r v. Brink's Canada Ltd, 2020 NLSC 130

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Butler v. Brink's Canada Ltd . , 2020 NLSC 130 Date : September 29, 2020 Docket : 201401G0744 Between: Shawna j. butler Plaintiff And: brink's canada ltd. First Defendant And: Rory Dyke Second Defendant And: Quang Tuan Nguyen Third Defendant And: Brink's Canada Ltd. First Third Party And: Rory Dyke Second Third Party Before: Justice Vikas Khaladkar

Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: September 25, 2020

Summary: The Plaintiff applied to amend her Statement of Claim. The Application was opposed by the First and Second Defendants/First andSecond Third Parties. The Third Defendant took no position on the Application. The Application was granted with costs to the Defendants under Column III of the Scale of Costs in any event of the cause. Appearances: David D. McKay, Q.C. Appearing on behalf of the Plaintiff Sharyl J. Rowsell Appearing on behalf of the First and Second Defendants/First and Second Third Parties Kathleen M.

O’Neill Appearing on behalf of the Third Defendant Authorities Cited: CASES CONSIDERED: Butler v. Kloster Cruise Ltd. (1992), (NL SC), 98 Nfld. & P.E.I.R. 138, 311 A.P.R. 138(Nfld. S.C. (T.D.)); Petten v. E.Y.E. Marine Consultants (1994), (NL SC), 120 Nfld. & P.E.I.R. 313, 373 A.P.R. 313(Nfld. S.C. (T.D.)); Hollett v. St. John’s (City), 2007 NLTD 210 STATUTES CONSIDERED: Highway Traffic Act, R.S.N.L. 1990, c. H-3 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION [1] The Plaintiff, Shawna J.

Butler, was the driver of the third vehicle in a three car collision that occurred on the Ring Road

encircling the City of St. John’s on March 1, 2013. I will refer to the Plaintiff in this decision as “Ms. Butler”. The first vehicle belonged to Brink’s Canada Ltd., the First Defendant, and it was being driven by Rory Dyke, the Second Defendant. I shall refer to them as “Brink’s” and “Mr. Dyke”, respectively. The second vehicle belonged to, and was being driven by the Third Defendant, Quang Tuan Nguyen. I shall refer to the Third Defendant as “Mr. Nguyen”. Mr. Nguyen has added Brink’s and Mr. Dyke as third parties to the action. [ 2 ] Ms.

Butler seeks to amend the Statement of Claim in order to conform with evidence adduced at Examinations for Discovery conducted in this matter and, as well, to conform with reports received from experts. [ 3 ] Mr. Nguyen took no position with respect to the Plaintiff’s Application and filed no material, although his counsel attended the hearing. ISSUE Is Ms. Butler entitled to amend her pleadings? ANALYSIS [ 4 ] Brink’s and Mr. Dyke have agreed to certain amendments to the pleadings - one such agreed to amendment involves adding the gross mass of the Brink’s truck, another cites that Mr.

Dyke was an employee of Brink’s. The third set of amendments that are agreed to involve an amendment replacing an allegation concerning Ms. Butler’s “slow speed” with a “safe and prudent speed”. Furthermore, the passing lane that Ms. Butler was driving in is sought to be characterized as the “left, westbound” passing lane. Other amendments that are agreed to refer to the fact that the roadway is a highway - instead of calling it the Ring Road. [ 5 ] Ms. Butler seeks to replace paragraph 6 of the Statement of Claim – which contained a general allegation that Mr.

Dyke negligently stopped the Brink’s truck in the passing lane and, then, contained particulars of Mr. Nguyen’s negligence. It was alleged in that paragraph that after the accident between Mr. Nguyen and the Brink’s truck, Mr. Nguyen’s vehicle travelled back towards Ms. Butler’s vehicle and struck it. Ms. Butler is seeking to abandon her previous allegation that Mr. Nguyen’s vehicle travelled backwards and struck her vehicle. It will be remembered that Mr. Nguyen is taking no position on Ms. Butler’s proposed amendment. [ 6 ] In the new paragraph 7 proposed to be added to the Statement of Claim, Ms.

Butler alleges that Mr. Dyke negligently stopped or significantly slowed the Brink’s truck in the passing lane of the highway when visibility was limited. While adding some particulars, paragraph 7 does not materially change the basic premise in the deleted paragraph 6 that Mr. Dyke negligently stopped the Brink’s truck in the passing lane - other than to say that he may have significantly slowed its progress as opposed to stopping it entirely. Poor visibility is added in this paragraph. [ 7 ] In the new paragraph 8 it is alleged that Mr.

Nguyen’s vehicle then collided with the Brink’s truck - which was either stopped or moving very slowly. This fact was also alleged in the deleted paragraph 6. [ 8 ] In the new paragraph 9 it is alleged that after the collision of the Brink’s truck and Mr. Nguyen’s vehicle, Ms. Butler braked, steered towards the left shoulder of the highway and the front passenger side of Ms. Butler’s vehicle struck the rear driver’s side of Mr. Nguyen’s vehicle. It is alleged that at impact the two vehicles overlapped by about one meter. [ 9 ] The new paragraph 10 alleges that as a result of the collisions, Ms.

Butler’s vehicle was damaged and she suffered serious personal injuries. [ 10 ] The old paragraph 11 which contained general allegations of negligence against all three Defendants is to be replaced by a new paragraph 12 that particularizes the negligence of Brink’s. The particulars include: (

a) failing to keep the lights of the vehicle in good working order; (

b) failing to have striping installed on the rear of the truck to make it conspicuous; (

c) failing to train Mr. Dyke in the safe operation of the vehicle on the highway; (

d) failing to ensure that the lights of the Brink’s truck were on and working properly prior to driving on the highway; (

e) failing to inspect or cause Mr. Dyke to inspect the lights prior to driving on the highway; and (

f) failing to ensure that Mr. Dyke complied with the Highway Traffic Act , R.S.N.L. 1990, c. H-3 and regulations thereunder. [ 11 ] The new paragraph 13 is amended by stating that the damages of Ms. Butler were caused by Mr. Dyke or contributed to by him, and that Brink’s is vicariously liable therefor. It is further sought to be amended by adding further particulars of Mr. Dyke relating to his failure to inspect the exterior lights of the Brink’s truck and failure to ensure that the lights were on in light of the weather conditions then prevailing. It is sought to be alleged that Mr.

Dyke ought to have been driving in the “slow lane” on the right hand side, and that he ought to have turned on his hazard lights, brake lights or any other lights prior to stopping in the passing lane. It is also sought to be alleged that Mr. Dyke was negligent in not moving the Brink’s truck off the road onto the shoulder or the median. THE DEFENDANTS (BRINK’S AND MR. DYKE) ARGUE [ 12 ] Ms. Rowsell took the position, on behalf of Brink’s and Mr.

Dyke, that the proposed amendments are tantamount to not only a new cause of action but a new factual scenario - one which does not arise out of the same, or substantially the same, facts as the original cause of action. [ 13 ] Ms. Rowsell took objection to the fact that by changing the pleadings to allege that Mr. Nguyen’s vehicle wasn’t backing up,

more liability is sought to be transferred to Brink’s and Mr. Dyke for the cause of Ms. Butler’s injuries. [14] Ms. Rowsell argued that granting the Application would cause injustice to Brink’s and Mr. Dyke since they did not have thebenefit of canvassing Ms. Butler’s new version of events with Ms. Butler or the other deponents during discoveries, and that there was noopportunity to investigate the new allegations against Brink’s and Mr. Dyke. [15] Ms. Rowsell indicated that the proposed amendments would prejudice Brink’s and Mr. Dyke by completely changing theirlitigation strategy.

She indicated that her clients were relying upon the expert opinion of Mr. Nguyen’s expert that his vehicle could nothave rebounded from the impact with the Brink’s truck and traveled backwards to strike Ms. Butler’s vehicle. Ms. Rowsell’s clientsintended to rely on that report as evidence that the Plaintiff’s claim could not be proven. [16] Additionally, Ms. Rowsell indicated that the passage of time created difficulties, particularly with the memories of the personsinvolved, in attempting to garner evidence that would dispel the allegations now sought to be introduced. [17] Objection was taken by Ms.

Rowsell that some of the amendments contain evidence and not the material facts on which Ms.Butler relies in contravention of Rule 14.03 of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D. Examples include anallegation that the accident took place 1.5 kilometers west of the Allandale Road exit and that visibility was limited. [18] Finally, Ms. Rowsell asked for costs to be awarded under Column V of the Scale of Costs. THE PLAINTIFF (MS. BUTLER) ARGUES [19] Mr. MacKay indicated that the manner in which the accident between Ms. Butler and Mr.

Nguyen occurred ought to be of noconsequence to Brink’s and Mr. Dyke. He stated that the fact is that collisions occurred on a day with reduced visibility as a result of fog.Whether Mr. Nguyen backed up or didn’t back up has no bearing on the liability of Brink’s and Mr. Dyke. [20] Mr. MacKay argued that the amendments are necessary for the full determination of the case and all of the issues between theparties. He stated that the amendments do not cause injustice to the other side.

The matter is not currently set down for trial and there isplenty of time to conduct additional discoveries, if required, or to obtain additional expert reports. [21] Mr. MacKay argued that the amendments raise triable issues since they conform to new information that was received as aresult of expert reports and discoveries. Furthermore, Mr. McKay stated that the amendments are not embarrassing in the sense that termis used in the case law - i.e. the proposed amendment neither brings forward a claim that Ms.

Butler is not entitled to make use of, nordoes it leave out particular facts that would prejudice the Defendants in making a full answer and defence. [22] Mr. McKay indicated that the proposed amendments are pleaded with sufficient particularity such that the Defendants will notneed to demand particulars.

ANALYIS (CONTINUED) [23] Pursuant to Rule 15.02 of the Rules of the Supreme Court, 1986 a party may amend the body of a pleading at any time with theleave of the Court on such terms as the Court thinks fit. [24] The law in relation to this issue has been thoroughly canvased in three cases of this Court: Butler v. Kloster Cruise Ltd. (1992), (NL SC), 98 Nfld. & P.E.I.R. 138, 311 A.P.R. 138 (Nfld. S.C. (T.D.)), Petten v. E.Y.E. Marine Consultants (1994), (NL SC), 120 Nfld. & P.E.I.R. 313, 373 A.P.R. 313 (Nfld. S.C. (T.D.)), and Hollett v. St.

John’s (City), 2007 NLTD210. [25] In Petten and Hollett the Applications to amend were made in the 27th and 28th day of trial respectively and were granted. Inthis case the matter was set for trial earlier in the year but, for various reasons, was unable to proceed at that time. A new trial date hasnot been set. [26] While the Application to amend might have been made earlier in this case, its timing is not fatal in my view. [27] Justice Russell, in Butler, noted four principles that must be considered when determining whether to allow an amendment: (

a) Must not cause injustice to the other side. [28] The parties have plenty of time to respond to the proposed amendments. [29] Mr. Nguyen is not objecting to the proposed amendment concerning how Ms. Butler’s vehicle impacted with his vehicle. I donot see how the manner in which those two vehicles collided impacts the litigation strategy of Brink’s and Mr. Dyke. [30] There may, as a result of the amendments, be a need to re-examine some witness(es) on some points that are raised in theamended pleadings. There is ample time to do so. [31] The parties must remember that pleadings are simply allegations of facts.

They are not facts themselves. The Plaintiff has theburden of proving each material allegation on a balance of probabilities. If Ms. Butler alleges that the Brink’s truck was not properlymarked with reflective tape or decals, she has the burden of proving that allegation. If the Brink’s truck is no longer available and if thereare no photographs depicting the rear of the truck - the parties are left with the testimony of witnesses. If no one can remember thecondition of the back of the Brink’s truck, Ms. Butler will not have proved that allegation. The passage of time is a saw that cuts in bothdirections.

Time delays can hurt a plaintiff’s chances of success as much as it can hurt a defendant’s ability to defend the case. [32] While allowing the proposed amendments may inconvenience Brink’s and Mr. Dyke, I do not find that doing so would cause an

injustice to them. (

b) Must raise a triable issue [ 33 ] The proposed amendments, by and large, provide more particularity concerning the manner in which the motor vehicle accidents occurred and, as well, provide more particulars concerning the allegations of negligence against the parties. Whether or not Brink’s took steps to properly maintain its vehicles or train its drivers are issues which are worthy of litigation. Similarly, any steps taken to make vehicles more conspicuous during adverse weather events are equally issues worthy of litigation. Whether Ms.

Butler will be able to prove that there was some deficit in the manner that Brink’s handled these issues is a matter best decided at trial. Alleging it in an amended Statement of Claim does not make it so. (

c) Must not be embarrassing [ 34 ] The proposed amendments are not embarrassing in the sense that they neither bring forward a claim that Ms. Butler is disentitled to make, nor do they deliberately leave out facts that would make it impossible for the Defendants to defend. To the contrary, the proposed amendments set out more information, perhaps, than would be ordinarily necessary for the purpose of pleadings. [ 35 ] I find that the proposed amendments are not embarrassing in the legal sense and should not be disallowed on that basis. (

d) Must be pleaded with particularity [ 36 ] I find that the proposed amendments have been pleaded with sufficient particularity. I would be surprised if any of them give the Defendants grounds for demanding particulars. [ 37 ] As Justice Russell did in the Butler case, I recognize that the Application is made late in the proceedings (albeit not as late as it was in Petten or Hollett ).

Accordingly, I am prepared to Order that the Defendants shall have leave to file amended Statements of Defence if they so choose. [ 38 ] The Application to amend the Statement of Claim is granted. [ 39 ] The Defendants shall have their costs under Column III of the Scale of Costs. _____________________________ Vikas Khaladkar Justice