Holman v Oberg, 2016 ABQB 448

Court of Queen’s Bench of Alberta Citation: Holman v Oberg, 2016 ABQB 448 Date: 20160805 Docket: 1103 11263 Registry: Edmonton Between: Michael Joseph Holman and Her Majesty the Queen In Right of Alberta Plaintiffs - and - Vernon Oberg, Wizard Lake Marine Inc, James Wynne, Jessia Trueman, Preston Lebron, also known as Preston Lebraun, also known as Preston Lebrun and John Doe Defendants - and - Lester Holman and Catherine Holman Third Party Corrected judgment: A corrigendum was issued on August 16 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of W.S.

Schlosser , a Master of the Court of Queen’s Bench of Alberta _______________________________________________________ [1] This case is about a boat accident on Wizard Lake. [2] Michael Holman, son and Plaintiff, was sitting in a stationary pontoon boat at about 11:00 pm, on July 25, 2009. Oberg hit him in a boat owned by Wizard Lake Marine. He was taking it for a test run. Holman sued Oberg and Wizard Lake Marine (inter alia). Oberg and Wizard Lake Marine third-partied Holman’s parents, who were the owners of the pontoon boat. This is their application for

summary resolution of the third party claim. List of Authorities Applicants 1. Hryniak v Mauldin, 2014 SCC 7 2. Templanza v Wolfman, 2016 ABCA 1 3. Elkow v Sana, 2015 ABQB 803 4. Access Mortgage Corporation

(2004) Limited v Arres Capital Inc, 2014 ABCA 280 5. WP v Alberta, 2014 ABCA 404 6. Bank of Montreal v Cochrane, 2010 ABQB 541 7. Mackey v Squair, 2015 ABQB 329 8. Table of Public Statutes and Responsible Ministers, Vol III 195 2001 9. Atkinson (Guardian ad litem of) v Gypsea Rose (ship) et al, 2014 BCSC 1017 Respondents 10. Canada Shipping Act, SC 2011, c 26 11. Collision Regulation, CRC c 1416 12. Canada (Attorney General) v Lameman, 2008 SCC 14 13. Whitecourt Power Limited Partnership v Interpro Technical Services Ltd, 2014 ABQB 135 , 2014 ABQB135 14. 776826 Alberta Ltd v Ostrowercha, 2015 ABCA 49 15.

Windsor v Canadian Pacific Railway Ltd, l2014 ABCA 108 16. WP v Alberta, 2014 ABCA 404 17. Conrad v Snair, 195 Carswell NS 539 18. Vukorep v Bartulin, 2005 BCCA 142 19. Rodriguez v Shelter Canadian Properties Ltd, 1997 CarswellOnt 3536 20. Stein v The Ship “Kathy K”, (SCC), [1976] 2 SCR 802 21. Lennard’s Carrying Co v Asiatic Petroleum Co, [1915] AC 705 (HL) aff’g [1914]q KB 419 (CA) 22. Chamberland v Fleming, (ABQB) By the Court 23. Bazley v Currie (SCC), [1999] 2 SCR 534 24. Morgan v Launchbury [1971] 2 QB 245 (CA) 25. Morgan v Launchbury [1973] AC 127 (HL) 26.

Scott v Davis (2000) 175 ALR 217 (High Court of Australia) 27. Fridman, The Law of Torts in Canada, 3rd ed, Carswell p. 267-269 28. Tottrup v. Clearwater (Municipal District No. 99) 2006 ABCA 380 (parallel) 29. Brown, The Possibility of Inference Causation: Inferring Cause-in Fact and the Nature of Legal Fact-Finding

(2010) S S,McGill, LJ, 1

The Evidence [3] Both Catherine Holman and Lester Holman swore affidavits in support of the application. Lester Holman summarized and attached excerpts from the Questioning transcripts of Michael Holman and Vernon Oberg. The Holmans were not examined on their affidavits. It is not known whether they have been Questioned. The Facts [4] The Holmans’ pontoon boat had red and green navigational lights on the front, and a white anchor light on the back. The lights were not working at the time of the accident. This fact was not known to the Holmans.

Lester Holman had repaired the lights earlier in the year and had (then) insured that they were working. It is not known whether the lights, had they been working, would satisfy the lighting requirements prescribed by the Small Vessel Regulations under the Canada Shipping Act . [5] The Plaintiff was 28 at the time of the accident. He had consumed 10 cans of beer over the course of the day before going out on the boat. He went out once at about 9:00 pm but came back in after about 30-45 minutes.

He noticed the lights were not working so he took a flashlight for illumination, and he went out again. [6] He and a Ms.VanManen were out for an evening swim. The pontoon boat was not at anchor. It may have been stationary. It may have been drifting. There was no current. We do not know if there was any wind. Michael Holman was sitting in the captain’s chair having a cigarette when Oberg hit him. Ms. Van Manen was in the water. She was not injured. Some gaps in the Evidence [7] There are a number of gaps in the evidence and, consequently, some missing facts.

We do not know the length of the pontoon boat (which may have a bearing on the lighting requirements). We don’t know whether it was fully dark when the boats collided. The accident apparently happened at about 11:00 pm. I am going to take notice that sunset would have been about 10:00. Visibility would have been challenging by about 10:30. It may well have been fully dark by 11:00 but we don’t know. We don’t know whether there was a moon. [8] The Holmans were entertaining approximately 50 guests at a cottage housewarming that evening.

It was apparently a fine evening so the guests could be presumed to be inside and outside the cottage. Michael Holman was helping host the party. He said he brought his own beer. But both the Holmans swore they did not know their son had been drinking. Neither of them knew that the boat went out once, let alone twice that evening; which seems hard to believe without an explanation. The gist of their evidence is that they would not have let their adult son take the boat out in the dark without lights –especially if he was intoxicated. This is crucial but it seems contrived.

Atkinson (at para. 126) requires that the owner give consent to operate the vessel in the condition that it was in, in order to be liable. [9] We know that Michael Holman had not been given express permission that evening to use the boat but we do know that he had used it many times before.

There is no evidence about where the keys were, if there were keys, or who had access to them; something which is a typical feature of cases involving consent. [10] Lester Holman constructed the pontoon boat but nothing is known about its colour, whether it had reflective devices or anything that would help determine whether it was visible immediately before the accident. Vern Oberg said he didn’t see it. [11] Brown, J. in his days before the bench, wrote an

article about inference-based causation: ‘ The Possibility of Inference Causation’: Inferring Cause-in Fact and the Nature of Legal Fact-Finding, (2010) 55, McGill, LJ, 1. In it, (at p 13) he notes that a ready way to fill in gaps in the evidence, or to choose between competing versions of events is by ‘inference to the best explanation’. The quandary here is that the Holmans’ evidence seems scarcely believable without an explanation.

We could invent circumstances that would be supportive of it: (Michael had those 10 beers behind the woodshed, the Holmans were in bed by 9:00) but that is more than filling in the gaps. This goes beyond inferring causation and is beyond the role of the Court. This job falls to opposing counsel in this adversarial system. [12] Subject to the various evidentiary burdens, evidence that seems inherently implausible without an explanation might itself be a ground for declining to deal with a matter summarily.

All the court is saying is that there must be more to the story than meets the eye; to the extent that the Court is not confident that a fair and just determination can be made on the existing record. Implausibility itself might have the effect of lightening the respondent’s evidentiary burden but this is a high risk strategy and is all-or-none. The circumstances where it would not be preferable to cross examine will be rare.

The distinction is subtle but it is a question of the sufficiency of the evidence not a finding of credibility on affidavit evidence. [13] The Holmans evidence is highly self-serving – to the point that it seems tailored to fit the decided cases.

The respondent could have tested it but did not. [14] Although I am prepared to accept at face value the Holmans’ uncontested evidence that they did not know that their son had been drinking heavily on the day of the accident, that they did not know lights were not working, or that the boat had gone out, I infer that there was at least implied consent to use the boat that night; though not in its actual condition, which was unknown to the Holmans. Liability [15] There is no equivalent to section 187(2) of the Traffic Safety Act, RSA 2000 c. T-6, in the maritime world, imposing statutory

vicarious liability on the owner of a vessel. Ownership of a vessel, itself, is not (as yet) sufficient to establish liability: Chamberland (para 16 ). [16] Under old section 647 (2) of the Canada Shipping Act , in order for an owner to escape liability, she had to show an absence of ‘actual fault or privity’. Stein v The Ship “Kathy K ”, citing Lennard’s Carrying Co v Asiatic Petroleum Co per Vicount Haldane, LC. [17] Section 647(2) was repealed in 2001. In Conrad v Snair , a pre-repeal case, the Nova Scotia Court of Appeal summarized an owner’s duties and liabilities: The owner’s responsibilities divide into three principal categories:

(1) The ship must be seaworthy in the sense of being fit for the intended voyage, in good repair and properly equipped , and safe for those on board.

(2) The ship must be provided with proper navigational aids including current charts, rules and information. (The Norman, The Eurysthenes, The England, The Thordoc, The Marion).

(3) The ship must be properly and competently staffed. (The Lady Gwendolyn, Vaccher, The Alastor, The Eurysthenes, Dollina Enterprises, The Thordoc) The objective standard of the ordinary reasonable shipowner makes the owner responsible for the competence, as opposed to the negligence, of the master and crew. Liability of the master and each crew member is always limited, in the same degree as that of the owner.

This limitation is separate and distinct from, and based on different policy considerations than, the limitation of the owner’s liability and applies “whether with or without his actual fault or privity.” These concepts are relatively free of difficulty when the owner and the master or crew member are different individuals. The Canada Shipping Act does not specifically refer to the owner who is also the master. An individual who suffers damages as the result of marine casualty has the right to pursue his or her remedies against either the owner or the master or against both of them.

There can be no difference in principle whether the owner and the master are two individuals or one individual in two capacities. [18] This approach was endorsed by the British Columbia Court of Appeal in the post-repeal decision: Vukorep v Bartulin . In that case, the Court, after quoting Conrad v Snair , said: [20]The case authorities establish that owners must show they were themselves in no way in fault that was causative of what occurred: ...

Lowry J, as he then was, said that an owner: ...must discharge what is a heavy burden of proving that the person or persons who represented its managing or directing mind were not at fault in any way that was at all causative of the loss: there must have been no failure to do what ought to have been done. The standard of care is not one of perfection; it is rather one of what would be done by a reasonable owner. Analysis

i) Direct Liability [19] I am going to assume for this part that the flashlight-lit pontoon boat belonging to the Holmans did not meet the lighting requirements under the Small Vessel Regs (SOR/210-91). I am also going to assume that it was fully dark at the time of the accident. [20] While I may regard, with some scepticism, the Holmans’ evidence about not knowing that the boat went out, the Plaintiff was an adult who had implied consent to use the boat. The Holmans did not know that the navigation lights were not working. No other breach of the Canada Shipping Act regulations has been made out.

In my view, Michael Holman’s decision to take out the boat for the second time, at night, in its unlit condition, broke the chain of responsibility to the owner (eg Mackey v Squair at para. 28 ). Although, at the time of the accident the vessel was in breach of the first principal category of duties, summarized in para. 17 (above). The evidence discloses no ‘actual fault or privity’ on the part of the owners. As such, the Holmans have met the heavy onus imposed on them by Maritime Tort Law. [21] I acknowledge that it is not enough for an owner simply to show that they are not in the direct chain of causation.

I also acknowledge that if they are at fault, even to one percent as a joint tortfeasor, that may justify keeping them in the lawsuit. However, their position, on direct liability, is unassailable on the evidence presently before the court. ii) Common Law Vicarious Liability [22] Common law vicarious liability is nothing more than imposing liability on an innocent person for another person’s wrong. The most familiar example is the liability of an employer for some acts of her employee. [23] There are various policy reasons for common law vicarious liability; one of which is to provide a sound source of recovery.

Another is to modify behaviour. To borrow a line from the French Admiralty: pour encourager les autres ; [1] the element of using someone as an example to encourage others to better performance. [24] The theoretical underpinning for vicarious liability for the use of chattels appears to be based on a principle of agency (though not in the contractual sense). Some look to the broad language in cases such as Bazley v Currie , together with attempts at other jurisdictions to expand common law vicarious liability and predict that the doctrine is expanding (eg, Fridman, The Law of Torts) .

Lord Denning, tried this with the family car in Morgan v Launchbury (Megaw, LJ dissenting), but was overturned by the House of Lords on the grounds that this is really a matter for legislation. The topic came up more recently for aeroplanes in the Australian case of Scott v Davis (2000) 175 ALR 217. Common law vicarious liability in that setting was rejected, though with a strong dissent by McHugh, J. [25] Maritime law now lies somewhere in-between direct and vicarious liability.

While the law does not impose vicarious responsibility per se , it does require an absence of actual fault or privity on the part of the owner.

To impose it in this context also seems contrary to the idea that the ‘captain is the master of the vessel’ and also, more recently, the requirement of all pleasure boat operators to pass a test and be licensed; both of which suggest an emphasis on the individual responsibility of the operator, rather than that of the owner. [26] Whatever course is charted for pleasure boat owners by the common law, or by Parliament in the future, the Holmans’ vicarious responsibility for Michael Holman’s acts is not for this case or this time.

Disposition [27] The third party claim is dismissed with costs of the application and the action. Heard on the 02 nd day of May, 2016. Dated at the City of Edmonton, Alberta this 5th day of August, 2016. W.S. Schlosser M.C.C.Q.B.A. Appearances: Anthony Espejo McLennan Ross LLP for the Applicants, Lester Holman and Catherine Holman Shad Chapman Brownlee LLP for the Respondents, Vernon Oberg and Wizard Lake Marine Inc _______________________________________________________ Corrigendum of the Reasons for Judgment

of W.S. Schlosser W.S. Schlosser, a Master _______________________________________________________ The Citation Number has been changed. At paragraph 25 a hyphen has been added to the word in-between. At page 6 in the footnote emphasis has been added to Candide. [1] "Dans ce pays-ci, il est bon de tuer de temps en temps un admiral pour encourager les autres "