CANADIAN PACIFIC RAILWAY COMPANY PLAINTIFF - v. -, 2023 SKKB 10

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 10 Date: 2023 01 13 Docket: QBG-RG-00147-2020 Judicial Centre : Regina BETWEEN: CANADIAN PACIFIC RAILWAY COMPANY PLAINTIFF - and - DIRECT GENERAL PARTNER CORPORATION, CANADA CARTAGE SYSTEM LIMITED PARTNERSHIP, CANADA CARTAGE DIVERSIFIED GP INC., ABC CORP., JANE DOE AND THOMAS HENDERSON DEFENDANTS Counsel: Deron A. Kuski, K.C. and Bennet W. Misskey for the plaintiff Steve M. Scarfone for the defendants JUDGMENT LAYH J.

JANUARY 13, 2023 INTRODUCTION [ 1 ] It was approximately 4:45 a.m. on January 30, 2018, when a transport truck driven by Thomas Henderson collided with a petroleum railcar reversing on the railway tracks at the intersection of Regina’s Ring Road and the Canadian Pacific Railway [CPR] rail line south of the Co-op refinery. The train, moving at approximately five miles per hour, was carrying 36 diesel “Procor” cars loaded at the refinery. The level crossing was equipped with standard crossbucks. Neither party disputes that red lights were flashing at the railway crossing when Mr.

Henderson proceeded into the intersection. The approaching railcar struck the transport truck on the passenger’s side and dragged it down the railway tracks approximately 40 to 50 feet. The railcar and railway infrastructure were damaged. So was the truck owned by the defendant, Canada Cartage System Limited, which together with Mr. Henderson will be referred to as the defendants. [ 2 ] The issue before me is whether CPR’s

summary judgment application can determine its claim for damages against the defendants.

THE PROCEEDINGS [ 3 ] On January 15, 2020, CPR commenced an action against the defendants, two weeks before the limitation period expired. It alleged that Mr. Henderson’s negligence caused $645,149.25 of damages. On April 28, 2020, the defendants defended against the claim and counterclaimed for damages to the truck.

In its defence, the defendants denied any negligence and alleged contributory negligence against CPR because CPR failed to have a crew member on the lead car to warn persons crossing the track of the approaching train. [ 4 ] CPR defended against the counterclaim, stating it had not breached a standard of care that it owed and that The Limitations Act, SS 2004, c L-16. 1 barred the defendants’ counterclaim. [ 5 ] By notice of application and supporting affidavit of Christine Krushel, Claims Representative at CPR, filed October 1, 2021, CPR sought

summary judgment against the defendants.

On November 2, 2021, following Practice Directive # 9, Justice Klatt granted a consent order setting out the anticipated steps to bring the application forward, namely that: 1) the defendants’ affidavit evidence be served and filed by January 17, 2022; 2) the plaintiff’s reply affidavit evidence be served and filed by February 28, 2022; 3) cross-examination on affidavits happen before March 31, 2022; 4) briefs be filed before April 30, 2022; 5) reply briefs be filed before May 10, 2022; and 6) the matter to be returned to chambers on May 12, 2022 to ensure compliance and ready the matter to proceed to hearing. [ 6 ] The defendants filed the following affidavits: affidavit of Thomas Henderson on February 7, 2022; affidavit of Katryna Crocker (Adjuster for Manitoba Public Insurance) on February 7, 2022; affidavit of Joel Ramcharan (Claims Adjuster “with a speciality in the area of railway insurance claims”) on February 14, 2022. [ 7 ] In response, CPR filed an affidavit of Simone Scott, Claims Manager at CPR, on February 17, 2022. (This affidavit is identical in its averments to the earlier filed affidavit sworn by Ms.

Krushel and was sworn only because Ms. Krushel no longer held the position of Claims Manager at CPR.) [ 8 ] Although the deadline for CPR’s filing of further affidavits had passed by February 28, 2022, CPR filed two further affidavits, one from Garry Rosin, Senior Manager in Signals Design at CPR, filed on March 10, 2022, and the other from Ryan Olson, the conductor at the time of the collision, filed on April 14, 2022. The defendants objected to the late filing of Mr. Olson’s affidavit, and the matter came before Justice Robertson on June 14, 2022.

Although Justice Klatt’s consent order required cross- examination of affidavits to be completed by March 31, 2022, CPR applied by notice of application to amend Justice Klatt’s consent order to permit the filing of these two affidavits and, consequently, provide an opportunity to the defendants to cross-examine the affiants. [ 9 ] The application came before Justice Robertson on June 14, 2022. By that time, the defendants had already cross-examined Mr. Rosin so that part of CPR’s application was moot. The defendants objected to CPR’s late-filed, two-page affidavit of Mr. Olson.

Justice Robertson extended time to permit CPR to file the affidavit and allowed the defendants to cross-examine Mr. Olson. However, Justice Robertson left the admissibility of Mr. Olson’s affidavit to be determined by the judge hearing the

summary judgment application. The defendants have cross-examined Mr. Olson, but, as a preliminary issue, I must now determine whether his affidavit should be admitted. [ 10 ] A second preliminary issue has also arisen. CPR has objected to the affidavit sworn by Mr. Ramcharan, a Claims Adjuster with a speciality in railway insurance claims. CPR states that Mr. Ramcharan’s affidavit is largely opinion evidence and that he is not a qualified expert witness to proffer such evidence. ISSUES [ 11 ] Is the

summary judgment procedure under The Queen’s Bench Rules a suitable mechanism to determine any or all of the following issues to avoid a trial: 1. Does The Limitations Act bar the defendants’ counterclaim? 2. Should Mr. Olson’s affidavit be admitted in evidence? 3. Should Mr. Ramcharan’s affidavit be admitted in evidence? 4. Can the court make a

summary determination whether the defendants are liable to CPR in negligence, namely: (

a) that Mr. Henderson owed a duty of care to CPR; (

b) if so, what was the appropriate standard of care Mr. Henderson owed; (

c) did Mr. Henderson’s conduct fall below the standard of care; and (

d) did Mr. Henderson’s negligence cause damage to CPR’s property?

5. Can the court make a

summary determination whether CPR was contributorily negligent, namely: (

a) that CPR owed a duty of care to the defendants; (

b) if so, what was the appropriate standard of care CPR owed; (

c) did CPR’s conduct fall below the standard of care; and (

d) did CPR’s negligence cause damage to the defendants’ truck? 6. If the defendants are liable to CPR in negligence (and if CPR is contributorily negligent), can the court summarily assess and apportion damages? THE SUITABILITY OF

SUMMARY JUDGMENT [ 12 ] I am prepared to determine issues 1, 2 and 4 in a

summary determination. I am unprepared to determine the remaining issues. Frankly, in my view, the entirety of this matter would have been better determined in the ordinary fashion under The Queen’s Bench Rules . [ 13 ] In my experience, too often litigants expect that

summary judgment is an appropriate proceeding to resolve factually complex lawsuits. Often the efforts taken to bring a matter forward in a

summary judgment application are as detailed and time- consuming as proceeding directly to trial. Commonly voluminous affidavits, exhibits (in this instance 33 from one affiant), and the entirety of the cross-examination transcripts are prepared and filed. In this instance, for example, several affidavits have been sworn and some objected to. Affidavits often have a ring of inauthenticity. As Justice Leurer stated in McCorriston v Hunter , 2019 SKCA 106 at para 25 , 33 RFL (8 th ) 310 [ McCorriston ], an “affidavit is the ultimate form of leading a witness.” [ 14 ] The party opposing the appropriateness of the

summary judgment procedure – in this instance the defendants – are faced with two challenges. First, they must marshal facts and mount an argument to show that a genuine issue requires a trial. Second, and more importantly, they must hedge their position, anticipating that perhaps the court will accept that a

summary determination is appropriate. In that case, they fear being “caught left-footed,” and, as one definition of that phrase suggests, they will “be put at a disadvantage when something happens which [they] do not expect, with the result that [they] do not know what to do next and often look foolish.” [ 15 ] Not only do the litigants engage in complex preparation, the court, too, is given double duty. Determining whether a genuine issue requires a trial necessitates understanding the entirety of the sometimes voluminous and detailed evidence without the sequential narrative found in viva voce testimony.

The court can often only determine whether a genuine issue requires a trial after gaining complete familiarity and understanding of the evidence and the argument, perhaps coming to the brink of a decision, but not quite. Even at this point, though, the court’s task is not over because, as directed in Hryniak v Mauldin, 2014 SCC 7 , [2014] 1 SCR 87 [ Hryniak ], if there appears to be a genuine issue requiring a trial, the court must next determine if a trial can be avoided by using Rule 7- 5(2)(

b) to weigh the evidence, evaluate credibility and draw inferences on whether, in the interests of justice, those powers should be exercised only at trial. [ 16 ] Having so deeply invested in the proceedings and realizing that the litigants have expended tremendous resources and time to bring the issues forward, the court will understandably feel an inclination to provide some remedial measure. Court of Appeal decisions in Canada have shown that a court’s brave venture forward, no matter how well intentioned, may be a misadventure. As Justice Schwann wrote in Ter Keurs Bros. Inc. v Last Mountain Valley (Rural Municipality) , 2019 SKCA 10 , 429 DLR (4 th ) 269, recognizing that

summary judgment applications favour “proportionality and fair access to affordable, timely and just adjudication of claims,” (para. 55) judges must still be mindful of the shortcomings inherent in

summary judgment applications. She wrote: [55] … However, at bottom, a judge who hears the matter must not be too eager to embrace a process that superficially appears to be more expeditious and less expensive if, in the given circumstances,

summary judgment is not capable of achieving a fair and just adjudication of the issues. … [ 17 ] The above comments are offered because, in this instance, the parties’ resources might have been better served if they had proceeded to trial on all the issues rather than the bifurcated results that have arisen by this decision. ANALYSIS Is the Defendants’ Claim Barred by The Limitations Act ? [ 18 ]

Section 5 of The Limitations Act provides that “…no proceedings shall be commenced with respect to a claim after two years from the day on which the claim is discovered.” The defendants’ counterclaim is offside this provision because it was not served until nearly three months after the two-year limitation period had expired. In their counterclaim, the defendants allege a tortious wrong that stood independently from CPR’s claim against them.

If the defendants thought they had incurred damages as a result of CPR’s negligent operation of the train, they, just like CPR, could have begun their claim within the limitation period. [ 19 ] Graeme Mew in The Law of Limitations, 3d ed (Toronto: LexisNexis, 2016) at 180 specifically comments on the effects of Saskatchewan’s legislation respecting counterclaims initiated outside the limitation period. He writes: 5.1.7 Saskatchewan §5.58 Saskatchewan’s Limitation Act is closely modelled on Ontario’s Act.

Section 5 provides that “…no proceedings shall be commenced with respect to a claim after two years from the day on which the claims is discovered”. The term “proceeding” is not defined in either the Act of the Saskatchewan Queen’s Bench Rules, however the rules do define a “claim” as “a claim respecting a

matter in which a plaintiff, originating applicant, plaintiff-by-counterclaim, third party plaintiff or petitioner seeks a remedy”. Rule 3- 46(1) provides that a counterclaim is an independent action and Rule 3-48 provides that except when the context or the Rules provide otherwise, a rule that applies to or with respect to a plaintiff applies equally to or with respect to a plaintiff-by-counterclaim and a third party plaintiff-by-counterclaim.

The Saskatchewan legislation does (unlike its Ontario counterpart) make provision for amending pleadings to add claims or parties after the expiration of a limitation period, which arise out of the same transaction or occurrence as the original claim, where the court is satisfied that no party will suffer prejudice.

It is questionable whether this power to amend would extend to the introduction of a new claim, out of time, by way of a counterclaim or third party proceeding. [Emphasis added] [ 20 ] The Saskatchewan legislation to which the learned author refers that allows amendments to add claims after the expiration of a limitation period is s. 20 of The Limitations Act . It reads as follows: 20 Notwithstanding the expiry of a limitation period after the commencement of a proceeding, a judge may allow an amendment to the pleadings that asserts a new claim or adds or substitutes parties if: (

a) the claim asserted by the amendment, or by or against the new party, arises out of the same transaction or occurrence as the original claim; and (

b) the judge is satisfied that no party will suffer actual prejudice as a result of the amendment. [ 21 ] I agree with the learned author’s view that it is questionable whether s. 20 allows, by counterclaim, a new claim that is out of time. More importantly, the defendants have never brought an application to amend the pleadings. I agree with the emphasized portion of the above quotation that allowing a counterclaim is a rather broad

interpretation of permitting an amendment to an existing pleading. [ 22 ] For these reasons the defendants’ claim for damages to the truck in the amount of $106,055.62 shall be struck. Although the defendants’ counterclaim is stuck, its pleading of contributory negligence as stated in para. 12 of its statement of defence remains a legitimate defence that must be addressed in this application. Admissibility of Ryan Olson’s Affidavit Background [ 23 ] In CPR’s initial application for

summary judgment by notice of application filed October 1, 2021, it relied upon a single affidavit sworn by Ms. Krushel, Claims Representative at CPR. Subsequently, the parties agreed to filing dates which they incorporated into a consent order granted by Justice Klatt. Under that order, the defendants were to serve and file their affidavit evidence on or before January 17, 2022. CPR was to serve and file its response affidavits by February 28, 2022, with cross-examinations of all affidavits to be completed by March 31, 2022. [ 24 ] On February 4, 2022, the defendants served two affidavits (one from Mr.

Henderson and the other by Ms. Crocker) and filed the affidavits on February 7, 2022, both later than the dates set out in the consent order. The defendants also filed a third affidavit from Mr. Ramcharan, sworn on February 8, 2022, in Edmonton, Alberta, served on CPR on February 10, 2022, and filed with the court on February 14, 2022. [ 25 ] The consent order stated that CPR was to serve and file its response affidavit evidence on or before February 28, 2022. However, CPR served Mr. Rosin’s affidavit (CPR Senior Manager, Signals) on March 9, 2022. The cross-examination of Mr.

Rosin was initially scheduled for April 1, 2022, as was the cross-examination of the other CPR affiant, Ms. Scott. Mr. Rosin became unavailable on April 1, 2022, and his cross-examination had to be rescheduled. Eventually, on May 3, 2022, Mr. Rosin was cross- examined, apparently without the defendants’ objection. [ 26 ] However, to the defendants, the bigger objection was CPR’s decision to serve yet another affidavit, this one by Mr. Olson, sworn and served on April 13, 2022, well after the consent order anticipated and after cross-examination of all affiants was completed (except for the rescheduling of Mr.

Rosin’s cross-examination). [ 27 ] Mr. Olson’s affidavit (after two introductory paragraphs) is eight rather brief paragraphs. He explains that he was riding the lead railcar as it approached the intersection. He describes that he was holding a bright LED flashlight and was keeping a lookout for any obstruction on the track or for traffic approaching the intersection. He spotted Mr. Henderson’s semi-trailer truck and began shinning his flashlight into the truck cab.

He saw the truck slow down and radioed the engineer to “keep going easy because it looked like he was going to stop…” Once he saw that the truck was not going to stop he told the engineer to “stop, stop, stop” at which point the engineer immediately applied the train’s emergency brakes. When the collision was imminent, Mr. Olson jumped off the car about a foot before the train collided with the truck. He describes that the train dragged the truck for about 40 to 50 feet down the railway tracks before coming to a halt. After he jumped off the train, he hurried towards the truck to see if the driver was hurt.

On his way, he called a CPR employee to call an ambulance and other first responders. Mr. Henderson confirmed that he was not hurt. When asked “what he was thinking,” Mr. Henderson answered that “the lights are always on and there is never a train.” Mr. Olson attached as an exhibit the statement he gave to the police the morning of the collision, at 0530 hours while sitting in the back of a police vehicle, an exhibit that Ms. Krushel had earlier exhibited to her affidavit. Respective Position of the Parties Concerning Ryan Olson’s Affidavit [ 28 ] The defendants oppose the admissibility of Mr.

Olson’s affidavit because it was served well beyond the deadlines set out in the consent order and after all but Mr. Rosin’s cross-examination had been completed. Consequently, the defendants refused to cross-examine Mr. Olson. This apparent impasse between the parties prompted an application by CPR, not to permit the late filing of Mr. Olson’s affidavit (as one might have expected) but for the following relief as stated in CPR’s notice of application:

1. …to revise the scheduling of steps to advance the within action to the hearing of the

summary judgment application and in particular, to revise certain dates provided in the Consent Order, to provide for the cross-examination of the Reply Affidavit of…Ryan Olson, sworn April 14, 2022… [ 29 ] Frankly, I find the relief CPR sought in its application – to extend the time for Mr. Olson’s cross-examination – rather odd. No case report I have seen has had a party who has served an affidavit compel an opposing party, by court order, to cross- examine on the affidavit.

Seeking to expand the time to permit the defendants to cross-examine on an affidavit the defendants considered illegitimate, is akin to allowing a person more time to eat a meal they never ordered. [ 30 ] In any event, when CPR’s application came before Justice Robertson, he ruled that cross-examination of Mr. Olson could occur outside the dates set out in the consent order. However, the ultimate admissibility of Mr. Olson’s affidavit would be determined at the

summary judgment application because, as Justice Robertson stated, that court “will have the advantage of evaluating the Olson affidavit in the context of all of the materials filed.” (para. 13) Justice Robertson concluded as follows: [22] CPR is open to criticism for not filing an affidavit from Ryan Olson when it filed its materials in accordance with the Klatt Order.

But it seems to me that justice is better served by allowing cross-examination. … … [25] Having regard to all of the circumstances, I have decided to exercise my discretion to grant the application and extend the time for the defendants to cross-examine Ryan Olson on his affidavit. I do so without prejudice to their objection to admissibility of the Olson Affidavit at the

summary judgment hearing. [ 31 ] Although neither party made extensive argument during the

summary judgment hearing respecting the admissibility of Mr. Olson’s affidavit, I have the benefit of the briefs of law filed in CPR’s application heard on June 14, 2022. [ 32 ] I find that CPR’s reliance on cases such as Regional Tire Distributors (Saskatchewan) Inc. v Quality Tire Service Ltd ., 2016 SKQB 411 and Casbohm v Winacott Spring Western Star Trucks, 2018 SKQB 15 , 30 CPC (8 th ) 175 is misplaced.

In the former case, at the behest of the defendants , the court permitted the cross-examination of affidavits filed by the plaintiff ; in the latter case, at the behest of the plaintiffs , the court permitted the cross-examination of affidavits filed by the defendant . In neither case did the party who relied upon an impugned affidavit seek to compel the opposing party to cross-examine on that affidavit.

In each case cited by CPR, the applicant sought an order to cross-examine the opposing party’s affidavit, a remedy markedly different from CPR’s application before Justice Robertson. [ 33 ] Although in its brief of law CPR relied, with emphasis, upon Rule 6-13(1) of The Queen’s Bench Rule which states … …the Court may, on the application of either party, order the attendance for cross-examination of the person making the affidavit…. [Emphasis in the original] … this Rule presupposes that the party seeking to cross-examine is not the party who has served the affidavit.

More appropriately, CPR should have sought an order to amend the consent order to permit it to serve Mr. Olson’s affidavit at a date well after the terms of the order permitted. Upon granting such an order, the corollary relief would naturally follow: the defendants would have an opportunity to cross-examine Mr. Olson. [ 34 ] The defendants opposed the late filing of Mr. Olson’s affidavit, relying upon Studio Pyramid Inc. v Raffan, 2020 ONSC 1476 [ Studio Pyramid ].

In that case, the plaintiff sued the defendant for fraudulent conveyance, alleging the defendant had transferred her interest in a property to avoid judgment enforcement in another action. The defendant brought a

summary judgment application to dismiss the plaintiff’s claim. After the cross-examinations were completed, the plaintiff sought to serve two further supplementary affidavits, one sworn by an expert providing a valuation of the property and the other responding to answers provided during cross-examination of an opposing affiant.

In deciding whether to allow the filing of further affidavits after cross-examination, the court offered the following helpful comments: [25] Rule 39.02(2) provides that leave is required before a party can file additional evidence on a motion following cross- examinations: A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03. [26] The parties agree that the following test applies to Rule 39.02(2): a.

Is the evidence relevant? b. Does the evidence respond to a matter raised on the cross-examination, not necessarily for the first time? c. Would granting leave to file the evidence result in non-compensable prejudice that could not be addressed by imposing costs, terms, or an adjournment? d. Did the moving party provide a reasonable or adequate explanation for why the evidence was not included at the outset? See: First Capital Realty Inc. v. Centrecorp Management Services Ltd. , [2009] O.J. No. 4492 (Div. Ct.) , at para. 13 .

[ 35 ] Applying these guidelines, the court did not permit the filing of the two affidavits after cross-examination of other affiants had been completed. Specifically, the court found that one of the issues addressed in the proposed affidavit had already arisen from the defendant’s previously filed affidavit. Nor did the applicant address the delay in serving his supplemental affidavit until several months after the completion of cross-examinations and two weeks before the

summary judgment motion was originally scheduled to proceed. [ 36 ] The defendants also relied upon Winkler v Hendley, 2021 FC 498 [ Winkler ] where the court addressed whether an affidavit might be served after cross-examinations were complete. The court stated: [23] In assessing whether to admit evidence after the conduct of cross-examination, the Court will consider (

i) the relevance of the proposed affidavit, (ii) the existence of prejudice to the opposing party; (iii) whether the affidavit will assist the Court; and (iv) the overall interests of justice including whether the evidence was available or could have been anticipated earlier: Canmar Foods Ltd v TA Foods Ltd , 2019 FC 1229 at paras 11–12 , applying Pfizer Canada Inc v Rhoxalpharma Inc , 2004 FC 1685 at para 16 . [ 37 ] I agree with the defendants that the above statement accurately directs the court’s analysis. I will adopt the ratio as stated in Studio Pyramid and Winkler.

The Relevance of the Proposed Affidavit [ 38 ] Only two persons had first-hand knowledge of the collision: Mr. Henderson, the driver of the truck, and Mr. Olson, the conductor on the last railcar as it approached the intersection. Because CPR’s cause of action is in negligence, one might have expected that Mr. Olson’s description of the collision would be significant and pertinent. However, in preparing for its

summary judgment application, CPR initially served and filed only one affidavit sworn by Ms. Krushel, CPR’s Claims Representative in Calgary, Alberta. [ 39 ] The Queen’s Bench Rules address and direct parties who seek

summary judgments to prepare affidavits in a certain manner. Rule 7-3(3) reads as follows: 7-3(3) An affidavit for use on an application for

summary judgment may be made on information and belief as provided in rule 13-30, but, on the hearing of the application, the Court may draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. [Emphasis added] [ 40 ] Implicit in Rule 7-3(3) is the advisability of having persons like Mr. Olson swear an affidavit, even though Ms. Krushel was able to rely upon Rule 13-30 and swear an affidavit based on information and belief. However, because Rule 13-30 only permits affidavits sworn on information and belief in “an interlocutory application,” one might question whether a

summary judgment application that results in a final judgment is an interlocutory application. Ms. Krushel makes many statements that, if proffered at trial, would be considered hearsay. Nonetheless, as the Rules now read, Ms. Krushel’s affidavit cannot be overly criticized for relying on the information and beliefs of other parties. [ 41 ] Ms. Krushel specifically refers to Mr. Olson at para. 9 of her affidavit and exhibits to her affidavit the report he provided to the police shortly after the collision. Ms.

Krushel also explains that she learned about the moments leading up to the collision and then describes the details of the collision. Her description of the collision, including Mr. Olson’s police report, provide essentially the same information that would eventually appear in Mr. Olson’s affidavit. [ 42 ] So, respecting the relevance of Mr. Olson’s affidavit, I find that although Mr. Olson’s affidavit contains highly relevant evidence, his evidence was already before the court (and more importantly, before the defendants) without his affidavit. Admittedly, Ms.

Krushel’s affidavit was not the preferred way for CPR to adduce Mr. Olson’s evidence because it invited the court to “draw an adverse inference” against CPR for failing to provide evidence of a “person having personal knowledge of the contested facts.” The Existence of Prejudice to the Defendants [ 43 ] The conclusion just stated above answers the next inquiry: whether the defendants were prejudiced by the late filing of Mr. Olson’s affidavit. Nothing in Mr. Olson’s affidavit should have surprised the defendants after they had read Ms. Krushel’s affidavit, particularly, the exhibited police report that Mr.

Olson provided shortly after the collision. Whether the Affidavit Will Assist the Court [ 44 ] Just as I have concluded that little in Mr. Olson’s affidavit should have been surprising to the defendants, little in his affidavit surprises the court given what can be found in Ms. Krushel’s affidavit. Mr.

Olson mostly particularizes the statement he gave to the police. [ 45 ] For example, instead of “I told my Engineer to stop,” (as found in his police report), his affidavit reads, “I told my engineer to ‘stop, stop, stop’ at which point he immediately applied the Train’s emergency brakes.” Instead of “and then [I] jumped off the rail car,” his affidavit reads, “I jumped off about a foot before the Train collided with the Truck.” (para. 5) [ 46 ] Other portions of Mr. Olson’s police statement and his affidavit are virtually identical. In the former he wrote, “I saw the truck coming toward the crossing.

I told my Engineer to keep coming back easy because the truck looked like it was going to stop.” In his affidavit he stated, “I told my engineer to keep going easy because it looked like he was going to stop but he never did.” (para. 5)

[ 47 ] Mr. Olson adds certain details of happenings after the collision that provide context but are essentially irrelevant to CPR’s allegation of negligence or the defendants’ defence. In his affidavit, Mr. Olson describes that the truck was dragged about 40 or 50 feet down the railway tracks before coming to a halt. Right after he jumped off the train, he hurried toward the truck to see if the driver was hurt. He then called for an ambulance and first responders. After their arrival he states that he gave his statement to the Regina Police Service. Overall Interests of Justice [ 48 ] Frankly, in light of Ms.

Krushel’s description of the collision (albeit based on information and belief), including Mr. Olson’s police report, I find Mr. Olson’s affidavit to be rather benign. It offers nothing contradictory or particularly enlarging that cannot be found in Ms. Krushel’s affidavit. Although the preferred source of Mr. Olson’s evidence would have been better contained in his own affidavit, served contemporaneously with Ms. Krushel’s affidavit, I would have reached the same conclusion in this

summary judgment application whether or not Mr. Olson’s affidavit was admitted. [ 49 ] I understand that the defendants principally opposed the service of Mr. Olson’s affidavit because CPR served the affidavit after the cross-examinations of other witnesses and not because service of the affidavit offended the timelines set out in the consent order. However, neither party abided by the terms of the consent order. The defendants were to have served their response affidavit evidence by January 17, 2022. They filed two affidavits on February 7 and one on February 14, 2022, well after the filing “deadline.” [ 50 ] By their own conduct, the defendants saw significant latitude in the

interpretation of the consent order. Apparently, the defendants encountered no objection from CPR in filing their response affidavit evidence considerably later than the consent order anticipated. [ 51 ] Notably, too, although Justice Klatt’s fiat of November 2, 2021, has the full authority of the court, no formal order was taken out by either party. The terms of the fiat were undoubtedly agreed upon by both parties so that each would understand the proceedings to be taken and the dates that each expected the other to serve and file affidavit evidence and briefs of law to ready the matter for a hearing.

The fiat contemplates that these filing expectations might go awry. Justice Klatt wrote in her concluding paragraph: [7] In the meantime, counsel can consult with the Local Registrar to see if they can tentatively choose a hearing date. If, however, it appears that there are matters that have not been filed, in accordance of these timeline, that date will not be reserved for the parties. [ 52 ] Justice Klatt’s order was made November 2, 2021, and the matter was adjourned to May 12, 2022, more than six months later to set a hearing date.

Within that time, neither party conducted itself strictly within the terms of the order. [ 53 ] I will admit Mr. Olson’s affidavit and, having admitted his affidavit, I will also consider the evidence he provided during his cross-examination. Admissibility of Joel Ramcharan’s Affidavit [ 54 ] CPR has asked that Mr. Ramcharan’s affidavit be struck because it offers opinion evidence from a witness who is not an expert. I have declined to adjudicate damages given the conflicting and incomplete nature of the evidence. Because Mr.

Ramcharan’s affidavit primarily addresses damages, I will not rule on the admissibility of his affidavit. That matter will be left to the court that may be asked to quantify damages based on the evidence that the defendants might bring forward at trial. Can Defendants’ Alleged Negligence be Summarily Determined? The Legal Framework [ 55 ] Among the multitude of applications that come before the court seeking

summary judgment – sometimes solely by the plaintiff and opposed by the defendant, sometimes solely by the defendant and opposed by the plaintiff, sometimes simultaneously by both plaintiff and defendant – in this instance, it is the first situation: the plaintiff, CPR, seeks

summary judgment, and the defendants oppose it, saying a genuine issue requires a trial. [ 56 ] Since the court’s introduction of

summary judgment rules and the Supreme Court’s decision in Hryniak , the Saskatchewan courts have written extensively to explain the difference between the court’s ability to summarily determine a lawsuit and the necessity of a trial. In implementing this difference, succinct guidance is offered by Justice Leurer in McCorriston .

There, without specific reference to the shifting burden of proof analysis as found in Canada (Attorney General) v Lameman , 2008 SCC 14 , [2008] 1 SCR 372 and without the bifurcated analysis of first deciding whether a genuine issue requires a trial, and if a trial is required, then invoking the special powers under Rule 7-5(2) to avoid the trial as found in Hryniak (respectfully, a conceptually difficult direction to navigate), Justice Leurer gave brief and clear instruction: a judge must be able to confidently make a “fair and just” determination within the stated principles of appellate review.

Justice Leurer explained: [23] …summary judgment is granted only when the court is able to adjudicate the dispute before it in a manner that achieves a fair and just result. …. Rule 7-5(1) allows for

summary judgment where “the Court is satisfied that there is no genuine issue requiring a trial”. In this regard, in Hryniak , the Supreme Court of Canada inextricably linked the determination of whether a genuine issue requiring a trial exists with the ability of the court to make a fair and just determination on the merits of the issue in dispute: [49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. [50] These principles are interconnected and all speak to whether

summary judgment will provide a fair and just adjudication. When

a

summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute.

It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute. [ 57 ] The court must have confidence that a “fair and just determination” can be reached by considering the evidence before it while understanding the shortcomings inherent in less than full viva voce testimony. Determining what constitutes a “fair and just determination” is a matter of mixed law and fact, requiring judges to assess the merits of granting

summary judgment without making a palpable and overriding error: McCorriston at para 29 , citing Hryniak at para 81 . [ 58 ] Judges must be alert to what might be considered three types of evidence that may come before them in a

summary judgment application. There may be “a core of undisputed facts,” as Justice Leurer found were before the chambers judge in McCorriston (para 32 ); outside these core facts there may be “other details where…there was no dispute” (para 33); and finally, there may be “significant facts…in dispute” (para 34).

In face of the latter, chambers judges are not stymied in reaching a final adjudication but – and here is the essence of the task facing chambers judges in such a case – they must “…either resolve this conflict in the evidence or find that the conflict in the evidence was not relevant to the determination of the… issue.” ( McCorriston at para 39 ). [ 59 ] In this application, I must first determine whether the affidavit evidence is conflicting. If I find no conflict in the evidence, chances are I will be comfortable to make a “fair and just” determination and grant a

summary judgment. On the other hand, if I find conflict, I must explain whether I can resolve the conflict using the powers under Rule 7-5(2) by weighing evidence, evaluating the credibility of the affiant’s statements, and drawing reasonable inferences. If I can resolve the conflict or explain that the matters in controversy are not material to a fair and just determination of the issues, I will likely be comfortable to make a “fair and just” determination and grant a

summary judgment. If I cannot resolve the conflict using the powers under Rule 7-5(2), I must decline granting

summary relief. Position of CPR and the Defendants [ 60 ] The defendants state that liability “cannot be resolved on the evidence now filed, namely, whether the conductor, Ryan Olson, was standing on the tanker car and waving his handheld flashlight to alert the semi-truck of the approaching train.” (defendants’ brief of law dated November 21, 2022 at para. 26). I see this position, not essentially as a defence to Mr. Henderson’s negligent driving, but as an allegation of contributory negligence. [ 61 ] CPR states that only Mr. Olson and Mr.

Henderson would be able to provide evidence at trial and each has provided an affidavit: Mr. Olson stating he was on the rear car, that he had a flashlight and that he shone it into the cab of the truck; Mr. Henderson stating that he could not see anything because he was blinded by the flashing red lights. CPR argues that no better evidence will be available at trial. And, more importantly, the discrepancy in the evidence does not raise an issue of credibility . CPR states that the evidence of the two men is not conflicting. What are the Issues to be Resolved? [ 62 ] CPR’s claim is based in negligence.

Accordingly, I must ask whether, based on the evidence before me, I am comfortable in deciding: (1) that Mr. Henderson owed CPR a duty of care (admitted by the defendants); (2) that Mr. Henderson’s driving breached the standard of care; (3) that CPR sustained damage; and (4) that the damage was caused by Mr. Henderson’s driving.

Does the Evidence Establish a Breach of the Standard of Care? [ 63 ] Respecting standard of care: what does the law expect of a holder of a class 1F licence who has been driving a semi-truck for 30 years, who approaches a familiar railway crossing, in the dark, with flashing red lights that blind his vision? What does the evidence from the only two persons who witnessed the collision – Mr. Henderson and Mr. Olson – reveal about the few minutes during which the collision occurred? [ 64 ] Mr.

Henderson was traveling from Winnipeg, Manitoba to Saskatoon, Saskatchewan when he approached the red flashing lights at the crossing, which he routinely crossed approximately four times a week. In his affidavit, Mr. Henderson stated that the lights were often activated, but without an advancing train, an occurrence he estimated happened two or three times per month. Vehicles would slow down, check the railway tracks to confirm no train, and proceed.

The railway was often shunting oil tanker cars from the Co-op refinery and, although the lights were activated, tanker cars were not necessarily moving across the intersection. [ 65 ] As Mr. Henderson approached the crossing on the early morning of January 20, 2018, another semi-truck, about 100 feet in front of him, slowed down and crossed the railway tracks. He recalled seeing the brake lights of another smaller vehicle proceeding in the same manner. He geared down and was in first gear when he arrived at the crossing.

Although he scanned the crossing as he neared it, “the bright red lights were making it difficult to see in the darkness.” (Affidavit of Mr. Henderson sworn January 20, 2022 at para. 12) Mr. Henderson’s affidavit continues, as follows: 12. …I continued to slow down and looked first to the left to ensure it was clear, as I would normally at any intersection, although the angle of the tracks made this difficult. I continued to brake, coming to a stop just before the tracks. I looked to my right, down the tracks, and did not see anything illuminated in the flashing red lights.

I also did not see anything moving beyond the red lights, directly in front

of my truck, and started forward. 13. I proceeded to cross the tracks, still moving slowly from a stopped position (about 10 km/hr), and immediately noticed to my right a black oil tanker car entering the intersection. There was no engine or other car with a headlight, but rather what appeared to be the last car of a train, either reversing down the track or being pushed down the track. The train was moving a little faster than I was, at about 15 km/hr, and I remember saying to myself: “Oh, shit” when I realized my rig was not going to clear the tracks. I was then struck by the train on the passenger side. … 15.

Approximately one minute after my vehicle came to a stop, while still in the tractor, someone came up to my truck to see if I was okay…. He asked whether I saw someone waving a light, to which I responded no, which is why I did not see the train. 16. The gentleman said he was on the last tanker care waving a light in my direction. I know there are steps and a small standing platform by the knuckles on those tanker cares, but I did not see anyone with a flashlight or other illuminated device standing on the car that struck my vehicle.

I also do not believe there was anyone on that last car because I know from past experience that any high intensity light will penetrate flashing railway lights, and I looked as carefully as I could in both directions before proceeding. … 22. I was unable to see the train given the circumstances described herein:

i) the darkness; ii) the black tanker car(s); iii) no train lights; iv) the angle of the crossing coupled with the flashing red lights; and

v) no person with a manual warning light on the tanker car that struck my semi-truck. [ 66 ] Mr. Henderson swore his affidavit on January 20, 2022, approximately four years after the collision. I have compared the statements in his affidavit to the three statements he provided on the day of the collision, one to the Regina Police Service, one to his employer and a third to an insurance adjuster. I note certain discrepancies in these statements from the statements in his affidavit. In the police statement, in Mr.

Henderson’s handwriting, he states, “I went to go after a rolling stop…” That statement is quite different than saying “I continued to brake, coming to a stop just before the tracks….” (Affidavit of Mr. Henderson at para. 12) [ 67 ] In a transcribed statement, signed by Mr. Henderson on January 30, 2018, he states: I saw lights flashing at the rail crossing. I slowed down, there was a vehicle in front that slowed then proceeded. I looked to my left and there was no train, I looked back to my right and realized there was a rail car coming at me.

The train was shunting cars and the engine was facing away from me making it difficult to see. My vision was obscured by the flashing lights at the crossing and I didn’t see the rail car until I was on the track. (Affidavit of Mr. Henderson, Exhibit C) [ 68 ] Again, Mr. Henderson does not say he came to a stop, but that he slowed down. As well, he states that his vision was obscured by the flashing lights and that he did not see the railcar until it was on the track. In order for the railcar to have struck the truck, it must have been in close proximity to the crossing, but, nonetheless, Mr.

Henderson did not see it. In his cross-examination, Mr. Henderson answered as “Correct,” when asked “And when you looked to your right, you saw the glare from the red flashing lights, correct?” He agreed that the train was behind the red flashing lights, in his line of vision. [ 69 ] In his third statement to the adjuster, Mr. Henderson again states that he was looking for the headlight of a train. He twice referred to the “flashing lights” and stated, “So I was kind of blinded by lights so but I was only going like 10 – 15 klicks.” (Affidavit of Mr. Henderson, Exhibit

D) Again, unlike his affidavit statement, his statement to the adjuster suggests he had not come to a stop. [ 70 ] Mr. Henderson was charged under s. 209(6) (

b) of The Traffic Safety Act , SS 2004, c T-18.1 for failing to stop at a flashing red light at a railway crossing. Mr. Henderson states in his affidavit that he paid the ticket, not because he had done something wrong, but because he, not his employer, would have had to pay the costs to contest the ticket. [ 71 ] Section 209(6) (

b) and (8) of The Traffic Safety Act reads as follows:

(6) No driver of a vehicle shall fail to bring the vehicle to a stop: … (

b) when approaching a railway crossing, and a signal person or automatic signal indicates the approach of a train… …

(8) No person who is required to stop pursuant to subsection (6).. shall proceed until it is safe to do so. [ 72 ] I have already considered that Mr. Henderson’s statements given at the time of the collision clearly suggest he did not come to a complete stop. Mr. Olson’s observations reinforce this finding. Before the court are four sources of what Mr. Olson witnessed that morning:1) the affidavit of Ms. Krushel based on information and belief; 2) Mr. Olson’s handwritten statement given to the Regina Police Service at 0530 hours the morning of the collision (as exhibited to his and Ms.

Krushel’s affidavit); 3) Mr. Olson’s affidavit sworn April 13, 2022; and 4) cross-examination of Mr. Olson on September 22, 2022. All augur for the same finding: that Mr. Henderson did not bring his truck to a complete stop. [ 73 ] Mr. Olson describes that the train’s engine was pushing tanker cars south from the Co-op refinery, moving at approximately five miles per hour for several thousand feet toward the railway crossing on Ring Road. The crossing was equipped with

crossbucks and lights, which started flashing red at least 20 seconds before the train arrived at the crossing. Mr. Olson was riding on the lead railcar, communicating with the engineer through a handheld radio that was strapped onto his high-visibility safety vest. Mr. Olson states that he was holding “a bright LED flashlight” and was keeping a lookout for any obstructions on the track or traffic in or around the crossing. [ 74 ] As the train approached the crossing, Mr. Olson saw the semi-trailer truck nearing the intersection. He shone his flashlight into the truck’s cab. The driver began to slow down.

He told the engineer to keep moving “easy” because it looked like the driver was going to stop. But he did not. When Mr. Olson saw that the truck was not going to stop, he radioed the engineer to stop. The engineer immediately applied the train’s emergency brakes, but the weight of the train prevented a quick stop. The truck rolled onto the track and Mr. Olson jumped off the car about a foot before the train collided with the truck. The train dragged the truck about 40 to 50 feet down the railway tracks. [ 75 ] In cross-examination Mr.

Olson confirmed that when he was not working, he kept his CPR-issued radio and LED flashlight in his locker. Mr. Olson described the flashlight as being 10 to 12 inches in length, powered by large, square nine-volt batteries. Mr. Olson preferred to work nights and stated that he used the flashlight all night long, every night he worked. In cross- examination Mr. Olson agreed that his flashlight is a “companion” on every shift and that he had it on the whole time he was working that shift. Mr.

Olson repeatedly stated during his cross-examination that he waved his LED flashlight at the approaching truck. [ 76 ] In cross-examination Mr. Olson explained that the engine was reversed, that is, it was pushing the 36 cars backwards with the engine’s light shining into the first car, not forward. [ 77 ] So, given this evidence before me, can I summarily determine whether Mr. Henderson’s conduct fell below the standard of care expected of him? [ 78 ] In answering this question, I cannot see any further evidence coming before the court relevant to Mr.

Henderson’s driving, even if this action were to proceed to trial. Only two persons, Mr. Henderson and Mr. Olson, can describe what happened early that morning and each has done so, both by affidavits and cross-examinations. [ 79 ] The court accepts that a reasonable driver of a semi-truck, driving an attached trailer, faced with flashing red lights at an awkwardly angled railway intersection, in the dark, would minimally come to a complete stop before proceeding. I find that Mr. Henderson did not bring his truck to a complete stop.

Even his own statements are at odds as to whether he slowed to a “rolling stop” or came to a complete stop. Mr. Henderson’s earlier statement to the Regina Police Service given immediately after the collision is likely more accurate – that he came to a “rolling stop” – than the statement in his affidavit sworn January 20, 2022, that “I continued to brake, coming to a stop just before the tracks….” Mr. Olson’s statement corroborates the finding that Mr. Henderson only came to a “rolling stop.” He saw the truck slow but when it did not stop, he told the engineer to apply the train’s brakes.

I am satisfied on the evidence before me that Mr. Henderson did not bring the truck to a complete stop. [ 80 ] Furthermore, I am satisfied that whether Mr. Henderson brought the truck to a complete stop or a rolling stop does not fundamentally change the analysis. Even if he had brought the truck to a complete stop and proceeded through the red flashing lights without taking reasonable precautions to confirm that no train was approaching was a breach of the standard of care. As The Traffic Safety Act requires, bringing a vehicle to a stop at a railway intersection is not, of itself, sufficient.

After stopping, one must not proceed “until it is safe to do so.” For one’s own safety, regardless of liability to someone’s property, proceeding through flashing red lights when one has not determined it is safe to proceed is a negligent act. [ 81 ] Mr. Henderson described traveling on Ring Road to be his “regular trip” for the past eight years.

He travelled the route twice weekly and described himself as being “very familiar” with the crossing, which he crossed “four times weekly, twice going to Saskatoon and twice more on the return leg” to Regina. (Transcript of cross-examination, Vol 1, page 19, lines 24 to page 21, line 22). Mr. Henderson was aware that the railway often shunted oil tanker cars on the track at that crossing, including the type of tanker cars that he collided with. He was not a stranger to this crossing and essentially had been forewarned of its dangers. [ 82 ] I find that Mr.

Henderson fell below the standard of care expected of a reasonable truck driver approaching flashing red lights at a railway crossing when he failed to come to a complete stop and to not proceed until it was safe to do so. Loss and Causation [ 83 ] CPR suffered damage to its property as a result of the collision. [ 84 ] CPR’s property would not have been damaged, “but for” the collision. Nor were the damages too remote a consequence of Mr. Henderson’s negligent driving. Can CPR’s Alleged Contributory Negligence be Summarily Determined? [ 85 ] Having found Mr.

Henderson negligent, I will now turn to the defendants’ allegation that CPR negligently contributed to its own loss. Can I, on the evidence before me, summarily determine, that CPR was negligent in the operation of its train? [ 86 ] Again, as with any negligence action, duty of care, standard of care, breach, proof of loss and causation must be determined. CPR’s duty to care for motorists is not in question. [ 87 ] I find that I cannot establish a standard of care based on the evidence before me.

Both parties seemingly agree that the Canadian Rail Operating Rules [CROR] establish, at least in part, an appropriate standard of care for railway operations. In ordinary proceedings, one would expect that CPR would have produced the CROR as a relevant document. However, the sole source of a portion of the CROR is found in Mr. Ramcharan’s affidavit, an affidavit whose admissibility will ultimately be determined by a trial judge. Mr. Ramcharan’s affidavit principally criticizes CPR’s assessment of damages (an issue I decline to determine). For that purpose, Mr.

Ramcharan prepared a report for the defendants and attached it to his affidavit. In one part of his report, he quotes portions of the

CROR that he considered relevant to the action. [ 88 ] The portions of the CROR that Mr. Ramcharan considered relevant read as follows: 103. PUBLIC CROSSINGS AT GRADE (

a) Where a railway track and a public road share the same roadbed and there is no fence or other barrier between them, moving rail cars not headed by an engine or when headed by a remotely controlled engine must be protected by a crew member on the leading car or on the ground, in a position to warn persons standing on, or crossing, or about to cross the track. (Emphasis added) (

b) When required by special instruction or when cars not headed by an engine, snow plow or other equipment equipped with a whistle and headlight, are moving over a public crossing at grade, a crew member must provide manual protection of the crossing until the crossing is fully occupied. EXCEPTION: Manual protection of the crossing is not required provided the crossing is equipped with automatic warning devices and a crew member is on the leading car to warn persons standing on, or crossing, or about to cross the track. This exception does not modify the application of Rule 103.1 (a). … (

g) When providing manual protection of a crossing, a crew member or other qualified employee must be on the ground ahead of the movement, in a position to stop vehicular and pedestrian traffic before entering the crossing. A hand signal by day and a light or a lighted fusee by night will be used to give a signal to stop vehicular and pedestrian traffic over such crossing. The movement must not enter the crossing until a signal to enter the crossing has been received from the employee providing the manual protection. 103.1 PUBLIC CROSSING AT GRADE WITH WARNING DEVICES (

a) When a movement passes over any public crossing at grade equipped with automatic warning devices, it will be necessary, before reversing over the crossing, for a crew member to provide manual protection of the crossing . [ 89 ] I have declined to summarily determine the issue of contributory negligence, for several reasons. [ 90 ] First, only a portion of the CROR has been provided to the court. Are there other portions of the CROR that might be relevant?

I note, for example, that in 2022, CROR (available on-line but not part of the evidence before the court) included a definition of the term “movement” (as used in rule 103.1) is a “term used in these rules to indicate that the rule is applicable to trains, transfers or engine in yard service. ” Although the defendants suggest that the operative rule is 103.1 (because the train was reversing), is the rule restricted to trains in yard service?

The entirety of the CROR (applicable at the time of the collision) should be provided to the court. [ 91 ] Second, the only source of the CROR that is before the court is an exhibit to Mr. Ramcharan’s affidavit, embedded in a report primarily to examine CPR’s damages as described in a particular invoice.

However, because this affidavit principally deals with damages and because I have allowed the trial judge to determine whether it is admissible, I am unprepared to adjudicate whether the CROR establishes the appropriate standard of care and, if so, which rule, the court must consider to finally adjudicate an issue when the only evidence before the court is an exhibit to an impugned affidavit. [ 92 ] Third, CPR made no mention of the CROR in either any affidavit or its initial brief of law. Only after the defendants cited the CROR in their brief of law did CPR refer to the CROR in its reply brief of law.

I find that the parties have not made a sufficiently detailed or helpful argument to assist the court in the

interpretation of the applicable rule(s). CPR states that rule 103(

a) applies and the only conduct required of CPR was to have a person on the lead car in a position to warn persons about to cross the railway tracks. On the other hand, the defendants say that the train was “reversing,” thereby governed by rule 103.1(a), which required a person to provide “manual protection of the crossing.” Manual protection apparently requires a person to be on the ground ahead of the movement – rule 103(g). [ 93 ] Fourth, the court received little assistance in determining several concepts embedded in the rules.

For example, what (under rule 103(a)) might constitute “a railway track and a public road [that] share the same roadbed [where] there is no fence or other barrier between them….” Seemingly, if CPR considers rule 103(

a) to be applicable it must illustrate to the court that the crossing on Ring Road is a sharing of the “same roadbed.” Similarly, the parties have not presented to the court their views on an appropriate

interpretation of other phrases and terms in the rules. [ 94 ] Although I decline making a finding respecting contributory negligence, the rules seemingly require one or both of two safeguards: a person must be on the lead car with a warning device, or a person must be on the ground to provide manual protection. To the extent that my finding may assist the parties, whether in settlement discussions or in an abbreviated trial, I find that Mr.

Olson was on the lead car as it approached the intersection, that he was holding a flashlight and that he remained on the car, jumping off moments before the train collided with Mr. Henderson’s truck. As well, I find that no CPR employee was providing manual protection by standing on the ground in a position to warn Mr. Henderson. Damages [ 95 ] The evidence respecting CPR’s allegation of damages is too conflicting to be summarily determined. Evidence is vague and conflicting respecting adjustment for depreciation or betterment when some of the new equipment was an upgrade from the original equipment.

The additional expense incurred to install a temporary bungalow apparently required additional power to the original locations. I agree with the defendants that to explore the issue of damages, questioning may be required. [ 96 ] In any event, without a determination of contributory negligence, quantifying damages cannot be completed.

SUMMARY [ 97 ] In

summary I find as follows: 1. The defendants’ counterclaim is struck as being out of time. 2. Mr. Olson’s affidavit shall be admitted as evidence. 3. The issue of the admissibility of Mr. Ramcharan’s affidavit is left to the trial judge. 4. Mr. Henderson was negligent in the operation of the semi-truck and that negligence caused loss to CPR. 5. The defendants’ allegation of contributory negligence cannot be summarily determined. 6. The issue of damages cannot be summarily determined. [ 98 ] The costs of this application shall be determined in the cause by the trial judge. J. D.H. LAYH