 and early 2006 is speculative, in effect an assumption made on the basis that Mr. Kobelka was not living at the St. Albert house. 3. Joanne Collins [ 35 ] Ms. Collins testified as how Chad Kobelka and Charles Skinty were related. Chad ’ s father was Darcy Stewart. Charles Skinty was Darcy Stewart ’ s mother ’ s cousin. As I understood the evidence, Mr. Skinty ’ s mother and Chad Kobelka ’ s great grandmother were sisters. [ 36 ] Ms. Collins and Darcy Stewart separated when Chad was 6 months old. Ms. Collins married James Kobelka, the father of her two younger children.

That marriage ended in late 1996. [ 37 ] Ms. Collins moved to Saskatchewan in 1997. Chad stayed in Edmonton with Charles Skinty with whom Ms. Collins had maintained contact since her relationship with Darcy Stewart. Chad stayed with Mr. Skinty for about 6 months – until the end of the summer of 1997 when Ms. Collins returned from Saskatchewan. For a time thereafter, Chad would stay with Mr. Skinty some week nights and some weekends. When Ms. Collins became concerned that Chad was not going to school from Mr. Skinty ’ s she stopped his

weeknight stays at Mr. Skinty ’ s house. [ 38 ] In 2001 Ms. Collins ’ daughter was seriously injured when, as a pedestrian, she was hit by a car. Chad was with her when the accident happened. Ms. Collins testified that Chad blamed himself for the accident and inferred that the deterioration of his behaviour thereafter was related to this. Chad got into trouble with the law. He was placed in a group home but ran away. Ms. Collins thought he was out of control. He went to Bosco Homes. He was there for 5 months - this was in late 2001 and early 2002. [ 39 ] Thereafter he lived at Ms.

Collins ’ house and spent a lot of time at Mr. Skinty ’ s on weekends. [ 40 ] Ms. Collins testified that she and Mr. Thompson lived together from 2002 to 2009. They originally lived in Hermitage and then in August 2003 moved to St. Albert. This included Ms. Collins, Mr. Thompson, and all 3 children, including Chad. There was another couple who lived in the house from 2003 to 2006. Chad had his own bedroom in the St. Albert house. [ 41 ] Renovations of the St. Albert house were begun in 2005. These required Chad to move into the basement, into the rumpus room.

From the summer of 2005 to January 2006 he was staying in the rumpus room in the basement. [ 42 ] Somewhat inconsistently, Ms. Collins also testified that in August 2005 Chad ’ s behaviour was such that social services threatened to apprehend the younger two children if Chad did not move out. So Chad was required to leave the St. Albert house. He went to Mr. Skinty ’ s. Ms. Collins testified that he never came back before he went to jail. He would come to the door from time to time and Ms. Collins would turn him away. She would visit Chad at Mr. Skinty ’ s once or twice a week. [ 43 ] Ms.

Collins testified that Mr. Skinty prepared meals for Chad. He did Chad ’ s laundry. Chad would mow the lawn, shovel snow, do dishes. Mr. Skinty was Chad ’ s mentor. They would have fights and the next day it was as if nothing had happened. Mr. Skinty looked at Chad as his son. [ 44 ] During the fall of 2005 Chad continued to work with Mr. Thompson. Mr. Thompson would pick him up or Mr. Skinty would drive Chad to work. [ 45 ] Also during this period, from some time in the fall of 2005 to June of 2006, Ms. Collins ’ other two children went to live with their grandmother because Ms.

Collins had substance abuse problems and she wanted to clean up. [ 46 ] Ms. Collins testified that Chad had stayed at Mr. Skinty ’ s the night before the accident. Chad came to the St. Albert house driving Mr. Skinty ’ s truck the next day. Ms. Collins testified that she did not remember Chad having been at her house for quite a while before that. She considered his home to be at Mr. Skinty ’ s. [ 47 ] After the accident Ms. Collins gave a statement to the police. It said: Chad stayed home Friday night. Sat. a.m. everyone got ready to go.

I was going to the Bank and Chris dropped Chad off at Uncle Charlies and then didn ’ t see him until 8:30 - 9 p.m. . . . [ 48 ] Ms. Collins was asked during examination in chief what the first sentence meant. She did not reply except to say that her memory was that Chad had spent the night before the accident at Mr. Skinty ’ s. In cross-examination she suggested that the second sentence meant that Chris dropped Chad off at Mr. Skinty ’ s after work. The suggestion is very weak. [ 49 ] In the statement Ms.

Collins also described an incident about 2 months earlier when she took Chad to the hospital because she thought he was suffering from a mental illness. In cross- examination she said she had taken him from the work site to the hospital for this purpose. I find that difficult to credit.

4. Chad Eaglesham [ 50 ] Chad Eaglesham and Chad Kobelka have been friends since they were children living in the same neighborhood. They have remained friends since then. [ 51 ] A year or two after Mr. Eaglesham met Mr. Kobelka, in 1999 or 2000, Mr. Kobelka ’ s mother moved to Saskatchewan and Chad went to say with Mr. Skinty, who Mr. Kobelka called, “ Uncle Charlie ” . Mr. Eaglesham visited Mr. Kobelka at Mr. Skinty ’ s residence. Mr. Kobelka had his own room and had all his possessions in that room. Mr. Kobelka did chores. Mr. Skinty prepared meals and did Mr. Kobelka ’ s laundry. He would discipline Mr.

Kobelka. [ 52 ] This arrangement lasted 2 years according to Mr. Eaglesham. Then Mr. Kobelka returned to live with his mother who had returned from Saskatchewan. Many of Mr. Kobelka ’ s possessions stayed at Mr. Skinty ’ s house. Mr. Kobelka continued to be at Mr. Skinty ’ s house very frequently and stayed there a couple of nights a week. [ 53 ] As far as Mr. Eaglesham is aware this arrangement continued right up to the time of the accident. Mr. Kobelka ’ s drug use would create tensions between he and Mr. Skinty. Sometimes Mr. Skinty would require him to leave but he would later take him back in. [ 54 ] Mr.

Eaglesham understood that in the time before the accident Mr. Kobelka was living at both Ms. Collins ’ house in St. Albert and at Mr. Skinty ’ s house in Edmonton. Sometimes, when he was doing drugs, he wouldn ’ t stay at either place. Mr. Eaglesham was not sure about how much time Mr. Kobelka was spending at Mr. Skinty ’ s house in the fall of 2005 because Mr. Eaglesham himself was not around much that fall. But sometimes he would go to visit Mr. Skinty and Mr. Kobelka would be there. He testified that in the fall of 2005, as far as he knows, Mr. Kobelka would stay with Mr. Skinty 2 or 3 nights a week.

The bedroom, he said, was always available to either Mr. Kobelka or Mr. Eaglesham at that time. Chad Kobelka used Mr. Skinty ’ s house as a flophouse or a safehouse when he wasn ’ t welcome at his mother ’ s house. [ 55 ] Mr. Eaglesham testified that on January 7, 2006 he and Mr. Kobelka were both at Mr. Skinty ’ s in the afternoon. He could not recall whether Mr. Kobelka was there when he arrived or if Mr. Eaglesham arrived first. He did not know where Mr. Kobelka had stayed the night before. 5.

Constable Danielle Smith [ 56 ] Constable Smith was the EPS officer assigned to guard Chad Kobelka at the hospital after his arrest on the night of the accident. She testified that on January 8 at 2:09 p.m. Mr. Skinty called the nursing station and spoke to her. He called to inquire about Mr. Kobelka ’ s health. He said he was Mr. Kobelka ’ s guardian. 6. William Clark [ 57 ] EPS Detective Clark testified that he had dealings with Chad Kobelka between 2001 and 2003. He dealt with him at Mr. Skinty ’ s house. His understanding was that Mr. Kobelka was living at that house most of the time but not all the time.

He had no record or memory of any involvement with Mr. Kobelka after 2003. 7. Ronald Palser [ 58 ] Ronald Palser was a Crown Prosecutor involved in a bail revocation application concerning Mr. Kobelka in April 2006. Mr. Skinty had posted bail for Mr. Kobelka. He told Mr. Palser that he and Mr. Kobelka were related and that he had been Mr. Kobelka ’ s guardian for some time. He told Mr. Palser that he was concerned about Mr. Kobelka ’ s behaviour and that he would lose the bail

money. He wanted the bail revoked. Mr. Kobelka ’ s counsel did not oppose the bail revocation. 8. Penny Gordon [ 59 ] In the fall of 2005 Ms. Gordon was an investigator with Children ’ s Services. She conducted an investigation concerning Ms. Collins ’ children in the fall of 2005. She made an application for a supervision order under the Child, Youth and Family Enhancement Act on December 9, 2005.

In connection with that application she prepared a report concerning her investigation. [ 60 ] The report indicated that there had been previous Child and Family Services involvement with this family in May of 2005, . . . when an investigation took place regarding Chad ’ s violent behaviors and the fact that he was putting his siblings at risk, more specifically Chelsea [Ms. Collins ’ daughter] due to her brain injury. The matter was closed after Chad apparently moved out of the family home and Joanne was going to access community supports. [ 61 ] Ms.

Gordon ’ s report also stated: Joanne currently resides with her common-law partner, Christopher Thompson, Chelsea Kobelka, . . . and Chad Kobelka. [ 62 ] It indicated that Mr. Thompson ’ s 5-year-old son did not live in the home “ due to concerns of having Chad living back in the home ” . [ 63 ] The report also stated: The investigator attended the home of Joanne Kobelka. . . . Joanne indicated that she is afraid of Chad, and she is unable to constantly protect the children from his physical aggressiveness.

She stated that she is intending on seeking a restraining order against him and have him removed from the family home by the R.C.M.P. [ 64 ] Ms. Gordon confirmed that it was her understanding that as of the time of her visit to the St. Albert house in late November or early December 2005, Mr. Kobelka was living there. 9. Bonita Shirley Duval [ 65 ] Ms. Duval is Chad Kobelka ’ s grandmother. She testified as to Chad ’ s living arrangements when his mother went to live in Saskatchewan. As others testified, he went to live with Mr. Skinty at that time. Ms.

Duval had no recall of when that arrangement ended. [ 66 ] Ms. Duval was in frequent telephone contact with Mr. Skinty in the fall of 2005 - as much as 2 or 3 times a week. She derived the impression from those conversations that Mr. Kobelka was staying at Mr. Skinty ’ s most of the time. If she wanted to speak to Mr. Kobelka or to meet with him, she would call or go to Mr. Skinty ’ s house. [ 67 ] She testified that at Christmas 2005 she and her husband went to the St. Albert house and Chad was there.

Witnesses called by the Estate of Charles Skinty 1. Gerard Raymond Michaud [ 68 ] Mr. Michaud is Mr. Skinty ’ s Executor. Mr. Skinty was Mr. Michaud ’ s wife ’ s uncle. He knew Mr. Skinty for 34 years. They were in frequent contact. The year or so before his death they would communicate almost daily by e-mail and frequently by telephone. Mr. Michaud believes he knew Mr. Skinty very well. [ 69 ] Mr. Michaud and his wife live in Cold Lake, Alberta. So did Mr. Skinty until about 1996 when he moved to Edmonton. Mr. Michaud and his wife, and in earlier years their children, would visit Mr.

Skinty often and stay in his house. In 2005 their visits were at least once a month, sometimes more often. They would stay in the bedroom which was the “ guest room ” in Mr. Skinty ’ s house. The evidence as to the configuration of the house indicates that this was the same room as the room in which Mr. Kobelka stayed when he was there. But, Mr. Michaud testified, there was never anyone else staying there when they visited. [ 70 ] Mr. Michaud testified that the closet in the guest room was filled with Mr. Skinty ’ s shirts.

The contents of the room gave no indication that anyone was living there on a permanent basis. [ 71 ] Mr. Michaud knew Chad Kobelka. Mr. Skinty had brought Mr. Kobelka to Cold Lake once when Mr. Kobelka was a child. Mr. Michaud had also met Ms. Collins. [ 72 ] Mr. Skinty died on November 8, 2006 of a heart attack while shoveling snow. Mr. Michaud was in Mr. Skinty ’ s house the next morning. There wasn ’ t anything different about it. When the house was cleaned out Mr. Michaud found nothing that he did not think belonged to Mr. Skinty. [ 73 ] Mr. Michaud was not aware of Mr.

Skinty having taken care of Chad Kobelka during the time that Ms. Collins was in Saskatchewan. He did not recall knowing that Mr. Skinty was at one time Mr. Kobelka ’ s guardian, though he testified that his wife had recently told him she had known and that he, Mr. Michaud, had also been aware of it before. 2. Aimie Marie Emma Michaud-Chabot [ 74 ] Ms. Michaud-Chabot is Mr. Michaud ’ s daughter. She was Mr. Skinty ’ s great niece. [ 75 ] She testified that as a child she visited Mr. Skinty frequently as a member of the Michaud family. Before he moved to Edmonton the visits would be very frequent.

After his move they were less frequent, but still regular. [ 76 ] When Ms. Michaud-Chabot grew up and went to university in Lethbridge she was in frequent e-mail contact with Mr. Skinty. After she was married e-mail contact lessened. They would be in touch every few weeks. [ 77 ] Ms. Michaud-Chabot testified that when she visited Mr. Skinty in Edmonton, she would sometimes stay in the “ guest room ” depending on what other members of her family were present. She was in the room in October 2005. There was nothing in it at the time which suggested anyone was living there permanently.

She was in that room again after Mr. Skinty died and noticed no changes in its contents from when she had been there in October 2005. [ 78 ] Ms. Michaud-Chabot knew Chad Kobelka. She believes the first time they met was at a Christmas celebration at Mr. Skinty ’ s house in 1998. She recalled another time in 2000 when she arrived at Mr. Skinty ’ s house and Mr. Kobelka was just leaving. On that occasion she remembers seeing a duffle bag containing clothes in the guest bedroom. She assumed it was Mr. Kobelka ’ s. She understood that Chad had moved into Mr. Skinty ’ s house in late 1999 or early 2000.

She recalled an e-mail from Mr. Skinty in August

or September 2004 in which he said he had kicked Chad out. [ 79 ] Ms. Michaud-Chabot and her husband moved into their Edmonton house in late November 2005. Mr. Skinty visited them there. In the course of conversation, when asked about Chad, he said that Chad was no longer in his life, that he had kicked Chad out. This was in the first week of December 2005. 3. Constable Robert Furlong [ 80 ] EPS Constable Robert Furlong testified that on December 21, 2005 he was assigned to investigate a complaint received from Mr. Skinty that Mr. Kobelka had stolen his credit card.

Constable Furlong ’ s report, which was entered in evidence, says in part: Skinty stated that on 05 Dec 19, at 0400 hrs a relative of his, Kobelka, Chad/James, attended his address. Kobelka knocked on the door and asked Skinty if he could come inside because he was cold and wanted something to eat. Skinty then went to bed. At around 0600 hrs Skinty awoke to find that Kobelka had helped himself to something to eat and had since left the residence. Skinty suspecting Kobelka may have taken money from his wallet, which was left in the living room, went to check, but found none of the cash missing.

Skinty then locked the door; which had been left unlocked by Kobelka and went back to bed. During the last couple of days Skinty received a credit card statement from the Bank of Montreal, which indicated that $400.00 had been placed onto his credit without his knowledge or consent. Skinty believes that Kobelka may have taken his credit card on 05 Dec 19, during his brief visit.

Skinty is unsure of where the card went missing or how long, but stated to police that he will attempt to collect further information to determine where and when the card was used. [ 81 ] Constable Furlong testified that he later phoned Mr. Skinty to follow up but he did not respond. He testified that he was perplexed that Mr. Skinty had apparently learned of the misuse of his credit card when he received his statement, but he did not have the statement to show Constable Furlong. Mr. Skinty told Constable Furlong that Mr. Kobelka lived on the streets and did not have any address.

Constable Furlong recorded “ NFA ” [no fixed address] in the space on his report for Mr. Kobelka ’ s address. 4. Pauline Marie Harris [ 82 ] Ms. Harris, who now lives in Bedeck, Nova Scotia, lived in the basement suite of Mr. Skinty ’ s house from November 2001 until November 2007. She had met both Chad Kobelka and Chad Eaglesham. She understood Chad Kobelka was Mr. Skinty ’ s nephew. More than once she saw Chad Kobelka when she and he were smoking in the back yard, smoking not being allowed in the house. They had no significant conversation. She never saw either young man doing any chores around the house.

She had formed the impression that Mr. Kobelka was a drug user. She had overheard Mr. Skinty and Mr. Kobelka argue about money. [ 83 ] She was aware of the accident of January 7, 2006 but does not now recall how she heard of it. [ 84 ] She testified that she did not have the impression in the time preceding the accident that anyone other than Mr. Skinty was living upstairs in the house. She did not have the impression that Chad Kobelka was living there. She did not see him at the house as frequently as she would expect if he had been living there. She stayed in the basement suite for almost a year after Mr.

Skinty died and then moved to Nova Scotia. 5. Christopher Paniak [ 85 ] In July 2005, Dr. Paniak, a clinical neuropsychologist, was retained to assess Mr. Kobelka ’ s sister Chelsea. In the course of that assessment he interviewed Ms. Collins. Dr. Paniak ’ s report identified Ms. Collins ’ three children and stated:

All 3 children are currently living at home with Ms. Collins and her fiancé. However, Chelsea ’ s older brother will be going to live with his father soon because he is reportedly very disrespectful of Ms. Collins and sometimes gets physically aggressive. He had lived with his uncle for about 2 months, a while ago, because Ms. Collins kicked him out. [ 86 ] Dr. Paniak testified that he derived this information from interviewing Ms.

Collins and from documentation she completed. [ 87 ] In his interview of Chelsea Kobelka, she told him that she “ cannot say much about her brothers because her younger brother is always at his friends ’ homes and her older brother is always outside the home ” . 6. Terence Mark Russell [ 88 ] Mr. Russell was the insurance adjuster who took the statement from Mr. Kobelka in the Remand Centre. He testified that he explained to Mr. Kobelka who he was and the purpose of his visit. He told Mr. Kobelka he needed to know how it was Mr. Kobelka was at Mr. Skinty ’ s house and how he came to be driving Mr.

Skinty ’ s truck and what happened when he was driving it. [ 89 ] Mr. Russell wrote out the Statutory Declaration as Mr. Kobelka told him the story. When the story ended, Mr. Russell asked Mr. Kobelka to read the statement over. Mr. Kobelka said he would prefer that Mr. Russell read it to him. [Other evidence indicated Mr. Kobelka ’ s reading ability was very poor.] After Mr. Russell read it to him he asked Mr. Kobelka if there was anything that should be changed or added. Mr. Kobelka said there was not. [ 90 ] Mr. Russell also obtained two statements from Mr. Skinty.

In both cases he followed the same process as he followed with Mr. Kobelka. He obtained the first statement before he obtained the statement from Mr. Kobelka. After obtaining Mr. Kobelka ’ s statement, Mr. Russell returned to Mr. Skinty because he wanted to obtain Mr. Skinty ’ s position on some of the things Mr. Kobelka had said in his statement. Admissibility of Mr. Skinty ’ s Statement [ 91 ] The Skinty Estate offered Mr. Skinty ’ s statements in evidence. The Plaintiffs and the Defendants allied with them objected. I heard argument and ruled that the statements were admissible.

I indicated I would give reasons later. [ 92 ] The admissibility of the Skinty statement turns on whether their admission into evidence, given that they are hearsay, is necessary and whether the statements are apparently reliable. Necessity was not disputed. The issue came down to reliability. [ 93 ] Mr. Alloway, opposing the admission of the statements into evidence, argued that reliability was questionable given that pertinent information was missing. In particular, he submitted, there is no mention of the fact that Mr. Skinty had been drinking on the day of the accident or that Mr. Kobelka had lived with Mr.

Skinty in the past. [ 94 ] Mr. Alloway ’ s examples are not accurate. In Mr. Skinty ’ s second statement, he said, “ I did not pour him [Chad Kobelka] whiskey, if he had any alcohol it was my beer he helped himself to from my fridge. . . . I was impaired that night but after Chad Kobelka had left my house. ” In Mr. Skinty ’ s first statement he said, “ . . . once or twice he [Chad Kobelka] stayed with me while his mother was in a facility; 3 - 4 or so years ago.

Once or twice I was named his guardian. ” I see no foundation for an argument that his statements omit significant information and are therefore unreliable. [ 95 ] Mr. Alloway also submitted that there was an inconsistency between Mr. Skinty ’ s first and second statements which rendered them unreliable.

[ 96 ] In particular, in Mr. Skinty ’ s first statement he said, “ He [Chad Kobelka] has never driven any of my vehicles in the past. ” In the statement he gave the adjuster Mr. Kobelka said, “ When I lived with Mr. Skinty [several years before the accident] I did drive his 1985 Ford pickup 3 or 4 times on the highway with him as a front seat passenger with his knowledge and permission. I never drove any of his vehicles on my own or by myself. ” In Mr.

Skinty ’ s second statement he said, “ He [Chad Kobelka] did drive my pickup on a couple of occasions when he lived here back around 1998, 1999 and 2000. ” [ 97 ] The inconsistency between Mr. Skinty ’ s first and second statements as to Mr. Kobelka ’ s having driven his vehicle in the past does more to enhance the apparent reliability of the statements than to damage it. When reminded of occasions in the distant past when Mr. Kobelka had driven his vehicle, Mr. Skinty corrected his earlier statement. The mistake in the first statement is clearly understandable.

The fact that he acknowledged his error adds to the apparent reliability of his refutation of other information in Mr. Kobelka ’ s statement. [ 98 ] Mr. Alloway submitted that Mr. Skinty ’ s statement is not reliable because he gave it in the context of a potential claim against him for the damage and injury Mr. Kobelka caused. I reject this submission. It is clear from the statement Mr. Skinty knew he was insured. For him to lie to his insurer ’ s agent would create a risk of coverage being denied. He had little to gain and much to lose by lying. [ 99 ] Mr. Alloway submitted that evidence of Mr.

Skinty ’ s crusty demeanor when dealing with the 911 operator and the insurance adjuster damages the reliability of his statement. I fail to understand how this submissions is founded in logic. [ 100 ] Mr. Alloway submitted that Mr. Skinty ’ s statement was unreliable because it was recorded by an insurance adjuster who was an agent of the insurer who had an interest in Mr. Skinty ’ s statement being favorable to its position. I also reject this submission. At the time Mr. Skinty gave his statement neither he nor the adjuster knew he would die 10 months later. To credit Mr.

Alloway ’ s submission is to accept that Mr. Russell would accept the risk that Mr. Skinty would testify that the statement was not an accurate record of what he told Mr. Russell at trial. When Mr. Russell testified before me I derived the impression that he was experienced and careful in taking statements from people involved in an insurance claim. The suggestion implied by Mr. Alloway ’ s submission is not warranted. [ 101 ] I found Mr. Skinty ’ s statements to have the degree of reliability required to justify their reception in evidence. Statement of Charles Skinty [ 102 ] In his statement Mr.

Skinty said: . . . Chad James Kobelka is the son of my cousin ’ s son. He comes to visit me occasionally, once or twice he stayed with me while his mother was in a facility 3 - 4 years ago. Once or twice I was named his guardian. . . . Chad lives in St. Albert. Chad comes to visit on average once a month, sometimes less than that. On January 7 th , Chad came to visit me around 2:30 p.m. He was in and out of my house several times in the afternoon. Chad Eaglesham left around 6:30. I do not allow smoking in my house so Chad Kobelka was in and out to smoke.

Somewhere throughout the evening he stole my truck keys. . . . [ 103 ] In the subsequent statement - January 18 he said: I Charles Skinty wish to refute and clarify some points made by Chad Kobelka. He does not have a bed and dresser at my residence and only has two pairs of socks and a shirt left at my residence. . . . Chad Kobelka did not stay at my residence the night before he stole my struck, that best I can recall he came here around 2:00 - 2:30 pm the day of the theft. . . .

The other point to refute is that Chad Kobelka did not stay with me every weekend in 2005 and some week nights, that is absolutely not true. Chad Kobelka has never had any keys to my house at any time . . . The Authorities

[104] Counsel referred me to a number of cases where the issue as to whether the driver of a vehicle was living with and as amember of the family of the owner of the vehicle has been decided. It is apparent that the conclusion in each case has been criticallydependant upon the unique facts of the case. Therefore it is perhaps not appropriate to characterize the generalized conclusions stated bythe judges in these cases as “principles”. Nevertheless I have found them helpful. I will briefly summarize the points I have drawn fromthese authorities: Public Policy Basis for the Provision [105] The purpose of this

section is to protect people who suffer damage as a result of the acts of a person who is not the owner ofthe vehicle. The Legislature has taken the position by enacting this

section that the owner of the vehicle which is driven by a personliving with him “as a member of the family” cannot be heard to deny that the driver had the vehicle with his consent. Chagpar v. McNish (1986) (AB KB), 48 Alta. L. R. (2d) 91 (Alta. Q.B.) [106] The words of the provision are consistent with its public policy basis. That purpose is to protect persons who suffer losses asa result of the actions of those who are not the owner, but who are within a familial relationship with the owner which gives them greateropportunities for access to the owner’s vehicle. L.H. v.

J.W. 2003 ABQB 887 , [2005] 2 W.W.R. 449 (Alta. Q.B.) “Living as a Member of the Family” [107] It does not satisfy the “living as a member of the family” element of the provision that the driver is in fact related to theowner, even closely related. The driver must be living as a member of the family of the owner. [108] Neither is it determinative that the driver is in fact living in the owner’s residence. The driver must be living there in themanner that a member of the owner’s family would live there. Tataryn v. Berry and Berry (1980) 28 A.R. 265 (Alta. Q.B.) Gilchrist v.

Linau (1957) (AB KB), 23 W.W.R. 531 (Alta. D.C.) [109] It is not enough to satisfy the “as a member of the family” element: - that the head of the residence in question feels some responsibility for the welfare of the driver, - that the driver lived in the owner’s residence without paying room and board, or - that the driver was welcome to come to the owner’s residence whenever he wanted to. It is not necessary in order to satisfy the “as a member of the family” element that the owner stand in loco parentis to the driver. Paynter v. Wood [1970] B.C.J.

No. 333 (B.C.S.C.) [110] It is not necessary in order to satisfy the “as a member of the family” element that the driver and the owner be blood relativesor relatives “by marriage”. Chagpar v. McNish (1986) (AB KB), 48 Alta. L.R. (2d) 91 (Alta. D.C.)

[111] The family home is where the mother, father and children normally reside, and mere temporary absences do not alter thissituation. Casual and even frequent visits to a grandparents’ home whether it be for meals, the odd overnight stay, or other sojourns of apurely social or familial nature would not of themselves constitute living with or becoming a member of the family of the grandparents. MacCormack v.

Spin (1975) 12 A.P.R. 283 (P.E.I.S.C.) [112] The fact that a person is a relative and lives in the same house as the owner temporarily is not sufficient to make him an agentof the owner within [the provision]. He must be staying there “as a member of the family of the owner”. Hill v. Hughes and Noonan [1984] 149 A.P.R. 179 (P.E.I.S.C.) “Living with” [113] For the driver to be “living with” the owner, the arrangement must have a significant degree of permanency. It is not enough toconstitute the “living with” element that the driver is welcome to come to the owner’s residence whenever he wants to.

However, thatthe driver did not intend to live permanently with the owner does not mean he was not living with the owner at the time of the accident. Paynter v. Wood [1970] B.C.J. No. 333 (B.C.S.C.) [114] The “living with” element can be satisfied even though for most of the time the driver lives somewhere other than in theowner’s residence for the purposes of work or education, so long as the owner’s residence is his permanent residence. Tromba v. Hyrich (MB KB), [1947] 2 W.W.R. 559 (Man. K.B.) Martin v. MacLellan (AB KB), [1995] 4 W.W.R. 477 (Alta.

Q.B.) Features which go toward establishing that the driver was living with and as a member of the family of the owner: [115] In reaching the conclusion that the driver was living with and as a member of the family of the owner, courts have identifiedthese factors as the basis for that conclusion: Paynter v. Wood [1970] B.C. J.

No. 333 - that the driver was not staying in the residence as a boarder, - that the driver did not have an established home to which he would return, - that the driver went to the residence seeking the warmth and shelter of his own family, - that during the time he remained in the residence he had acquired the status of a member of the family unit, - that as a member of the family unit the owner’s vehicle was readily available to him to use even without the owner’s consent. Tataryn v. Berry and Berry (1980) 28 A.R. 265 - that the driver had no other home at the time he was staying in the residence. Chagpar v.

McNish (1986) (AB KB), 48 Alta. L. R. (2d) 91

- that there was an appearance of a family relationship presented to the public; that the public perceived the relationship to be thatof a family. Doll v. Taylor [1994] A.J. No. 487 (Alta. P.C.) - that the driver lived half the time in the home of the owner and half the time elsewhere, - that the driver was treated as a member of the family of the owner, - that the driver called the owner, “Mom” though he was not related to her (he was her daughter’s boyfriend), - that the driver gave the owner’s residential address as his for some purposes.

Onus of Proof [116] The onus of proving that the driver was living with and as a member of the family of the owner is on the Plaintiff. L.H. v. J.W. 2003 ABQB 887 , [2005] 2 W.W.R. 449 (Alta. Q.B.) Was Chad Kobelka living with Charles Skinty at the time of the accident? [117] Only two witnesses had close first-hand knowledge relevant to this question. These were Chad Kobelka himself and CharlesSkinty whose “evidence” is in the form of his statement to the insurance adjuster. [118] Chad Kobelka’s evidence at trial was that he was “living off and on at Mr. Skinty’s house”.

He did not give clear evidence asto how frequently he stayed at Mr. Skinty’s. He said he considered both Mr. Skinty’s house and his mother’s St. Albert house to be hisprincipal residences. [119] He identified the interruption to his having his own room in his mother’s house as having been at least part of the reason forhis staying at Mr. Skinty’s house some of the time in the fall of 2005. He testified that the interruption had ended by the time of theaccident. He again had a room at his mother’s house. [120] He testified that he also had a room at Mr.

Skinty’s – the room he had occupied several years earlier when he had lived withMr. Skinty during his mother’s absence in Saskatchewan. That room was still available to him. He had possessions there. [121] In contrast to his trial evidence, 10 days after the accident Mr. Kobelka told the insurance adjuster that he had been living fulltime with his mother for the past 2 years, that he had stayed at Mr. Skinty’s house the night of January 6 as a guest and that he hadsimilarly stayed at Mr. Skinty’s house frequently since the time that he lived there. [122] Mr. Skinty declared that at the relevant time Mr.

Kobelka was staying at his house no more than once a month. He disputedthat Mr. Kobelka had a room in his house and that he had any significant possessions there. He denied that Mr. Kobelka stayed in hisresidence the night of January 6, 2006. [123] If either Mr. Skinty or Mr. Kobelka had a motive to be untruthful in their statements or evidence, that reason was notsuggested in or established by the evidence before me.

[ 124 ] Mr. Kobelka was not a credible witness. As noted, he seemed unwilling to make the effort to remember things that were of no importance to him. I had the impression that he was not careful about the answers he did give. [ 125 ] His evidence was in some particulars inconsistent with that of other witnesses called by the Plaintiffs and the Defendants allied with them. For example, he said he spent Christmas 2005 at Mr. Skinty ’ s and was not in his mother ’ s house at Christmas that year. His grandmother, Ms. Duval, said he was at his mother ’ s house that Christmas when she was there.

Christmas was 2 weeks before the accident. [ 126 ] Mr. Kobelka was a drug abuser at the time of the accident. This affects the reliability of points of detail in his testimony. [ 127 ] Six witnesses had relevant direct knowledge which was more distant than that of Mr. Kobelka and Mr. Skinty. [ 128 ] Chad Eaglesham was a friend of Mr. Kobelka. He had visited Mr. Kobelka in Mr. Skinty ’ s house. His evidence was that Mr. Kobelka frequently stayed in Mr. Skinty ’ s house after he stopped living there when his mother returned from Saskatchewan. He testified that Mr. Kobelka stayed at Mr.

Skinty ’ s a couple of times a week over that period of several years. Mr. Eaglesham believed that in the time immediately before the accident Mr. Kobelka was living in both his mother ’ s house and Mr. Skinty ’ s house. He acknowledged he was not certain as to how frequently Mr. Kobelka stayed at Mr. Skinty ’ s house in the fall of 2005 because he himself was not around much that fall. He indicated that Mr. Kobelka used Mr. Skinty ’ s house as a flophouse when he was not welcome at his mother ’ s house. [ 129 ] Chris Thompson, Mr.

Kobelka ’ s mother ’ s partner, testified that Chad Kobelka was not living in his mother ’ s St. Albert home in the fall of 2005. He assumed he was living at Mr. Skinty ’ s house. The evidence suggested that Mr. Thompson himself was frequently not at the St. Albert house though he disputed the accuracy of that suggestion. He was also a drug user. He testified that his partner, Ms. Collins, Chad ’ s mother (also a drug user), would allow Mr. Kobelka into the house but when Mr. Thompson discovered him there he would remove him to Mr. Skinty ’ s house. [ 130 ] Mr. Thompson confirmed Mr. Kobelka ’ s evidence that Mr.

Kobelka had worked with him that fall. But whereas from Mr. Kobelka ’ s evidence one might conclude that this was a regular arrangement, Mr. Thompson ’ s evidence suggested that it was infrequent and occasional. That Mr. Skinty drove Mr. Kobelka to the work site sometimes, and that Mr. Thompson picked Mr. Kobelka up at Mr. Skinty ’ s to drive to work sometimes, is of greatly reduced significance to the question at hand if Mr. Kobelka ’ s working with Mr. Thompson was merely occasional. No evidence to establish exactly how often Mr. Kobelka worked with Mr. Thompson that fall was offered. [ 131 ] Ms.

Collins testified that Chad had a place to stay in her home at the relevant time. Nevertheless he had been required to leave in August 2005 when Children ’ s Services threatened to take her other two children away if Mr. Kobelka was in the home. From then on, she testified, he lived with Mr. Skinty. Her other children were removed from her home and care in late 2005 because of her need for rehabilitation from drug abuse. [ 132 ] I did not find Ms. Collins to be a reliable witness.

Though she testified that Chad Kobelka was not living in her home at the relevant time – that he had been kicked out in August 2005 – this was inconsistent with her own statement to the police at the time of the accident in which she said he had stayed in her home the night before the accident, and with the understanding she gave the social worker who interviewed her in early December 2005 that she was thinking of applying for a restraining order to have Chad Kobelka removed from her home but that he resided there at the time. [ 133 ] Mr. Michaud and his daughter both testified that they were regularly in Mr.

Skinty ’ s house as guests. They both testified that in the fall of 2005 they had been in the room that Chad had used when he lived there several years earlier and saw no indication that anyone was living in the room. They saw no possessions of anyone other than Mr. Skinty in the room either then or 10 months later when they cleaned out the room after Mr. Skinty ’ s death. [ 134 ] Ms. Harris lived in the basement of the Skinty home. She had seen Mr. Kobelka at the home on several occasions but did not have the understanding that he was living there.

[135] Counsel invited me to draw an inference adverse to the Skinty Estate from the fact that Mr. Michaud’s wife, who was Mr.Skinty’s niece, was not called to give evidence though she had been in his house frequently and had knowledge of his activities. If anyadverse inference is appropriate in that regard, one is similarly appropriate against the Plaintiffs and Defendants allied with them, arisingfrom the fact that a couple who lived in the Collins/Thompson St. Albert house throughout the relevant period was also not called totestify. These adverse inferences, if they are appropriate, would cancel each other. Adverse inferences have played no

part in mydetermination of the issue. [136] Having assessed this evidence I find that in the fall of 2005 up to the time of the accident Mr. Kobelka was at most a frequentguest in Mr. Skinty’s house. The frequency of his visits and overnight stays there was somewhere between once a month and a couple oftimes a week. The rest and bulk of the time he was staying elsewhere, either in his mother’s home in St. Albert or someplace notidentified in the evidence. [137] I find that Mr. Kobelka had no significant possessions in Mr. Skinty’s home. [138] His connection with Mr.

Skinty’s home was equivalent to, or less than, the connection of a student to his university residence. Mr. Skinty’s house was to him a place he could go when his drug abuse and other problems made it impossible for him to go to hismother’s home. As Mr. Eaglesham described it, Mr. Skinty’s house was his safehouse or flophouse. In Martin v. MacLennan (AB KB), [1995] 4 W.W.R. 477, Forsyth J. concluded, “A residence at college is not a home.” Similarly a drug users’flophouse is not a home. [139] I find that the frequency of his stays at Mr.

Skinty’s house at the time of the accident was not sufficient to permit theconclusion that he was living there. He was staying there when he needed to. [140] The evidence does support the conclusion that Mr. Skinty was very kind and generous to Mr. Kobelka, that he was concernedfor his welfare, and that he frequently went out of his way to help him. Mr. Kobelka was in need of a great deal of help. There werevery few healthy supportive relationships in his life. Mr. Skinty acted toward Mr. Kobelka in a manner consistent with his havingviewed himself and Mr. Kobelka to be members of the same family.

But the level of Mr. Skinty’s attentions to Mr. Kobelka and viceversa were of the type that frequently pass between family members who do not live together but are concerned for each other or whorely on each other. They do not justify the conclusion that, in his overnight stays in Mr. Skinty’s house, Mr. Kobelka was living with Mr.Skinty as a member of Mr. Skinty’s family. Conclusion [141] For these reasons I conclude that Chad Kobelka was not living with and as a member of the family of Charles Skinty at thetime the accident occurred. Heard on the 9th day of May 2011.

Dated at the City of Edmonton, Alberta this 10th day of August 2011. Brian R. Burrows J.C.Q.B.A.

Appearances: Constance I. Taylor, Q.C. and Thomas V. Duke for the Plaintiffs Stacey Dej for the Attorney General of Canada Barry R. Alloway for the City of Edmonton and Michael John Boyd Jerri L. Cairns and Chris B. Zelyas for the Estate of Charles Skinty (Deceased), and Gerard Michaud as Personal Representative of the Estate of Charles Skinty Bruce A. James for the Administrator of the Motor Vehicle Accident Claims Act on behalf of Chad James Kobelka