R. v. Delorey, 2012 NSCA 21

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Delorey, 2012 NSCA 21 Date: 20120223 Docket: CAC 352181 Registry: Halifax Between: Kyle Anthony Delorey Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice M. Jill Hamilton Appeal Heard: January 18, 2012 Subject: Criminal Law;

Section 249 of the Criminal Code ; Dangerous Driving

Summary: The appellant, who had been drinking, was speeding on a windy, hilly, rural two-lane highway when he was in a single car accident, killing one passenger and causing bodily harm to another. It was dark and it had been raining on and off that evening. At the time of the accident he was driving a vehicle loaned to him by the garage that was repairing his own car. He was found guilty of dangerous driving causing death and bodily harm.

Issue: Did the judge misapprehend the evidence concerning the speed the appellant was driving or hold him responsible for the poor condition of the front tires of the loaner vehicle? Result: The judge did not misapprehend the evidence concerning the speed the appellant was driving at the time of the accident. Nor did he err in holding the appellant responsible for the poor condition of the front tires. This information sheet does not form part of the court ’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 17 pages.

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Delorey, 2012 NSCA 21 Date: Decision Date 20120223 Docket: CAC 352181 Registry: Halifax Between: Kyle Anthony Delorey Appellant v. Her Majesty the Queen Respondent Judges : Hamilton, Beveridge, and Farrar, JJ.A. Appeal Heard: January 18, 2012, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Hamilton, J.A.; Beveridge and Farrar, JJ.A. concurring. Counsel: Adam D. Rodgers, for the appellant Mark Scott, for the respondent

Reasons for judgment: [1] The appellant, Kyle Anthony Delorey, appeals his convictions for dangerous driving causing bodily harm (s. 249(3)) anddangerous driving causing death (s. 249(4)). Justice Glen G. McDougall found him guilty following a retrial. The circumstances are setout in the prior decisions reported at 2010 NSSC 161, 2010 NSCA 65 and 2011 NSSC 234. I will briefly refer to the facts. Facts [2] After 10:00 p.m. on June 4, 2008, the appellant was driving a front-wheel drive Chevrolet Cobalt, loaned to him by the cardealership repairing his own similar car.

Earlier in the day he had driven the car aggressively. He was driving on a windy, hilly ruraltwo-lane highway. It was dark. There were no street lights. The pavement was generally in good condition but was wet, as it had beenraining on and off that evening. Traffic was light. He was in a single vehicle collision while navigating a left hand curve in the road. Thecar crossed the oncoming lane of traffic, became airborne, flipped over, struck the ground numerous times and severed a power pole 1.6metres above the ground, before it came to rest.

The vehicle stopped 128.6 metres from the beginning of the skid marks on the pavementand 54.4 metres from where it first became airborne. The front tires on the vehicle were in poor condition. The appellant and three of thefour passengers in the car with him, were thrown from the car. One thrown passenger died and a second received bodily harm as a resultof the injuries they received in the collision. Decision [3] The judge reserved judgment following the three day retrial. In his decision he noted the factual admissions and reviewed theevidence of each lay and expert witness in detail.

He made credibility findings and reviewed the law relating to dangerous driving,specifically referring to the leading cases of R. v. Beatty, 2008 SCC 5 and R. v. Hundal, (SCC), [1993] 1 S.C.R. 867.He considered the circumstances at the time of the accident and accepted the evidence of speed given by the three surviving passengersand Cpl. Murphy, an accident reconstructionist. The trial judge found the evidence of Dale Faulkner, a mechanical engineer qualified togive opinion evidence about crash data analysis, supported the evidence of speed and found the appellant was driving fast, if not veryfast.

He considered the appellant’s alcohol level in light of the expert’s opinion as to the effect this would have on his driving.

Heconsidered the poor condition of the front tires and found the appellant’s aggressive driving earlier in the day contributed to this. [4] Referring to the law of dangerous driving, the judge concluded the Crown proved the required actus reus and mens rea: [160] To refer again to the words of Charron, J. in Beatty, supra as re-stated from Hundal, supra: The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section,driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use ofthe place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to beat that place.” [161] Looking at the evidence of speed, weather, road conditions, the fact that the vehicle was fully loaded with five adult passengers,the presence of alcohol in the accused’s blood, one has to objectively conclude that the accused, Kyle Delorey, was operating the vehiclein a manner that was dangerous to the public. [162] I am satisfied that the Crown has proved beyond a reasonable doubt the actus reus component of the offence. [163] Turning to the requirement of proving mens rea beyond a reasonable doubt and again resorting to the words of Charron, J. inBeatty, supra:

The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied bythe required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, includingevidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care thata reasonable person would observe in the accused’s circumstances.

Moreover, if an explanation is offered by the accused, then in orderto convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and ofthe danger involved in the conduct manifested by the accused. [164] The modified-objective test established by the Supreme Court of Canada is the test that must be used to determine the requisitemens rea for negligence-based criminal offences. (See Beatty, supra, at para 7) [165] First, there must be a “marked departure” from the civil norm; a mere departure will not suffice. [166] Secondly, the modified objective test must consider the accused’s actual mental state if there is evidence of such presented.

If theaccused raises a reasonable doubt whether a reasonable person in his position would have been aware of the risks involved then he mustbe acquitted. There was no evidence presented of Mr. Delorey’s actual state of mind in the moments prior to the accident other than thathe should be able to rely on the condition of the vehicle when he took possession of it. [167] There is no evidence that Mr. Delorey actually knew of the condition of the tires prior to the accident. Nor was there a duty uponhim to check the tires when he first was given possession of it.

There can be no doubt that the poor condition of the vehicle's front tireswas a contributing factor in causing the accident. Some of that wear was attributable to the aggressive manner in which Mr. Deloreydrove the vehicle prior to the accident. [168] Although Mr. Delorey was entitled to have confidence in the reliability of the vehicle loaned to him by the dealer including thecondition of the tires, this does not explain why he decided to drive the vehicle, after having consumed alcohol, at a rate of speed thatwas excessive, especially in rainy weather conditions on wet asphalt. According to Mr.

Sinclair hydro-planing can occur even with newtires. All drivers would or at least, should know this. Mr. Delorey should have known this. [169] I am satisfied that the Crown has proved beyond a reasonable doubt that the accused’s operation of the vehicle was a markeddeparture and that a reasonable person in the position of the accused would have been aware of the risks involved. Using the modifiedobjective test the mens rea component of the two offences has been proved beyond a reasonable doubt.

Issues [5] The appellant argues the judge misapprehended the evidence with respect to the speed he was driving and erred in holdinghim responsible for the poor condition of the front tires on the loaner vehicle. Misapprehension of the evidence concerning speed [6] The legal principles to be applied to this ground of appeal are set out by Cromwell, J.A., as he then was, in R. v. S.D.D.,2005 NSCA 71: [9] This Court may allow an appeal in cases such as this if persuaded that there has been a miscarriage of justice: see s. 686(1)(a)(iii)of the Criminal Code of Canada, R.S.C. 1985, c. C-46.

A trial judge’s misapprehension of the evidence may result in a miscarriage ofjustice, even though the record contains evidence upon which the judge could reasonably convict. [10] What is a misapprehension of the evidence? It may consist of “... a failure to consider evidence relevant to a material issue, amistake as to the substance of the evidence, or a failure to give proper effect to evidence ...”: R. v. Morrissey (1995),

(ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at p. 218. ... [11] Not every misapprehension of the evidence by a judge who decides to convict gives rise to a miscarriage of justice. A convictionis a miscarriage of justice only when the misapprehension of the evidence relates to the substance and not merely the details of theevidence, is material rather than peripheral and plays an essential

part in the judge's reasoning leading to the conviction: see Morrissey,supra, at 221; R. v. Lohrer, 2004 SCC 80 , [2004] 3 S.C.R. 732; S.C.J. No. 76 (Q.L.) at paras. 1-2. [12] It follows, therefore, that to succeed on appeal, the appellant must show two things: first, that the trial judge, in fact,misapprehended the evidence in that she failed to consider evidence relevant to a material issue, was mistaken as to the substance of theevidence, or failed to give proper effect to evidence; and second, that the judge’s misapprehension was substantial, material and playedan essential

part in her decision to convict. [7] In arguing the judge misapprehended the evidence as to the speed he was driving, the appellant first says the judgemisapprehended the evidence of the three passengers concerning speed. He also argues the judge misapprehended the reliability of Cpl.Murphy’s opinion on speed, given that Cpl. Murphy failed to do certain calculations at the accident scene and changed his report. Theappellant further argues the judge misapprehended Cpl. Murphy’s evidence about on which side of the highway a speeding car wouldleave the road if control were lost on a left hand curve. Finally, Mr.

Delorey says the judge misapprehended Dale Faulkner’s testimonyconcerning the information recorded on the electronic data recorder (EDR) recovered from the loaner vehicle. [8] To deal with the appellant’s first argument, that the judge misapprehended the evidence of the three passengers concerningspeed, it is instructive to look at their testimony. [9] Robert MacEachern, the brother of the deceased passenger and the passenger who is suing the appellant for the bodily harmhe suffered in the accident, testified that the appellant was driving fast both earlier in the day and at the time of the accident: Q.

What can you say of his manner of driving? How was he driving? [generally on the day of the accident] A. He was driving it fast. Q. ...What makes you say that? What did you observe or see or... A. Just... you could tell he was driving it fast. He was driving it hard. It was a rental car and he didn’t care about it. Q. ...And first of all, on the way out [earlier in the day] . . . what’s your recollection of speed? A. The same thing, speeding. He wasn’t driving the speed limit. ... A. ...On the way over [earlier in the day] we skidded through the stop sign, the Livingstone’s Cove sign. ... Q.

Describe that for the court.

A. He was just coming up too fast for the stop sign and couldn’t get stopped in time. ... Q. ...And with respect to his braking or the manner of his driving just describe it in general? A. You know, he’d be going fast and hard on the brakes, slowing down for turns and stuff like that, right, so... ... Q. ...Based on your experience driving in that area, was the car being driven safely? A. It was being drove above the speed limit, so... ... Q. ...You say he was driving fast... [at time of accident] A. Yeah. Q. ...in that area? A.

Umhum. [ 10 ] Kai-Lee Walsh, the appellant ’ s girlfriend at the time of the accident, testified about speed: Q. ...And what, if anything, can you say about the manner in which Kyle Delorey was driving the car in terms of speed and things of that nature? A. Well, at one point I know he was going really fast because I was scared to look. Q. ...You were scared to look where? A. Out of the car. Q. And this is on the drive back? [The accident happened during the drive back.] A. Yes.

... Q. ...And do you remember anything else about um, about the drive back, if people had said anything or if anything happened? A. I know somebody had said to go faster. And I know somebody else has said slow down. I’m not sure who said it. ... Q. ...And were those the words, exact words used? A. It might have been slow the fuck down. I’m not sure. Excuse me. ... Q. ...The comments that you heard, faster and slow down or slow the fuck down, when were those in relation to the collision? A. Shortly or right before. Q. ...And you said that you were fearful because of the speed.

Can you say when that was in relation to the collision or... A. It was not long before it had happened. ... Q. All right. And just to clarify a point, my friend asked you about, about exactly when you felt Mr. Delorey was going fast. My friend, I guess, was asking you about whether it was at a point in time or for awhile. Can you just clarify that for the court? A. I know it was leading up to the crash. [ 11 ] The appellant ’ s sister, Andrea Delorey, also testified about speed: Q. ...Do you remember anything about the manner of driving or how the car was being driven on the way back in terms of its speed? A.

Fast. ... Q. Do you recall, as you were approaching that area, do you recall anyone in the car saying anything?

A. The road is windy, and I believe Robert said, watch a turn. ... Q. And do you recall anyone saying anything else? A. Patrick, you know, just tapped the seat and said go faster. ... Q. ...Those comments that you . . . heard Robert and Patrick making, can you say how close in time they were to the collision? A. Very close probably. Very close. [ 12 ] The judge took the evidence of the surviving passengers into account when he found Mr. Delorey was driving fast, if not very fast, at the time of the accident.

Before doing so, he rejected defence counsel ’ s arguments to the effect that their evidence was not reliable or credible because of their intoxication, adverse motives, inconsistent prior statements or because of their failure to put on their seatbelts, which he argued they would have done if the appellant were driving too fast. The judge, having presided over the retrial, was in the best position to make such credibility findings. Having determined their evidence with respect to speed was credible, the judge made no mistake as to the substance of their evidence and did not fail to give it proper effect.

The appellant has not satisfied me the judge misapprehended this evidence. [ 13 ] Mr. Delorey ’ s second argument is that the judge misapprehended the reliability of Cpl. Murphy ’ s opinion that he was driving very fast and in excess of the 80 kph speed limit. He argues Cpl. Murphy ’ s opinion is not reliable because he failed to do certain calculations at the accident scene and changed his report. [ 14 ] Corporal Murphy testified the car was going very fast, exceeding the speed limit of 80 kph: Q. All right.

In this case, based on what you did have and what you observed of the vehicle and the scene and the other physical evidence on scene, were you able to form an opinion what, if any, factors contributed to this collision? A. Yes, I... In my opinion, was that the vehicle had exceeded the speed limit of 80. It was going very fast. How fast, precisely, I can’t say.

But based on my experience in investigating collisions all through my service, and especially since I became a collision analyst, based on the evidence that I found, knowing that it was raining the night before and the roads were wet, the tires on the front were not in great condition to provide a whole lot of traction, I felt that the vehicle, and as well, when you consider the fact that when the vehicle left the road and became airborne ah, at that point it was still carrying enough momentum to continue forward, airborne, hitting the ground a number of times, striking a power pole, snapping it and to me that tells me that that vehicle was going at a high rate of speed. [ 15 ] During direct examination he testified he could not calculate the exact speed of the vehicle because there were no “ yaw ” marks on the pavement: Q. ...And when a vehicle is in yaw what does that mean again, .. ...

Q. So, in laymen’s terms, you’re losing control of the vehicle and it’s sliding . . . sideways and it’s still going forward? A. Yes. Q. ...And that leaves a certain type of mark on the road does it, a certain type of skid mark? A. Well, we refer to that as a side slip mark. . . . Or yaw mark. ... Q. ...And what’s the significance of yaw marks in making speed calculations? . . . In other words, is that the type of mark you have to have to make a speed calculation or... A. Well there are...

In order for us to determine the speed calculation from a mark like this there’s certain criteria that we have to satisfy ourselves of before we can begin to measure. When a vehicle is making a turn and it’s in control your rear tire as you’re making that turn is going to track inside the front tire. . . . In yaw, when the vehicle goes out of control and you’re starting to spin and turn, that rear tire is now starting to track outside the front tire. So what I’m looking for, My Lord, is where that rear tire began to track outside the front tire. This is what we refer to as the point of separation. ... Q. ...Okay.

So, just so we’re clear. That’s a certain type of mark that you have to find to be able to make a speed calculation? A. Yes. ... Q. ...In this case, when you examined the skid marks on the road were you able to find those types of skid marks? A. No. . . . I was not able to find where the, that rear tire tracked outside the front leading tire and the right tire. Q. ...And why was that? A. It just wasn’t there. It was my understanding the night before that it was raining. . . . Which could affect it. I just couldn’t see it on the pavement. ... Q.

I guess that’s the key, the particular type of mark that you were looking for was not present to allow you to make a precise speed calculation? A. That’s right.

[ 16 ] During cross-examination defence counsel suggested to Cpl. Murphy that if he had done more calculations at the accident scene he could have provided a better estimate of speed. Cpl. Murphy confirmed he could not determine speed because yaw marks were not present: Q.

Corporal Murphy, there’s when you indicate that there’s no speed calculation possible that’s essentially the reason, isn’t it, there’s these variables of the, you can’t read the skid marks, difficult to tell the distance based on, based on those skid marks, not sure about the weight of the vehicle or the strength of the pole that it impacted? there’s a lot of unknown variables and that’s why you couldn’t make a speed calculation. Correct? A. Precisely. I would, I would be able to, if I had those yaw marks I’d be able to give you a speed of a vehicle at the point that it started going into yaw. Q.

Well, let’s look at... There’s a number of things that you’d normally look at. From your level 2, or sorry level 3 training you’d be looking at, you’re trained in these technical areas to look at the gravity, the coefficient of friction, measuring of distance, centre of mass, reaction time, combined speeds, critical curve, all these, all these elements would go into an analysis for speed wouldn’t they? A. Most of those elements would go into analysis of speed. Q. Yes A. A yaw mark, yeah. Q. But because of the nature of this scene you weren’t able to use your training to make that kind of calculation? A.

I did not have the skid marks that I needed to make that calculation, no. Q. Okay. A. ...But, my analysis at the scene would, you know, to determine how fast that vehicle was going at the point where it lost control I would need yaw marks. I’d need that separation point where the right tire out tracked from front tire, and I didn’t have it. [ 17 ] The appellant ’ s argument that Cpl. Murphy ’ s opinion concerning speed is not reliable because he did not do more calculations at the accident scene is unfounded.

His uncontested evidence was that the calculations suggested by defence counsel were not available. [ 18 ] The appellant ’ s second argument relating to the reliability of Cpl. Murphy ’ s opinion, focusses on the fact the copy of his report entered as an exhibit at the retrial differed from the copy entered at the first trial. [ 19 ] When cross-examined about the differences in the two copies, Cpl. Murphy explained: A. Yeah. I’m thinking what might have happened is ah, I printed off the wrong copy for this trial. The ah, this would have been the original draft I sent off to, to for review.

And when I printed it off here the other day, I printed off the wrong one. That’s the only explanation I can think of.

Q. So, sorry, you printed off the wrong one for this, for today you mean? A. For this trial, yes. ... A. ...I ended up including the wrong one. [ 20 ] The judge was entitled to accept, as he did, Cpl. Murphy ’ s uncontested explanation of the differences in the copies. The appellant has not satisfied me the judge misapprehended the reliability of Cpl. Murphy ’ s opinion concerning the speed he was driving at the time of the accident. Side of Highway [ 21 ] The appellant ’ s third argument is that the judge misapprehended Cpl.

Murphy ’ s evidence concerning from which side of the highway a speeding car would leave the road if control were lost on a left hand curve. He incorrectly suggests Cpl. Murphy testified the car would leave the road on the right hand side. [ 22 ] When Cpl. Murphy was asked about this, he stated that steering could play a role and concluded that it is difficult to say whether a car would leave the road on the right hand side in such a situation: Q. ...But in either case, if the vehicle was exceeding the critical curve limit in this case, you would expect that it would go off to the right? A. Um... Q.

All other things, all other things aside, if it’s just a vehicle exceeding the critical curve speed, you would expect it to keep going straight, not make the turn and go off to the right? A. That ’s, that ’s a difficult question to answer . [Emphasis added] [ 23 ] There was no other evidence before the judge on this point. I am satisfied the judge did not misapprehend Cpl. Murphy ’ s evidence on this point or err in not accepting defence counsel ’ s theory that a speeding car would leave the road on the right hand side, rather than the left, if control is lost on a left hand curve.

Dale Faulkner ’ s evidence [ 24 ] The appellant ’ s final argument concerning the judge misapprehending the evidence relating to speed, is that he misapprehended Dale Faulkner ’ s evidence about the information recorded on the EDR recovered from the loaner vehicle that related to the last five seconds prior to the car striking the power pole. The judge initially detailed Mr. Faulkner ’ s evidence in his decision as he did the evidence of each witness.

Later, when reaching his conclusion that the car was being driven fast, if not very fast, the judge accepted the evidence of speed given by the three surviving passengers and Cpl. Murphy and found that Mr. Faulkner ’ s evidence supported their testimony: [151] The analysis of the vehicle’s electronic data recorder – the so-called “black box” – performed by Dale Faulkner also supports Cpl. Murphy’s conclusions as well as the subjective assessments of speed of the three passengers. Forgetting for a moment the speed of

the vehicle as taken off the transmission, at five seconds before contact with the power pole the vehicle’s accelerator was 96% depressed and the throttle was 100% open. At four seconds before, the accelerator was still 96% depressed and the throttle remained completely opened at 100%. It was only at the three second-mark prior to the time of impact with the power pole that pressure was removed from the accelerator allowing the throttle to begin closing. [ 25 ] The appellant suggests Mr.

Faulkner testified that the information recorded on the EDR only related to the time the car was airborne or rolling, rather than to when it was being driven on the road prior to the accident. On that basis, he argues the judge misapprehended Mr. Faulkner ’ s evidence. [ 26 ] The appellant overstates Mr. Faulkner ’ s testimony. When defence counsel suggested to Mr. Faulkner that the five seconds of data on the EDR related only to the time when the car was airborne, Mr. Faulkner stated it would be difficult for the car to be airborne for that length of time.

Defence counsel then suggested to him that this data may only relate to the time the car was airborne, striking the ground and rolling over prior to hitting the power pole. Mr. Faulkner agreed this was conceivable, but that it would be necessary to study the accident scene to determine if that were the case here. Mr. Faulkner did not testify that the car was not being driven on the road within the five seconds in which the data was recorded. [ 27 ] Given the equivocal nature of Mr. Faulkner ’ s testimony, it was open to the judge to find, as he did, that Mr.

Faulkner ’ s evidence concerning the depression of the accelerator and the position of the throttle in the five seconds prior to the car hitting the power pole, supported the evidence of speed given by the surviving passengers and Cpl. Murphy. The appellant has not satisfied me the judge misapprehended Mr. Faulkner ’ s evidence or any evidence concerning speed in reaching his verdict or that there has been a miscarriage of justice. Responsibility for the poor condition of the front tires [ 28 ] The appellant also argues the judge erred by holding him responsible for the poor condition of the front tires.

He argues the judge misapprehended David Sinclair ’ s (auto mechanic) evidence about the wear and tear on the front tires that can be caused by driving a front wheel drive vehicle hard. He says blaming him for the condition of the front tires is contrary to the direction of this Court in the appeal from his first trial. [ 29 ] The judge found the appellant should have known his rough handling of the loaner vehicle would cause wear and tear on the front tires and that this should have caused him to drive more slowly.

Robert MacEachern, Carmen Novak and Michael Novak each testified about the appellant ’ s hard driving of the loaner vehicle on the day of the accident. Mr. Sinclair testified that hard driving can contribute to wear and tear on tires: Q. Mr. Sinclair, my friend asked you in cross-examination, you said if you had, I think three to six hard starts on asphalt um, what effect would that have? And you said it wouldn’t have worn a new tire down to the level that you saw on these tires. A. Not to that extent, no. Q. Would it have worn new, or any tire down at all? A.

It would take a considerable amount of wear off the tire, yes . [Emphasis added] [ 30 ] No one challenged Mr. Sinclair ’ s expertise to give such evidence. [ 31 ] I am satisfied the judge did not misapprehend Mr. Sinclair ’ s evidence about the wear and tear on the front tires that can be caused by hard-driving when he stated: [156] The expert mechanic – Mr. David Sinclair – testified that three to six hard starts on asphalt on new tires would not result in the

amount of wear and tear he found on the tires he inspected. But he did say it would contribute to the wear. [ 32 ] The appellant ’ s final argument on this issue is that the judge acted contrary to the direction of this Court ’ s earlier decision, when he found that his hard driving contributed to the wear on the front tires. [ 33 ] This Court ordered a new trial for the appellant following his first trial because the judge at the first trial erred in law by finding there was a duty of care on Mr.

Delorey to inspect the condition of the loaner vehicle tires: [49] The question is whether a reasonable person in his situation ought to have been aware of the risk. In my view, a reasonable person taking delivery of a loaner vehicle from a car dealership which is responsible for that vehicle would not have been aware of the risk that its tires were below minimum standards. As the appellant submits, the moment that a vehicle leaves a car dealership, after having been in the dealership’s possession and under its care, should be the time when a consumer is most able to rely on the workmanship of the dealer.

He should be able to presume that a loaner vehicle meets the standards for safety inspection. With respect, the judge erred in law in finding that there was a duty of care upon the appellant to inspect the condition of the loaner vehicle tires. Even if there was such a duty, he erred in finding a breach of that duty constituted a marked departure from the standard expected of a reasonably prudent person and hence blameworthy conduct amounting to dangerous driving. [Emphasis added] [ 34 ] McDougall, J., found no such duty: [159] I will not go so far as to say there was a duty on Mr. Delorey to check the tires.

The Court of Appeal has clearly stated that he did not. [ 35 ] This argument has no merit. I would dismiss the appeal. Hamilton, J.A. Concurred in: Beveridge, J.A. Farrar, J.A.