2015 NBCA 8, 2015 NBCA 8

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 80-14-CA ROBERT CHIASSON APPELLANT ROBERT CHIASSON APPELANT - and - - et - DUGUAY HOLDINGS INC., (a corporation) and ONILE DUGUAY RESPONDENTS DUGUAY HOLDINGS INC., (une corporation) et ONILE DUGUAY INTIMÉS Chiasson v. Duguay Holdings Inc. and Duguay, 2015 NBCA 8 Chiasson c.

Duguay Holdings Inc. et Duguay, 2015 NBCA 8 CORAM: The Honourable Justice Deschênes The Honourable Justice Richard The Honourable Justice Bell CORAM : l’honorable juge Deschênes l’honorable juge Richard l’honorable juge Bell Appeal from a decision of the Court of Queen’s Bench: June 3, 2014 Appel d’une décision de la Cour du Banc de la Reine : le 3 juin 2014 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: November 17, 2014 Appel entendu : le 17 novembre 2014 Judgment rendered: January 29, 2015 Jugement rendu : le 29 janvier 2015

Reasons for judgment by: The Honourable Justice Deschênes Motifs de jugement : l’honorable juge Deschênes Concurred in by: The Honourable Justice Richard The Honourable Justice Bell Souscrivent aux motifs : l’honorable juge Richard l’honorable juge Bell Counsel at hearing: For the appellant: J. Denis Boudreau For the respondents: Rémy Boudreau Avocats à l’audience : Pour l’appelant : J. Denis Boudreau Pour les intimés : Rémy Boudreau THE COURT The appeal is dismissed. LA COUR L'appel est rejeté. Court’s reasons for judgment delivered by JUSTICE DESCHÊNES I.

Background [ 1 ] On November 18, 2006, the appellant, Robert Chiasson, was injured when he fell off of a ladder after the two-level scaffolding against which he had leaned it collapsed. The appellant claims the fall and resulting knee injury were caused by the respondent, Onil Duguay, who was negligent in failing to observe the appropriate safety standards when he assembled the scaffolding. [ 2 ] There are two opposing versions of the circumstances surrounding the accident.

The appellant submits that two-level scaffolding that complies with safety standards should have four safety rods (cross-bracing), two on each side, to reinforce the structure of the scaffolding. In this case, however, the appellant maintains there was only one per level. Conversely, the respondents contend the scaffolding was equipped with two safety rods per level.

They argue the appellant fell because, without the respondents’ approval or knowledge, he leaned the ladder against one of the safety rods, which bent under the weight of the appellant, a man weighing nearly 250 pounds, causing the scaffolding to collapse. The ladder the appellant had climbed then slid because the scaffolding had collapsed and the appellant fell, injuring his knee.

[ 3 ] Only the appellant, the respondent, Onil Duguay, and the respondent’s son, Daniel Duguay, testified at trial. The trial judge stated that he was impressed by the eagerness of all the witnesses to tell the truth. He found the respondent’s testimony to be [TRANSLATION] “credible” (para. 32) and asserted that Daniel Duguay’s testimony was [TRANSLATION] “credible and reliable” (para. 33).

He added that [TRANSLATION] “[a]ll of the gaps in the credibility of the defendant [respondent] that counsel for the plaintiff [appellant] is careful to point out are, to my mind, filled in by Daniel Duguay’s testimony” (para. 33). The trial judge was also impressed by the appellant’s testimony, stating that it appeared to him to be [TRANSLATION] “credit-worthy” (para. 35) and sincere. II.

Analysis [ 4 ] In determining a liability-related issue, the trial judge has to decide which version of the events is the most plausible having regard to the totality of the evidence. [ 5 ] In this case, in determining the issue referred to him by the parties, namely the apportionment of liability for this accident, the trial judge reviewed the evidence as a whole and the case law on the criteria that should be considered in assessing the credibility of witnesses.

After a thorough analysis, the trial judge came to the following conclusions [TRANSLATION]: I am not convinced that the defendant created an objectively unreasonable risk of injury to the plaintiff. Based on the evidence, which I accept, the defendant had certainly not built the scaffolding for use by the plaintiff. The defendant had put up scaffolding that he wanted to be safe enough for use by his son and himself. Onil Duguay knew very well the importance of putting up safe scaffolding.

I am satisfied by the evidence that the defendant had put up reasonably safe scaffolding for reasonable use by him and his son. Based on the evidence, I consider the versions of the facts given by the defendant and his son to be reasonably plausible. I note that the plaintiff did not prove on a balance of probabilities that the aforementioned minimum prescribed standards were breached. I can neither find nor infer, based on the evidence, that the scaffolding was not level as the plaintiff suggests. There is no evidence for such a finding. The same applies to the number of cross supports.

I cannot find that the scaffolding was not equipped with the required number of safety rods (cross-bracing) on each level. In short, I am not prepared to infer that the prescribed standards must have been breached because the scaffolding collapsed. I also cannot ignore the defendant’s testimony that the plaintiff climbed a ladder that had been placed directly on one of the safety bars, which is certainly a piece of evidence that may explain why the scaffolding collapsed, especially considering the plaintiff’s weight.

In short, looking at the totality of the evidence, I find that the plaintiff did not meet his onus of proving the defendants’ liability for his fall on November 18, 2006. Instead, I find that the plaintiff himself created the risk associated with the use of the ladder under the circumstances when he used it without making sure that he could do so safely and without danger. I, therefore, find that the defendants’ liability has not been established, and the plaintiff’s action is dismissed.

Based on the totality of the evidence, I find that the plaintiff has not met his onus of proving that the defendants are liable in this case. [paras. 40 to 46] [ 6 ] Essentially, the trial judge ruled, based on the credibility of the witnesses and the reliability of their testimony, that the most plausible version of the events was that of the respondents and, therefore, the respondents were not liable for the accident.

This being the case, he found the appellant alone was liable for his fall and the resulting injuries. [ 7 ] The trial judge’s credibility and reliability-related findings deal with questions of fact and we, therefore, owe them deference.

[8] The trial judge’s fault-related finding also deals with a question of fact.

Section 5 of the ContributoryNegligence Act, R.S.N.B. 1973, c. C-19 (replaced by s. 4 of the Contributory Negligence Act, R.S.N.B. 2011, c. 131), provides that: 5. In every action the amount of damage orloss, the fault, if any, and the degrees of faultare questions of fact 5. Dans toute action, le montant du dommageou de la perte et, le cas échéant, la faute etl’importance relative de la faute de chaqueresponsable sont des questions de fait.

This being the case, the standard of review on appeal prevents us from intervening absent a material error of law in the trial judge’sanalysis or a palpable and overriding error in his assessment of the evidence. [9] As Chief Justice Drapeau explained in McAdam et al. v. McIlveen et al., 2002 NBCA 55, 252 N.B.R. (2d) 35,recently confirmed in Reid v. Hatty, 2005 NBCA 5, 279 N.B.R. (2d) 202: 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 overriding error in his or her assessment of theevidence, this Court can intervene and substitute its own finding in respect of liability if, and only if, the trial judge’s conclusion on thesubject is unreasonable, in the sense that nothing in the record could have justified it. [para. 21] In my view, there is sufficient evidence in the record to justify the trial judge’s findings as to both the credibility of the witnesses andliability for this accident.

III. Disposition [10] For these reasons, the appeal is dismissed with costs, which are set at $2,500. ____________________________________ Alexandre Deschenes, j.c.a. NOUS SOUSCRIVONS À L’AVIS ____________________________________ J.C. Marc Richard, j.c.a. _____________________________________ B. Richard Bell, j.c.a.