Supreme Court Judgments

Supreme Court of Canada

Feener v. McKenzie, [1972] S.C.R. 525

Date: 1971-10-05

Rodney Charles Feener, by his next friend, Charles Feener (Plaintiff) Appellant;

and

Dewar Forrest McKenzie (Defendant) Respondent.

1971: March 23; 1971: October 5.

Present: Ritchie, Hall, Spence, Pigeon and Laskin JJ.

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA, APPEAL DIVISION

Motor vehicles—Negligence—Plaintiff injured on impact with defendant’s automobile after coasting down slope on sled—Plaintiff’s head protruding over edge of paved street when struck—Onus of proof that injury did not entirely or solely arise through defendants negligence—Charge to jury—Misdirection—Motor Vehicle Act, R.S.N.S. 1967, c. 191, s. 221(1)(a) and (b).

The plaintiff, a five-year-old boy, met with a serious accident while playing with a group of children who were using a sled to coast down a snow-covered slope which abutted on a paved street. Several of the children had coasted towards the street but a ridge of snow at the foot of the incline served as a barrier and the ride stopped at this barrier. However when the plaintiff who was the youngest and the last to coast down the slope came to this barrier, the sled mounted the ridge and carried the boy over and to the edge of the pavement. The sled did not reach the pavement but the plaintiff’s head protruded slightly over the edge of the pavement where it was struck by the defendant’s automobile.

The defendant, then 20 years of age, was driving in a southerly direction, and, according to him, his speed was from 20 to 25 miles an hour. There was no other traffic in the street. The defendant had a beginner’s licence but was not accompanied by a licensed driver or chauffeur as required by s. 62(1) of the Motor Vehicle Act, R.S.N.S. 1967, c. 191. He testified that when he was some 325 feet from where the impact occurred he saw some children at the top of the incline. He did not purport to keep them in view but said that when about 25 feet from the point of impact he saw an object moving down the incline from his right and about 25 feet from the road. He did not keep this object

[Page 526]

in view but said he applied his brakes and swerved to the left. The right rounded corner of the front bumper and the right front wheel struck the plaintiff’s head, severely injuring him, causing brain damage which permanently disabled him.

The plaintiff’s action was dismissed at trial in accordance with the jury’s finding that there was no fault or negligence on the part of the defendant which caused the accident. An appeal from the trial judgment was dismissed by the Court of Appeal and the plaintiff then appealed to this Court.

Held (Ritchie and Pigeon JJ. dissenting): The appeal should be allowed and a new trial directed.

Per Hall J.: Under s. 221(1) (a) and (b) of the Motor Vehicle Act, supra, where any injury is incurred by any person by reason of the presence of a motor vehicle upon a highway, the onus of proof that such injury “did not entirely or solely arise through the negligence or improper conduct” of the owner or operator is upon the owner or operator of the motor vehicle. “The onus… is not… a shifting or transitory [one]: it cannot be displaced merely by the defendant giving some evidence that he was not negligent, if that evidence, however credible, is not sufficient reasonably to satisfy the jury that he was not negligent: the burden remains on the defendant until the very end of the case, when the question must be determined whether or not the defendant has sufficiently shown that he did not in fact cause the accident by his negligence.” Accordingly, the trial judge had misdirected the jury on a most vital aspect of the case when he told them that “the moment he [the driver] can prove he was not entirely or solely to blame, then the burden falls back upon the pedestrian to prove that the driver was responsible.”

As the plaintiff also contended, the trial judge misdirected the jury in two other respects: (1) In expressing his opinion on the question of liability as he did, he virtually withdrew the question of. liability from the jury’s consideration; (2) In withdrawing from the jury’s consideration the issue as to the defendant being in violation of s. 62(1) of the Motor Vehicle Act.

Apart from these contentions, the case of the plaintiff was never put properly to the jury. The trial judge assumed and permitted the jury to assume that the defendant’s version of what actually happened was not subject to challenge. However, his

[Page 527]

evidence (1) that he was driving in the centre of the right lane was not in accordance with the other proven facts, and (2) that he swerved when 25 feet away must be doubted because if he had swerved to his left at this distance he could not have hit the boy.

Per Spence J.: For the reasons pointed out by Hall J., namely, the direction of the trial judge given in reference to s. 221(1) (a) and (b) of the Motor Vehicle Act was plainly wrong, and, secondly, that the trial judge misdirected the jury in that he failed to point out certain defects in the defendant’s evidence, the appeal should be allowed and a new trial ordered. No view was expressed upon the effect of the breach of s. 62(1).

Per Laskin J.: Agreement was expressed with Hall and Spence JJ. that the appeal should be allowed and a new trial ordered. This result followed from the reasons given by them but without need to rely on s. 62(1).

Per Ritchie and Pigeon JJ., dissenting: The effect of s. 221(1) (b) is to create a rebuttable presumption that the injury arose “entirely or solely” through the negligence or improper conduct of the operator of the motor vehicle. This presumption against the operator remains until the very end of the case, but it is a presumption which can be rebutted either in whole or in part, and if after all the evidence has been heard the jury is satisfied that the operator was only partly to blame, then the fault is to be divided in accordance with the provisions of the Contributory Negligence Act. If, on the other hand, the jury is satisfied on the whole of the evidence that there was no fault on the part of the operator which caused the accident, the plaintiff’s action must be dismissed. The charge of the trial judge was not such as to suggest to the jury that the burden of proof shifted as the case progressed and there was no misdirection in this regard which could have affected the verdict as found by the jury.

With respect to s. 62(1), there was no evidence to support the plaintiff’s contention that the defendant’s failure to have a licensed driver in the seat beside him was a causative factor in the resulting collision. As to the further contention that the trial judge misdirected the jury as to what constituted negligence under the circumstances, while there were some passages in his charge which could be characterized as “misdirection” if they were to be considered in isolation, nevertheless when these passages

[Page 528]

were read in their context as part of the whole charge, they did not carry a meaning which could be said to amount to misdirection, and even if they could be said to carry such a meaning, no substantial wrong or miscarriage was occasioned thereby.

There was ample evidence to support the verdict and although in the result it left the infant plaintiff without compensation, it was neither unreasonable nor unjust.

[Dearing v. Hebert, [1957] S.C.R. 843; Winnipeg Electric Co. v. Geel, [1932] A.C. 690, applied; Tuckey v. Dyer (1961), 27 D.L.R. (2d) 408, referred to]

APPEAL from a judgment of the Supreme Court of Nova Scotia, Appeal Division[1], dismissing an appeal from the judgment at trial by Dubinsky J. with a jury dismissing the appellant’s action. Appeal allowed and new trial ordered, Ritchie and Pigeon JJ. dissenting.

E. R. Saunders, for the plaintiff, appellant.

L.A. Bell, Q.C., and H.E. Wrathall, for the defendant, respondent.

The judgment of Ritchie and Pigeon JJ. was delivered by

RITCHIE J. (dissenting)—This is an appeal from a judgment of the Appeal Division of the Supreme Court of Nova Scotia1, dismissing an appeal from a judgment given at trial before Mr. Justice Dubinsky sitting with a jury, whereby the appellant’s action was dismissed in accordance with the finding of the jury that there was no fault or negligence on the part of the respondent which caused the accident in which the appellant, a five-year-old boy, sustained terrible and probably permanent injuries.

The evidence of the circumstances giving rise to this action has been carefully reviewed in the course of the reasons for judgment delivered by Mr, Justice Cooper on behalf of the Appeal Division, and it discloses that on the afternoon of February 2, 1967, the infant appellant was playing with a small group of other children on a snow-covered slope which runs down to North

[Page 529]

King Street, a street running north and south in the Town of Bridgewater, Nova Scotia.

The children had only one sled among them and during the afternoon they had been coasting down the slope towards the street which was lined with a small snow bank created by the sweeping of a snow plough. The sled was only about four inches in height, and in the course of their coasting the children had worn a groove down the slope leading to the street for a distance of 58 or 59 feet. This groove apparently ended at the snow bank by the side of the road which had been the “end of the run” throughout the afternoon’s coasting, but at about 5 o’clock the infant appellant, in coasting down the groove “tipped over” the top of the snow bank so that his head projected into the street where it came in contact either with the wrap‑around section of the front bumper or with the right front tire of the motor vehicle then being driven by the respondent in the direction of Halifax.

The respondent had been visiting his parents who lived about 13 miles outside of Bridgewater and was returning to his place of work in Dartmouth. At the time of the accident the road was slippery and the respondent was travelling at between 20 and 25 miles an hour. As he approached the scene of the accident, he saw the children playing on the hillside from a distance of about 325 feet, and when he was about 25 feet from the point of collision he saw what he described as “an object” moving down the hill at what looked to him to be about 25 feet from the road. These distances must of necessity be the roughest kind of estimate and it is highly probable that the “object” was more like 10 feet from the road when the respondent first saw it, but in any event it was so close that the respondent immediately cut his wheels to the left and applied his brakes. It was then that he heard a bump which seemed to come from his front wheel. The back end of his car skidded to the left and turned around, ending up on the same side of the road but facing in the direction from which he had come. When the car came to rest he immediately got out to find the infant appellant lying on the pavement.

The course of events immediately before and at the time of the accident was observed by an

[Page 530]

impartial and mature householder who happened to be watching the children at play and who had an excellent view of the street. This witness, in the course of his direct examination, described what he saw of the accident as follows:

Q. Did you see anything happen to Rodney at a little later time?

A. Five or a little after, he laid on his sled and he coasted out. They did that for quite some time. This time he went out over the ditch, in the old snow, you know, the kids sort of wore it down I guess from coasting on it. This time he went out over it.

The same witness testified on cross-examination:

Q. Now, the car that you saw at the time the sled and the car came in contact, the car was completely on the pavement?

A. It was, yes.

Q. Pardon?

A. It was.

Q. And what part of the boy came in contact with the car?

A. It was just his head.

Q. The boy’s head and the boy’s head was in contact with the side of the side of the right front of the car?

A. With the front bumper.

Q. Or back of the bumper perhaps, the wheel part—

A. Where it went around.

Evidence was also given by the appellant’s young companions and Arnold Wallfield, a boy of 12 years old, testified as follows on cross-examination:

Q. Arnold, as you saw Rodney and the car come together was it Rodney’s head that hit the right side of the car at the front, right?

A. Yes.

Q. And the car when you saw it at the time that happened was on the pavement down below?

A. Yes.

Constable Meisner of the Bridgewater Police, attended the scene of the accident directly after

[Page 531]

it had happened and in describing the condition of the respondent’s car he testified as follows on cross-examination:

Q. You also examined, I believe, the right side of that car including the right sides of the tires for scuff marks. Did you find a scuff mark?

A. Scuff mark on the right front tire.

Q. On the side of the right front tire?

A. On the side of the right front tire.

Q. If you look at a car from the front, you see its bumper?

A. Yes.

Q. Take that 1964 Chevrolet, you see its bumper and the bumper curves around the side?

A. Yes.

Q. Wraparound bumper, so-called?

A. Yes.

Q. And then back of the bumper tip again on each side of the front are the two wheels?

A. Yes.

Q. The wheels and the tires. Now on what part of that car or on what part of the right front wheel did you see the scuff marks?

A. On the tire part of the front wheel.

Q. On the tire, on the side—the outside of the right front tire?

A. Yes.

Q. Right?

A. Right.

In summary, therefore, the sequence of events appears to me to have been that the respondent, who was travelling at a moderate speed on his own side of the road, first saw a group of children playing on the top of a slope about 58 feet from the highway on his right‑hand side when he was 325 feet away and seeing an object coming down the slope close to the road he cut his wheels and applied his brakes, and he then heard a bump on the right side of his car and found that the head of the young appellant had shot out into the highway and come in contact with the right side of his car.

As I have indicated, the jury found that there was no fault or negligence on the part of the respondent, and I agree with Mr. Justice Cooper that there were no grounds to justify a finding that this verdict was perverse so that there only

[Page 532]

remains the question of whether the learned trial judge so misdirected the jury as to require a new trial. The misdirection alleged by the appellant relates primarily to the way in which the trial judge explained the effect of the provisions of s. 221(1) of the Motor Vehicle Act, R.S.N.S. 1967, c. 191. The section reads as follows:

221. (1) Where any injury, loss or damage is incurred or sustained to any person by reason of the presence of a motor vehicle upon a highway, the onus of proof

(a) that such injury, loss or damage did not entirely or solely arise from the negligence or improper conduct of the owner of the motor vehicle, or of the servant or agent of such owner acting in the course of his employment and within the scope of his authority as such servant or agent;

(b) that such injury, loss or damage did not entirely or solely arise from the negligence or improper conduct of the operator of the motor vehicle;

shall be upon the owner or operator of the motor vehicle.

After having read this section to the jury, the learned trial judge made the following comment:

What I have read to you now is only in the case of a driver and a pedestrian. If there is a collision between a motorist and a pedestrian, the burden is upon the motorist to establish that he was not entirely or solely to blame. The law says to him, you have got to establish that you were not entirely or solely to blame for this accident. That is the burden upon Mr. McKenzie in this case. That is the burden which his lawyers have accepted. They have accepted the challenge. They say, yes, we have to prove that.

But I tell you this as a matter of law in the province of Nova Scotia, our Supreme Court has said this. The moment that the driver the operator, proves that the pedestrian was either at fault entirely or partly at fault; the moment he can prove he was not entirely or solely to blame, then the burden falls back upon the pedestrian to prove that the driver was responsible.

The effect of the provisions of s. 221(1) has been the subject of extensive and sometimes con-

[Page 533]

flicting comment in the Courts of Nova Scotia and it is, I think, as well to indicate something of the history of that section.

The predecessor of s. 221 was s. 180 as enacted by 1932 (N.S.), c. 6, by which it was provided that:

180. Where any injury, loss or damage is incurred or sustained by any person by reason of the presence of a motor vehicle upon a highway, the person sustaining such injury, loss or damage shall be entitled to recover the amount thereof in any court of competent jurisdiction from either:

(a) The owner, unless he shall establish that such injury, loss or damage was not caused by any negligence or wrongful act of his or of a person operating such motor vehicle in the course of his employment as a servant or agent of said owner; or

(b) The operator of such motor vehicle, unless such operator shall establish that such injury, loss or damage was not caused by any negligence or wrongful act of his.

It will be observed that the burden placed on the operator of a motor vehicle under that section is to establish that the “injury, loss or damage was not caused by any negligence or wrongful act of his”, whereas s. 221(1) requires proof that the loss did not “entirely or solely arise from the negligence or improper conduct of the operator…”. (The italics are my own.)

In 1934 the case of Poole and Thompson Ltd. v. McNally[2], was decided in this Court. That case turned upon the meaning and effect of s. 65(1) of the Prince Edward Island Highway Traffic Act which provided:

When loss or damage is sustained by any person by reason of a motor vehicle upon a highway the onus of proof that such loss or damage did not arise through the negligence or improper conduct of the owner or driver shall be upon the owner or driver.

Although it was found that in the circumstances disclosed by the evidence a finding of contribu-

[Page 534]

tory negligence could not reasonably have been made against the plaintiff, Mr. Justice Crocket saw fit to consider the effect which the section would have had if there had been such a finding, and in the course of so doing he said:

The most a finding of contributory negligence on the part of the plaintiff could be said to prove, had such a finding been made, would be that the injury was not entirely or solely caused by Sentner’s [the driver] negligence or misconduct. This in my opinion would not have been enough to discharge the onus stated in the subsection. Proof that his negligence or improper conduct did not entirely or solely cause the injury claimed for, is not proof that the injury “did not arise through” his negligence or improper conduct, which is the fact the subsection explicitly enacts must be proved in order to rebut the statutory presumption which it creates, unless indeed these controlling words of the subsection are construed to mean “did not entirely or solely arise through” the negligence or improper conduct of the owner or driver. I cannot think, having regard to the reason and purpose of the enactment and the context in which the words are used, that they are reasonably capable of any such construction.

It appears to me to be more than coincidental that the words “entirely or solely” were added to the Nova Scotia section after the decision in that case (1936, c. 44, s. 1) and it was the addition of these words which gave rise to the difficulty reflected in the Nova Scotia decisions where contributory negligence is involved. The decisions to which I refer are all reviewed in the very comprehensive judgment of Mr. Justice Coffin in Tzagarakis v. Stevens[3], and are highlighted by the difference of opinion between the decision of Chief Justice Ilsley in Tuckey v. Dyer[4], and MacDonald J. in Lloy v. Nova Scotia Light & Power Co. Ltd.[5] In the course of his reasons for judgment, Chief Justice Ilsley said:

But a careful study of a recent case in the Supreme Court of Canada, Dearing v. Hebert, [1957] S.C.R. 843, satisfied me that the defendant does not discharge the statutory onus by simply proving that

[Page 535]

there was negligence on the part of the plaintiff which caused or contributed to the collision.

MacDonald J. on the other hand, expressed himself as follows at p. 264, after quoting from the judgment of this Court in McMillan v. Murray[6]:

This is clear authority that contributory negligence—in the proper sense—does discharge the defendant’s onus under the original form of provision.

In the case of Dearing v. Hebert, this Court had to consider the effect of s. 44(1) of The Vehicles and Highway Traffic Act, R.S.A. 1942, c. 275, which is in similar terms to s. 221(1) (b) of the Nova Scotia statute and which contains the words “did not entirely or solely arise through the negligence or improper conduct of the owner or driver of the motor vehicle”. I agree with what was said by Mr. Justice Locke in the course of his reasons for judgment in that case,, in which he reached the same conclusion as the majority of the Court and where he had occasion to say, at p. 846:

The effect of the section cannot, in my opinion, be distinguished from the section of the Motor Vehicle Act of Manitoba considered by the Judicial Committee in Winnipeg Electric Company v. Geel, [1932] A.C. 690, where its practical application is defined.

This same view was expressed by the majority of this Court in Manitoba Power Commission v. Adams[7], where s. 81(1) of The Highway Traffic Act, R.S.M. 1940, c. 93 was under consideration and the Geel case was applied notwithstanding the fact that the onus section contained the words “entirely or solely”.

The relevant portions of the section under review in the Geel case read as follows (Manitoba Motor Vehicle Act, CAM. 1924, c. 131, s. 62):

When any loss, damage or injury is caused to any person by a motor vehicle the onus of proof that such loss damage or injury did not arise through the negligence or improper conduct of the owner or driver of the motor vehicle… shall be upon the owner or driver of the motor vehicle.

[Page 536]

I am in further agreement with the reasons for judgment of Mr. Justice Locke in the Dewing case, supra, where he adopted the language used by Lord Wright in the Geel case, which is also referred to by Mr. Justice Cooper in the present case. I think it desirable, however, to reproduce the full context of Lord Wright’s statement which occurs at p. 695 of the report:

Apart from the section, a plaintiff claiming damages for personal injury in a running-down case would have to prove that he was injured, that his injury was due to the defendant’s fault and the fact and extent of his loss and damage; hence, unless he succeeded in establishing all these matters, he must fail. In virtue, however, of the statute he need only establish the first and the third elements—i.e., that he was injured by the defendant and the extent of his damages; as to the second, the onus is removed from his shoulders, and if he establishes the two matters in respect of which the onus still remains on him, he may close his case, because it is then for the defendant to establish to the reasonable satisfaction of the jury that the loss, damage or injury did not arise though the negligence or improper conduct of himself or his servants. This the defendant may do in various ways, as for instance, by satisfactory proof of a latent defect, or by proof that the plaintiff was the author of his own injury; for example, by placing himself in the way of the defendant’s vehicle in such a manner that the defendant could not reasonably avoid the impact, or by proof that the circumstances were such that neither party was to blame, because neither party could avoid the other. But the onus which the section places on the defendant is not in law a shifting or transitory onus: it cannot be displaced merely by the defendant giving some evidence that he was not negligent, if that evidence, however credible, is not sufficient reasonably to satisfy the jury that he was not negligent: the burden remains on the defendant until the very end of the case, when the question must be determined whether or not the defendant has sufficiently shown that he did not in fact cause the accident by his negligence. If, on the whole of the evidence, the defendant establishes this to the satisfaction of the jury, he will be entitled to judgment; if, however, the issue is left in doubt or the evidence is balanced and even, the defendant will be held liable in virtue of the statutory onus, whereas in that event but for the statute the plaintiff would fail, because but for the statute the onus would be on him. A fortiori the defendant will be held liable if the evidence actually establishes his negligence.

[Page 537]

No doubt the question of onus need not be considered if at the end of the case the tribunal can come to a clear conclusion one way or the other, but it must remain to the end the determining factor unless the issue of negligence is cleared up beyond doubt to the satisfaction of the jury.

There does not appear to be any serious difference between counsel in the present case as to the practical application of this language in giving effect to s. 221 of the Nova Scotia Motor Vehicle Act.

Counsel for the appellant, however, contended that the learned trial judge’s charge to the jury was defective in that he had told them that the moment that the operator of a motor vehicle “can prove he was not entirely or solely to blame then the burden falls back upon the plaintiff to prove that the driver was responsible”. It is suggested that this language was such as to indicate to the jury that the section created a “shifting or transitory burden which could be displaced by the defendant giving some evidence that he was not negligent”.

In considering this criticism it is to be remembered that the learned trial judge was addressing the jury after all the evidence had been heard, and when the impugned language is considered in the context of the charge as a whole, it seems to me to be unrealistic to suggest that the jury were left with the impression that the onus was a transitory or shifting one.

In my opinion the effect of s. 221(1)(b) of the Motor Vehicle Act in the trial of an action where damages are claimed for an injury sustained by any person by reason of the presence of a motor vehicle upon a highway, is to create a rebuttable presumption that such injury arose “entirely or solely” through the negligence or improper conduct of the operator of the motor vehicle. This presumption against the operator remains until the very end of the case, but it is a presumption which can be rebutted either in whole or in part, and if after all the evidence has been heard the jury is satisfied that the operator was only partly to blame, then the fault is

[Page 538]

to be divided in accordance with the provisions of the Contributory Negligence Act. If, on the other hand, the jury is satisfied on the whole of the evidence that there was no fault on the part of the operator which caused the accident, the plaintiff’s action must be dismissed. The question of whether, and to what extent, the presumption has been rebutted is one which can only be determined at the conclusion of the case.

I agree with Mr. Justice Cooper that the charge which the learned trial judge delivered at the conclusion of this case was not such as to suggest to the jury that the burden of proof shifted as the case progressed, and like the Court of Appeal, I do not think that there was any misdirection in this regard which could have affected the verdict as found by the jury.

It appears to me that the jurors in the present case must have concluded, after having heard all the evidence, that the infant plaintiff had placed “himself in the way of the defendant’s vehicle in such a manner that the defendant could not reasonably avoid the impact” and under these circumstances they did not have to be concerned with any question of contributory negligence.

The appellant also contended that the respondent was negligent in that at the time and place in question he was driving alone with no more than a beginner’s licence which, under the terms of s. 62(1) of the Motor Vehicle Act, only entitled him “to drive a motor vehicle upon the highways, when accompanied by a licensed operator or a licensed chauffeur who is actually occupying a seat beside the driver and there is no other person in the vehicle”. In dealing with this contention the learned trial judge told the jury that they need not consider it as weighing “in the slightest against” the respondent unless they thought that the evidence showed that he operated his car improperly. The learned trial judge went on to say:

Because a breach of a statutory duty, a breach of a duty under the Motor Vehicle Act or any act in Canada, is not of itself a ground for imposing liability unless the failure was a causative factor in the resulting accident. The breach of the statute, the

[Page 539]

fine that you paid, if that had nothing to do with the actual accident itself, then you are not responsible simply because you did not have a license because a man can go out and have the best license in the world and everything and be negligent and a person without a license can drive carefully.

I agree with the learned trial judge’s direction in this regard and I do not think that there is any evidence to support the appellant’s contention that the respondent’s failure to have a licensed driver in the seat beside him was a causative factor in the resulting collision. The suggestion that he might have had a better “look-out” if he had been accompanied by such a driver appears to me to be highly speculative.

It was further contended on the part of the appellant that the learned trial judge misdirected the jury as to what constituted negligence under the circumstances. In this regard I agree with Mr. Justice Cooper that when consideration is given to the fact that the trial judge quoted to the jury that passage from Lord MacMillan’s judgment in Fardon v. Harcourt-Rivington[8], in which he correctly stated the law of negligence as applicable to motor owners and pedestrians, it cannot be said that there was any misdirection as to the meaning of negligence which could justify the granting of a new trial. While there are some passages in the charge to the jury which could be characterized as “misdirection” if they were to be considered in isolation, I am none the less satisfied that when these passages are read in their context as a part of the whole charge, they do not carry a meaning which could be said to amount to misdirection, and even if they could be said to carry such a meaning, no substantial wrong or miscarriage was occasioned thereby and the Appeal Division would have been exceeding its powers if it had granted a new trial having regard to the provisions of O. 37, r. 6 of the Rules of the Supreme Court of Nova Scotia which provide, inter alia, that:

6. A new trial shall not be granted on the ground of misdirection… unless in the opinion of the court… some substantial wrong or miscarriage has been thereby occasioned in the trial…

[Page 540]

The appellant also contended that the verdict was against the weight of the evidence, and in this regard I think it desirable to reproduce the much-quoted statement from the reasons for judgment of Sir Lyman Duff in McCannell v. McLean[9], where he said at p. 343:

It seems desirable, however, to add a word or two in respect of the principle on which this Court acts in setting aside the verdict of a jury, as against the weight of evidence, with a view to granting a new trial or giving judgment in favour of one of the parties.

The principle has been laid down in many judgments of this Court to this effect, that the verdict of a jury will not be set aside as against the weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it. That is the principle on which this Court has acted for at least thirty years to my personal knowledge and it has been stated with varying terminology in judgments reported and unreported.

As I have said, the evidence indicates that the appellant and his young friends had been coasting down the hillside for some time and stopping at the snow bank by the side of the highway, and the main question to be determined is whether, when the infant appellant had the misfortune to tip over the bank so that his head projected into the highway and hit the side of the respondent’s car, there was any fault or negligence on the part of the respondent which caused the collision. Some of the subsidiary questions which immediately come to mind are:

(i) Whether the respondent should have been alerted to potential danger when he saw the children playing on the crest of the hill and whether his failure to reduce speed at that time was a cause of the accident;

(ii) whether the respondent was negligent in applying his brakes on the somewhat icy pavement when he saw an object coming down the hill towards the highway at a distance of 25 feet.

[Page 541]

These questions have in my opinion been answered by the jury’s finding that there was no negligence on the part of the respondent which caused the accident, and in light of the decision in McCannell v. McLean, supra, and many other cases, I do not consider it to be any part of my duty to comment on the facts except to say that there was, in my opinion, ample evidence to support the verdict and that although in the result it leaves the infant plaintiff without compensation, it was neither unreasonable nor unjust.

For all these reasons I would dismiss this appeal with costs.

HALL J.—This is an appeal from the judgment of the Appeal Division of the Supreme Court of Nova Scotia[10] which dismissed an appeal by the appellant from the judgment at trial by Dubinsky J. with a jury dismissing the action.

The basic facts are that about 5:00 p.m. on February 2, 1967, the infant, Rodney Charles Feener, then five years and eight months old was playing with some older companions on property abutting North King Street in Bridge-water, Nova Scotia. The children were using a small sled about four inches in height to coast down a snow-covered terraced front lawn area towards the street. The starting point was at the upper terrace some 60 feet from the street. North King Street had been plowed clear of snow, and in doing this a ridge of snow accumulated at the west edge of the shoulder. The street was 30 feet in width from shoulder to shoulder with the paved surface 20 feet in width according to the plan filed at the hearing. The entire paved surface was clear of snow, and although there was some moisture on the surface the street was not particularly slippery according to the evidence of the witness Weagle who said:

Q. You arrived home about half past four?

A. Yes.

[Page 542]

Q. Did you have any trouble, operating your car when you arrived home at half past four?

A. No. It was a little slippery but I had no trouble.

and that of Dr. Scantlebury whose evidence in this regard was:

Q. Can you describe the condition of the highway, that is on North King Street, as you were getting there?

A. All I can really remember is that I didn’t have that much trouble driving myself. I honestly can’t remember the road condition. I do recall I didn’t have that much trouble driving up and stopping. I remember quite well coming to a stop very quick, hopping out of my car and I would say—I’m sorry, this is as far as I can remember.

The respondent himself said “The road was a bit slippery.”

Several of the children had coasted towards the street but the ridge of snow at the foot of the incline served as a barrier and the ride stopped at this barrier. However, when the infant who was the youngest and last to get a ride came to this barrier, the sled mounted the ridge and carried the boy over and to the edge of the pavement. The sled did not reach the pavement but the boy’s head protruded slightly over the edge of the pavement.

At this time the respondent, then 20 years of age, was driving an automobile southward on North King Street. He was alone. There was no other traffic on this street either in front or behind him. He had a beginner’s licence but was not accompanied by a licensed driver or chauffeur as required by s. 62(1) of the Motor Vehicle Act, R.S.N.S. 1967, c. 191.

Respondent’s evidence is that when he was some 325 feet from where the impact occurred he saw some children at the top of the incline. He did not purport to keep them in view but says that when about 25 feet from the point of impact he saw an object moving down the in-

[Page 543]

cline from his right and about 25 feet from the road. He did not keep this object in view but says he applied his brakes and swerved to the left. The right rounded corner of the front bumper and the right front wheel struck the infant’s head, severely injuring him, causing brain damage which will disable him for life. He has lost the use of his limbs and cannot feed himself.

In these circumstances, s. 221(1) (a) and (b) of the Motor Vehicle Act (supra) which reads:

Where any injury, loss or damage is incurred or sustained by any person by reason of the presence of a motor vehicle upon a highway, the onus of proof

(a) that such injury, loss or damage did not entirely or solely arise through the negligence or improper conduct of the owner of the motor vehicle, or of the servant or agent of such owner acting in the course of his employment and within the scope of his authority as such servant or agent;

(b) that such injury, loss or damage did not entirely or solely arise through the negligence or improper conduct of the operator of the motor vehicle;

shall be upon the owner or operator of the motor vehicle.

applied.

Dubinsky J., in charging the jury in respect of this section, said:

What I have read to you now is only in the case of a driver and a pedestrian. If there is a collision between a motorist and a pedestrian, the burden is upon the motorist to establish that he was not entirely or solely to blame. The law says to him, you have got to establish that you were not entirely or solely to blame for this accident. That is the burden upon Mr. MacKenzie in this case. That is the burden which his lawyers have accepted. They have accepted the challenge. They say, yes, we have to prove that.

But I tell you this as a matter of law in the province of Nova Scotia, our Supreme Court has said this. The moment that the driver, the operator, proves that the pedestrian was either at fault entirely or partly at fault; the moment he can prove

[Page 544]

he was not entirely or solely to blame, then the burden falls back upon the pedestrian to prove that the driver was responsible.

The law in Nova Scotia as to the effect and interpretation of this section was set out by Ilsley C.J. in Tuckey v. Dyer[11], where Ilsley C.J. correctly applied the judgment of this Court in Dearing v. Hebert[12]. The section under review in Dearing v. Hebert was, to all intents and purposes, the same as s. 221(1) (a) and (b) of the Motor Vehicle Act of Nova Scotia and in particular contains the same phrase “…did not entirely or solely arise through the negligence or improper conduct…” and Locke J. for the majority, referring to the matter of onus, quoted with approval from the judgment delivered by Lord Wright in Winnipeg Electric Company v. Geel[13], as follows:

But the onus which the section places on the defendant is not in law a shifting or transitory onus: it cannot be displaced merely by the defendant giving some evidence that he was not negligent, if that evidence, however credible, is not sufficient reasonably to satisfy the jury that he was not negligent: the burden remains on the defendant until the very end of the case, when the question must be determined whether or not the defendant has sufficiently shown that he did not in fact cause the accident by his negligence. If, on the whole of the evidence, the defendant establishes this to the satisfaction of the jury, he will be entitled to judgment; if, however, the issue is left in doubt or the evidence is balanced and even, the defendant will be held liable in virtue of the statutory onus, whereas in that event but for the statute the plaintiff would fail, because but for the statute the onus would be on him.

It is, accordingly, beyond question that in telling the jury as he did, “the moment he [the driver] can prove he was not entirely or solely to blame, then the burden falls back upon the pedestrian to prove that the driver was responsible”, the learned trial judge misdirected the jury on a most vital aspect of the case.

[Page 545]

In addition to this misdirection, the appellant also urges that the learned trial judge misdirected the jury in two other respects as follows: (1) That in expressing his opinion on the question of liability as he did, Dubinsky J. virtually withdrew the question of liability from the jury’s consideration; (2) In withdrawing from the jury’s consideration the issue as to the respondent being in violation of s. 62(1) of the Motor Vehicle Act of Nova Scotia.

Dealing with the objection that the learned trial judge virtually withdrew the question of liability from the jury’s consideration, it must be noted that he did point out to the jury that they were the judges of the facts on at least two occasions in his charge, but in two passages as the jury was about to leave the jury box, he did, in my view, virtually and I think almost totally withdraw the question of liability from the jury. The two passages which follow one another in sequence read as follows:

Then you have got to assess the damages. But it seems to me and because it is my solemn duty as a judge, and as long as I am going to continue to sit as a judge I am going to exercise my duty as I see it until overruled by a higher court, but it seems to me, Mr. Foreman and members of the jury, Dewar Forrest MacKenzie said, “I cut my wheels to the left. I applied my brakes. Then I heard the thud. There was no other traffic. I wasn’t driving fast.” He didn’t do anything of the sort of things which we have come to associate with a negligent and careless driver. I am sure that he himself would fervently want to give anything to have avoided this unhappy incident in his life but I cannot think—I do not think myself—that the evidence has established any blame on the part of Mr. MacKenzie but that is my opinion. It doesn’t have to be yours. You are the judges of the facts. You are the ones who are going to say whether the plaintiff has succeeded or has not.

The Constable will be sworn now.

I should like to perhaps add this one word that I want to commend Mr. Saunders for the sincerity of his presentation, for the sincerity in which he has put forward everything that could possibly be said and it may very well be that in your opinion you are satisfied. But irrespective of what is your outcome, I commend him for having discharged his

[Page 546]

duties in what I consider a difficult case and an entirely unhappy case but one in which I couldn’t find any fault with the defendant.

(Emphasis added.)

It was the contention of the appellant that the respondent had not been keeping a proper lookout and that his evidence as to the occurrence could not be accepted. The fact put forward by the respondent that when he first saw the moving object, it was 25 feet from the shoulder and that at that very time he was 25 feet from where the impact took place means that the car and the moving object were going at the same speed. This had to be for, they arrived at the same point simultaneously. The car, according to the respondent, was being driven at from 20 to 25 miles an hour. There was no specific evidence on the point, but it is only common sense and common knowledge that the boy on the sled would not be going anything like 20 to 25 miles an hour. The eyewitness, Arthur Weagle, who observed the accident through his front room window, testified that the boy and the sled went over the ridge of snow at the shoulder of the road and that the sled did not go onto the pavement, only the boy’s head protruded over the edge of the pavement as the sled crested the ridge. There is no question on the evidence but that the impact happened at the extreme west or right edge of the pavement and this means that the car was being driven at the extreme right of the pavement and that it had not been swerved to the left as the respondent said he had done. If the car had swerved a foot or perhaps less to the left, neither the bumper nor the front wheel could have struck the boy. This was the case for the appellant and it was never put properly to the jury by the learned trial judge, but instead he sent them to the jury room, emphasizing that the case was one “in which I couldn’t find any fault with the defendant.”

Then as to the effect of the violation of s. 62(1) which reads:

The Department upon receiving from any person over the age of sixteen years an application for a beginner’s license may in its discretion issue such a license; entitling the applicant, while having the

[Page 547]

license in his immediate possession, to drive a motor vehicle upon the highways, when accompanied by a licensed operator or a licensed chauffeur who is actually occupying a seat beside the driver and there is no other person in the vehicle.

the learned trial judge said:

He pleaded guilty to driving while merely having a beginner’s license, he did not have a licensed driver with him. He pleaded guilty. I am telling you as a matter of law that you must not consider that in the slightest against him unless you think, you feel that the evidence shows that he operated his car improperly at that time. Because a breach of a statutory duty, a breach of a duty under the Motor Vehicle Act or any act in Canada, is not of itself a ground for imposing liability unless the failure was a causative factor in the resulting accident. The breach of the statute, the fine that you paid, if that had nothing to do with the actual accident itself, then you are not responsible simply because you did not have a license because a man can go out and have the best license in the world and everything and be negligent and a person without a license can drive carefully.

This instruction was good in law in part, but expressed as it was it ignored the contention of the appellant that the absence of a licensed driver or chauffeur did contribute to the accident. The evidence of respondent was that he first saw the children when they were more than 300 feet away. He appears to have dismissed them from his consideration until he says he saw an object moving towards the road 25 feet away. I think the jury was entitled to be allowed to consider whether, had a licensed driver or chauffeur been actually occuying a seat beside the respondent, that licensed driver or chauffeur would have been more aware of the potential danger which the presence of children on the snow-covered incline would arouse in a qualified driver. The law of Nova Scotia requires that to obtain a driver’s licence an applicant must pass an examination to establish his competence to drive on a highway. The section dealing with examination of drivers reads as follows:

65 (1) The Department shall examine every application for a driver’s license before issuing any

[Page 548]

such license, except as otherwise provided in subsections (3) and (4).

(2) The Department shall examine the applicant as to his physical and mental qualifications to operate a motor vehicle in such manner as not to jeopardize the safety of persons or property and as to whether any facts exist which would bar the issuance of a license under Section 60.

(3) [Not applicable]

(4) [Not applicable]

This section was not brought to the attention of the jury. Instead of letting the jury pass upon the matter, the learned trial judge said:

I am telling you as a matter of law that you must not consider that [the fact that he did not have a licensed driver with him] in the slightest against him unless you think, you feel that the evidence shows that he operated his car improperly at that time.

If the jury thought that the evidence showed that respondent operated his car improperly at the time, the appellant would have been entitled to judgment regardless of this factor. By so charging the jury, he wiped out any significance the absence of a licensed driver or chauffeur might have had in relation to this accident.

Apart from these contentions, it is my view that the case of the infant was never put properly to the jury. It seems that the learned trial judge assumed and permitted the jury to assume that respondent’s version of what actually happened was not subject to challenge. It is clear from his own evidence that he was hugging the right edge of the pavement as he drove along. There was no reason for this as there was no other traffic in sight coming or going and he had the whole street to himself, a street 30 feet in width with a paved surface of 20 feet. But more significantly, he says that when he saw the object moving toward the road, it was, as I earlier mentioned, 25 feet from the road and at that time he was 25 feet from where the boy was struck and

[Page 549]

going at from 20 to 25 miles an hour. His evidence in this regard is as follows:

Q. How far was the object from the road at this time?

A. About twenty-five feet.

Q. And where was it with respect to the front of your car?

A. It was maybe about twenty-five feet in front of me.

and he said he was in the centre of the right-hand lane at that time, his evidence being:

Q. Driving in to the center of the road?

A. Center of the lane, yes.

Q. Center of your right-hand lane?

A. Right.

If he was driving in the centre of the right-hand lane he could not have struck the boy whose head projected onto the pavement by only a matter of inches. That the impact was at the outer edge of the right-hand lane was fully substantiated. It is to be observed that the respondent did not see the boy come over the snow ridge. Weagle, whose evidence was stressed by the respondent, said as quoted in the respondent’s factum:

Q. Point this out to the jury. Come down to the jury. On L-2—

A. (Witness complies.) That would be the terrace there. They would always stop on the bank of snow at the shoulder. This time he was on the sled and went over the shoulder.

Q. Perhaps you would speak up. How far did he go with the sled?

A. Well, out on the shoulder of the road. He never went out into the road; just about his head was into the pavement. And the car struck him. They both got there about the same time…

and at another place in his evidence the same witness said as follows:

A. Well when they hit—he jumped on the brakes, I guess and the car swung, you know, complete circle on the road and went down the road sideways.

[Page 550]

Q. How far?

* * *

Q. Now, after the accident, you went to the street, did you?

A. Yes.

Q. Can you indicate where you saw Rodney when you arrived at the street?

A. He was on the shoulder of the road with his head in towards my house and his feet was towards the road which when he got hit why—from the table or something like that from where he was hit; he was that much further down the road. He was coasting with his head out towards the road but he was turned with his head in towards my house.

BY THE COURT:

Q. He was on the shoulder of the road? A. On the shoulder, yes.

and again:

Q. And what part of the boy came in contact with the car?

A. It was just his head.

Q. The boy’s head and the boy’s head was in contact with the side of the side of the right front of the car?

A. With the front bumper.

This being so, the evidence of respondent: (1) That he was driving in the centre of the right lane was not in accordance with the other proven facts; (2) That he swerved when 25 feet away must be doubted because if he had swerved to his left at this distance he could not have hit the boy.

I am left with the distinct impression that this boy has not had a fair trial and the rationalizations of Cooper J.A. in the Appeal Division do not in the least dissipate that impression. I think that justice in this case requires that the appeal should be allowed and a new trial directed. The appellant is entitled to his costs in this Court and in the Appeal Division, the costs of the first trial to abide the result of the new trial or as the Court at the new trial may direct.

SPENCE J.—I have had the advantage of reading and. carefully considering the reasons for

[Page 551]

judgment given by Mr. Justice Ritchie and Mr. Justice Hall. I have come to the conclusion that I concur with the view of Mr. Justice Hall that the appeal should be allowed and a new trial directed, for two reasons: Firstly, as pointed out by Mr. Justice Hall, the direction of the learned trial judge given in reference to s. 221(1)(a) and (b) of the Motor Vehicle Act, R.S.N.S. 1967, c. 191, was plainly wrong and not in accordance with the decision of this Court in Dearing v. Hebert[14], in reference to an exactly similar section. Secondly, it would appear, again as pointed out by Mr. Justice Hall in his reasons, that the learned trial judge misdirected the jury as to an important portion of the evidence.

It was the respondent’s evidence that he drove his vehicle down the centre of the southbound lane of the roadway at 20 to 25 miles an hour and that when he saw the infant appellant approaching from the right on his sleigh the infant appellant was about 25 feet away from the road and it was the respondent’s evidence that he, the respondent, then swerved to the left but that he heard the thud of the impact of his vehicle with the infant appellant. On independent evidence, this story was impossible. The infant appellant slid down the slope on his little sleigh and could not possibly have been travelling 20 to 25 miles an hour, so that if the front of the respondent’s car came into contact with the infant appellant then the respondent’s car must have been much more than 20 to 25 feet away from the scene of the impact when he, for the second time, perceived the infant appellant approaching the road on the sleigh. And again the infant appellant’s head merely protruded a few inches onto the travelled portion of the roadway and the only impact was with the infant appellant’s head. Therefore, if the respondent had been driving his vehicle in the centre of the southbound lane of a twenty-foot roadway his vehicle would have passed the infant appellant whose head protruded only inches from the snow bank without ever touching him, and if the respondent had swerved his car to the left as he swore he did then that vehicle would have been even far-

[Page 552]

ther away from the infant appellant’s head. The learned trial judge failed to point out and discuss with the jury this obvious defect in the respondent’s evidence. Under these circumstances, and in view of the defects of the evidence, the latter part of the learned trial judge’s charge amounted to such a serious misdirection upon the evidence that a new trial is required.

I express no view upon the effect of the breach of s. 62(1) of the Motor Vehicle Act, supra.

LASKIN J.—I agree with Hall and Spence JJ. that the appeal should be allowed and a new trial directed. This result follows from the reasons they have given but without the need to rely on s. 62(1) of the Motor Vehicle Act, R.S.N.S. 1967, c. 191.

Appeal allowed and new trial ordered, with costs, RITCHIE and PIGEON JJ. dissenting.

Solicitor for the plaintiff, appellant: Edmund R. Saunders, Lunenburg.

Solicitors for the defendant, respondent: Mclnnes, Cooper & Robertson, Halifax.