r v. J.M., 2014 NBCA 73

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 17-14-CA GEMMA LEBOUTHILLIER APPELLANT GEMMA LEBOUTHILLIER APPELANTE- and - - et -J.M. BASTILLE INC., a corporation andCLAUDE BOUDREAU RESPONDENTS J.M. BASTILLE INC., une corporation et CLAUDEBOUDREAU INTIMÉSLeBouthillier v. J.M. Bastille Inc. and Boudreau, 2014NBCA 73 LeBouthillier c. J.M.

Bastille Inc. et Boudreau, 2014NBCA 73CORAM: The Honourable Justice Deschênes The HonourableJustice Bell The Honourable Justice Quigg CORAM : l’honorable juge Deschênes l’honorable juge Belll’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: November 12, 2013 Appel d’une décision de la Cour du Banc de la Reine : le 12 novembre 2013History of Case: Historique de la cause :Decision under appeal: 2013 NBBR 381 , 2013NBQB 381 Décision frappée d’appel : 2013 NBBR 381 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.Appeal heard: September 18, 2014 Appel entendu : le 18 septembre 2014Judgment rendered: December 18, 2014 Jugement rendu : le 18 décembre 2014Reasons for judgment by: The Honourable Justice Deschênes Motifs de jugement : l’honorable juge Deschênes Concurred in by: The Honourable Justice Bell The Honourable JusticeQuigg Souscrivent aux motifs : l’honorable juge Bell l’honorablejuge Quigg Counsel at hearing: Gemma LeBouthillier appeared in person For therespondents: Blair C.

Fraser Avocats à l’audience : Gemma LeBouthillier a comparu en personne Pour lesintimés : Blair C. Fraser

THE COURT The appeal is allowed and the Court orders that a newtrial be held before a different judge. The appellant willnot be entitled to any costs. LA COUR L'appel est accueilli et la cour ordonne la tenue d'unnouveau procès devant un autre juge. L'appelante n'auradroit à aucuns dépens. English version of the decision of the Court delivered by JUSTICE DESCHÊNES I.

Introduction [1] Late in the afternoon on June 24, 2004, the appellant, Gemma LeBouthillier, sustained injuries when the car shewas driving went off the road while she was trying to pass a tractor-trailer travelling southbound on Route 11 near Losier Settlement. [2] Although the appellant has no recollection of the circumstances surrounding the accident, she called MichelGionet, who was following her closely in his car, as a witness. He testified the driver of the tractor-trailer, the respondent ClaudeBoudreau, had clearly signalled his intention to make a right turn into a merchant’s lot, and at the time Ms.

LeBouthillier was attemptingto pass in the left-hand lane (east side), the tractor-trailer had to occupy a large part of the lane to its left to make its turn into the entranceto the right. He testified that at this exact moment, while attempting to avoid a collision with the tractor-trailer, Ms. LeBouthillier lostcontrol of her car and ultimately ended up in a ditch on the west side of Route 11. [3] Mr. Boudreau, on the contrary, says Ms. LeBouthillier tried to pass him on the right (west side) while he wasmaking a right turn into a merchant’s lot.

He says he signalled his intention to turn right well before turning into the entrance. He admitsthat he encroached on the left-hand lane out of necessity before making his turn. He says that he saw Ms. LeBouthillier’s car on hisright, alongside his cab, when he was making his right turn. Finally, he claims that Ms. LeBouthillier lost control of her car while tryingto avoid a collision with the truck and then ended up in a ditch south of the entrance in question. II.

Trial judge’s de cision [4] The trial judge, whose judgment is published at 2013 NBBR 381 , 2013 NBQB 381, 412 N.B.R. (2d) 233, declined to apportion liability between the parties for the following reasons: [TRANSLATION] There are, therefore, two possible scenarios to explain how this accident happened, namely that the plaintiff passed the defendant on theright or on the left. I saw nothing in the evidence to lead me to believe Michel Gionet’s testimony to the detriment of Claude Boudreau’stestimony; in my view, both versions are plausible and the testimony of both witnesses is credible.

There is no other oral or written evidence in this case regarding the events that led to this accident. I, therefore, cannot determine onwhich side the plaintiff passed the defendants’ Freightliner. [paras. 25-26] [5] Viewing himself as unable to rule on the degree of the parties’ respective fault due to the credibility of the twowitnesses, who had recounted diametrically opposed versions of the events surrounding the accident, the trial judge dismissed Ms.LeBouthillier’s action for the following reasons: [TRANSLATION]

The plaintiff’s burden of proof in establishing liability and damages remains the same, despite the fact that she appeared without alawyer to represent her. For the above reasons, I find that the plaintiff was unable to meet her onus of establishing on a balance of probabilities that thedefendants are liable for this accident and for her damages. [paras. 27-28] III. Analysis and decision regarding liability for the accident [6] In my opinion, the trial judge erred in law when he dismissed Ms. LeBouthillier’s action due to her failure to meetthe burden of proof. In ruling this way, the trial judge held Ms.

LeBouthillier accountable for his own adjudicative failure. In my view, asthe trier of fact, he had a duty to consider the apportionment of liability issue, which he did not do in this case. In fact, he remained silenton the core issue of the liability of one party or the other, or both of them, for this accident. He had a duty to determine whether bothparties were at fault and then to determine the degree to which their respective fault contributed to the damages. On this specific point, Itake the liberty of quoting the comments of the Court of Appeal for Ontario in Waring v. Jarvis, [1956] O.J.

No. 246 (C.A.) (QL), with which I concur, despite their age. This decision is relevant not only in relation to the duties of a trialjudge, but also in connection with the application of the Contributory Negligence Act, R.S.N.B. 1973, c. C-19 (the Act). The principlesthat emerge from Waring v. Jarvis have also been applied in more recent judgments, such as Martin-Vandenhende v. Myslik, 2012ONCA 53, [2012] O.J. No. 346 (QL) and Aujla v. Hayes, (ON CA), [1997] O.J.

No. 2263 (C.A.) (QL): The questions of fact which the trial Judge was called upon to consider in order to determine the liability, if any, in this case, were these:Was there negligence on the part of the defendant? Was there negligence on the part of the plaintiff? Or, was there negligence on the partof both of them? It was his function and his duty to say what negligence, if any, caused this accident.

He did not approach theconsideration of the evidence from that viewpoint, nor did he have those questions in mind. […] […] [W]hen he concluded his judgment he showed quite plainly the reason why he was dismissing the action and dismissing thecounterclaim. He said: “I have indicated the reason why I feel I should not apply

section 5 of The Negligence Act, because I do notaccept the plaintiff’s story nor the defendant’s story.” The

interpretation which is reasonably placed upon the words of the learned trialJudge is that because he did not accept the evidence given by the plaintiff, and because he did not accept the evidence given by the defendant,therefore the case for the plaintiff fails, and the counterclaim for the defendant likewise fails. That obviously is wrong in law. It was theduty of the learned trial Judge not only to consider and weigh the evidence of the plaintiff and the defendant, it was his duty also toweigh all other evidence to see whether or not from all the evidence he could make the necessary findings of fact.

The learned trialJudge, with great respect to him, has simply done this: He has said, “I cannot believe either the plaintiff or the defendant; therefore letsome other Court decide who is responsible for the damages claimed.” It is not the function of the Court of Appeal to make findings offact in the first instance; that is the function of the trial Judge sitting as a tribunal of fact; that is what would have been done by a jury andshould have been done by the trial Judge without a jury. [para. 4] [Emphasis added.] [7] The following comments, taken from the judgments in Aujla and Myslik, focus on the principles articulated inWaring v.

Jarvis: Courts in this province and elsewhere have emphasized the need to determine that both parties are at fault before this

section can have

application, and have emphasized the trial judge’s obligation to reach a conclusion on the evidence whether it was the negligence of oneparty or the other, or both of them, that caused the accident: Waring v. Jarvis, [1956] O.W.N. 661 (C.A.); Morrow v. McNeil, [1957] O.W.N. 254 (C.A.); Binda v. Waters Construction Co. Ltd. and Hunchuk (1960), (MB CA), 24 D.L.R. (2d) 431 (Man.C.A.). [para. 31: Aujla]. A trial judge has an obligation to make factual findings on conflicting evidence with respect to material facts that were essential to aproper determination of the issues before him or her.

As Denning L.J. observed, in Jones v. National Coal Board, [1957] 2 Q.B. 55, at p.64, it is the judge’s role “at the end to make up his mind where the truth lies.” This Court expressed a similar sentiment a year earlierwhen it said that a trial judge “must make the findings of fact that enable the Court to say whether or not there is liability involved”: see Waring v. Jarvis, [1956] O.J. No. 246 (C.A.), at paras. 4-5. See also Aujla v. Hayes (1997), 100 O.A.C. 129 (C.A.), at para. 31.

The fact-finding exercise in itself brings a certain discipline and rigour to a trial judge’s analysis of theevidence and guards against imprecise thinking and the risk of a case being decided on the basis of facts that were not actually found.[para. 15: Myslik] [8] It is useful here to set out the relevant provisions of the Act.

Liability when fault divided 1(1) Where by the fault of two or more persons damage or loss is caused to one or more of them, the liability to make good the damageor loss is in proportion to the degree in which each person was at fault but if, having regard to all the circumstances of the case, it is notpossible to establish different degrees of fault, the liability shall be apportioned equally. […] Determination of fault 2 Where damage or loss has been caused by the fault of two or more persons, the court shall determine the degree in which each personwas at fault.

Fault and damages are questions of fact 5 In an action, the amount of damage or loss, the fault, if any, and the degrees of fault are questions of fact.

Responsabilité en cas de faute commune 1(1) Lorsqu’un dommage ou une perte ont été causés par la faute de deux ou plusieurs personnes à l’une ou à plusieurs d’entre elles, laresponsabilité de réparer ce dommage ou cette perte est proportionnelle à l’importance de leurs fautes respectives.

Cependant, si lescirconstances de l’affaire ne permettent pas d’établir les divers degrés d’importance de leurs fautes, la responsabilité se partage à partségales. […] Détermination de la faute 2 Lorsque le dommage ou la perte ont été causés par la faute de deux ou plusieurs personnes, le tribunal détermine l’importance relativede la faute de chacune.

Faute et dommages : questions de fait 5 Dans toute action, l’étendue du dommage ou de la perte, la faute, le cas échéant, et l’importance relative de la faute de chacun sont desquestions de fait. [9] In short, the trial judge erred in law when he failed to make the essential findings of fact that would have allowedhim to determine the core issue before him, namely the apportionment of liability for the accident.

On balance, if, after finding that bothparties are at fault, the circumstances surrounding the accident are such that the trial judge cannot determine the parties’ degree of liability, then he has a duty to apportion liability equally. [10] In this case, the appellant argued her case without the assistance of a lawyer, and I would have preferred toconsider the liability apportionment issue in order to hand down the decision that ought to have been rendered (see Rule 62.21(1)).However,

section 5 of the Act provides that fault and the degrees of fault are questions of fact. In my view, the court of first instance is ina better position to determine this type of question (see Rule 62.21(10)(a)). These questions of fact should, therefore, be referred back tothe Court of Queen’s Bench for determination by another judge. IV. Issue of damages [11]

Section 5 of the Act also provides “the amount of damage or loss […] are questions of fact”. This being the case,this Court has to show restraint with respect to the trial judge’s findings as to the injuries sustained by the appellant and the amount ofdamages attributable to the respondents. In short, this Court can intervene only where there has been a palpable and overriding error inthe assessment of the evidence. The standard of review was articulated in Gallant v. Thibodeau (1998), (NB CA),206 N.B.R. (2d) 336, [1998] N.B.J. No. 445 (C.A.) (QL), summarized in McAdam et al. v.

McIlveen et al., 2002 NBCA 55, 252 N.B.R.(2d) 35 and recently confirmed in Reid v. Hatty, 2005 NBCA 5, 279 N.B.R. (2d) 202. Drapeau J.A. (as he then was) gave the followingexplanation at para. 21 of the judgment in McAdam:

In Gallant v.

Thibodeau (1998), (NB CA), 206 N.B.R. (2d) 336, 526 A.P.R. 336 (C.A.), the majority held that, absent some material error of law in the trial judge’s analysis or some palpable and overridingerror in his or her assessment of the evidence, this Court can intervene and substitute its own finding in respect of liability if, and only if,the trial judge’s conclusion on the subject is unreasonable, in the sense that nothing in the record could have justified it. [para. 21] [12] In this case, the trial judge made a palpable and overriding error in his assessment of the evidence and an error oflaw that had obvious consequences for the assessment of the damages.

A. Palpable and overriding error in the assessment of the evidence [13] In her Statement of Claim, Ms. LeBouthillier asked the Court to award her pecuniary and non-pecuniary damagesfor numerous injuries, including [TRANSLATION] “jaw pain and problems” and “TMJ”. [14] The complainant has always maintained this injury resulted from the impact of the airbag striking her in the mouthafter it deployed during the accident. The evidence reveals she was still complaining of jaw pain and receiving treatments from aregistered massage therapist six months after the accident.

In fact, in February, 2005, and March and April, 2006, the massage therapistnoted that Ms. LeBouthillier complained of jaw pain and of jaw “joint” problems. In April, 2006, the massage therapist wrote thefollowing in this regard on Ms. LeBouthillier’s behalf: [TRANSLATION] I can see during the postural assessment and manipulation of the upper limbs that the left side has become elongated, (opens the musclesof the jaw joint) and that unlike the left side, the right side has suffered a sprain, resulting in contraction of the neck muscles. [Emphasis added.] [15] Ms.

LeBouthillier also received treatment from several healthcare professionals (her family doctor, dentists) fortemporomandibular joint (TMJ) syndrome in the years following the accident; those professionals link this problem to the accident andMs. LeBouthillier has followed their advice in an attempt to relieve the related discomfort. [16] The trial judge chose to accept the medical evidence of an expert who met with Ms. LeBouthillier eight years afterthe accident for an examination requested by the respondents.

That medical expert refused to see a causal connection between the accident and the temporomandibular joint problemsfrom which Ms. LeBouthillier still appears to suffer. However, he did acknowledge that Ms. LeBouthillier might have suffered[TRANSLATION] “from temporary temporomandibular joint problems caused by the impact of the airbag”, although it was likely theseproblems had ended by July 2005, slightly more than a year after the accident.

The same expert also said that if there are still problemsnow, they are probably attributable to the negligence of a dentist who treated the appellant to relieve her joint problems, or possibly toheredity. [17] Despite the testimony of the appellant and massage therapist, the trial judge obviously failed to mention thosepieces of evidence in connection with the appellant’s jaw joint problems when he ruled that: [TRANSLATION]

Considering the totality of the evidence and the testimony of Dr. Jean LeBlanc, Dr. Allain Audet and Dr. D.D. Smith, I find that the plaintiff’s pre-existing medical conditions were not exacerbated and that the injuries to her jaw and her TMJ are not related to the accident on June 24, 2004.

Accordingly, the only physical injuries the plaintiff sustained as a result of the accident on June 24, 2004, are neck pain (sprain); back pain (sprain); pain in both knees; pain in the fingers and hands, and panic (anxiety) attacks and psychological problems. [paras. 59-60] [ 18 ] In ruling this way, the trial judge clearly did not give any weight to the evidence that the appellant was struck in the face during the accident, that she reported jaw joint problems following the accident and that she continues to receive treatment for that discomfort even today.

In my opinion, the fact that the trial judge failed to mention this evidence is a palpable and overriding error in that it could have had an impact on his decision as to the causal connection between the accident, the jaw injuries and the related claims. B. Error of law with respect to pecuniary damages [ 19 ] The evidence reveals the appellant was unable to go back to work for a period of approximately two to three weeks due to the injuries she sustained in the accident. Instead of being left without income during this time, she opted to take vacation days she was owed.

The trial judge ruled as follows on this very point: [TRANSLATION] The plaintiff did not go to work for a period of two to three weeks after the accident on June 24, 2004, but this was taken as vacation time, so her salary was paid. Considering the totality of the evidence, the plaintiff was therefore unable to establish that she suffered past income loss attributable to the accident on June 24, 2004. [paras. 68 and 75] [ 20 ] Of course, the appellant used vacation days as a period of convalescence and not as vacation time.

In this context, she lost vacation time, which has a definite value, a value equivalent to the workdays she missed while she was convalescing for two to three weeks. V. Disposition [ 21 ] For all of these reasons, the appeal is allowed without costs. However, the appellant is entitled to her disbursements, which I estimate at $1,500. On the other hand, the appellant never paid the respondents an equivalent amount following a previous motion this Court dismissed.

Accordingly, the appellant is relieved of her duty to pay the amount still owing to the respondents, but will not receive the amount owing for her disbursements. [ 22 ] The appellant will be entitled to a new trial before a different judge, with respect to both liability and pecuniary and non-pecuniary damages. Of course, the new judge is not bound by the findings or comments of the trial judge or of this Court with respect to the circumstances surrounding the accident or to the resulting damages or losses.