Arseneault v. Savoie, (2015) 436 N.B.R.(2d) 88 (TD)

Judge:Léger, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:February 02, 2015
Jurisdiction:New Brunswick
Citations:(2015), 436 N.B.R.(2d) 88 (TD);2015 NBQB 50
 
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Arseneault v. Savoie (2015), 436 N.B.R.(2d) 88 (TD);

    436 R.N.-B.(2e) 88; 1139 A.P.R. 88

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. MR.025

Renvoi temp.: [2015] N.B.R.(2d) TBEd. MR.025

Gaston Arseneault (plaintiff) v. Jonathan Savoie (defendant) and The New Brunswick Federation of Snowmobile Clubs Inc., an Incorporated Body Corporate (third party)

(BC/28/2014; 2015 NBQB 50; 2015 NBBR 50)

Indexed As: Arseneault v. Savoie et al.

Répertorié: Arseneault v. Savoie et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Bathurst

Léger, J.

February 12, 2015.

Summary:

Résumé:

The defendant's snowmobile hit the back of the plaintiff's snowmobile. The plaintiff moved for summary judgment against the defendant on the ground that there was no defence to the action (Rules of Court, rule 22.01(1)(a) and (b)). The plaintiff also sought an order that the defendant make an advance payment of special damages in the amount of $94,927.96 (rule 47.03(3)). The third party moved for summary dismissal of the defendant's third party claim on the grounds that the third party claim was meritless and that the third party's defence, based on the Off-Road Vehicle Act, was unanswerable. The defendant opposed both motions.

The New Brunswick Court of Queen's Bench, Trial Division, granted summary judgment in favour of the plaintiff against the defendant and ordered the defendant to make an advance payment of $60,000. The Court also granted the third party summary judgment against the defendant.

Practice - Topic 5205

Trials - General - Advance payment of damages - The action filed by the plaintiff arose out of an accident between two snowmobiles - Liability was established - The plaintiff claimed an advance payment of special damages in the amount of $94,927.96 (Rules of Court, rule 47.03(3)) - The New Brunswick Court of Queen's Bench, Trial Division, granted an advance payment of $60,000, taking into account the analytical framework articulated in Smith v. Agnew (2001) (N.B.C.A.) - "The evidence satisfies me to the required standard of proof that the plaintiff will be able to establish at least this amount in special damages at trial. It is preferable to wait until the trial for a determination of the other amounts claimed in the motion and listed in the affidavit, because in my opinion the burden of proof has not been met more specifically with respect to the so-called 'non-taxable' income." - See paragraphs 22 to 28.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The defendant's snowmobile hit the back of the plaintiff's snowmobile - The plaintiff moved for summary judgment on the ground that there was no defence to the action (Rules of Court, rule 22.01(1)(a) and (b)) - The New Brunswick Court of Queen's Bench, Trial Division, granted the motion - The plaintiff's case was unanswerable - The issues raised by the defendant in relation to speed, visibility and other factors did not cast doubt on what a judge would decide if the matter proceeded to trial - Moreover, the defendant hit the back of the plaintiff's snowmobile - The evidence was not persuasive enough for a finding that the plaintiff should be attributed some share of liability for the accident - "It is true that a trial is without a doubt the best way of determining the issues. The right to a trial is of paramount importance to any litigant. However, as the Court of Appeal often says, when there is no defence to an action, like in this case, a judge seized of a motion for summary judgment should not hesitate to grant summary judgment if the moving party has made an unanswerable case." - See paragraphs 15 to 21.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The defendant's snowmobile hit the back of the plaintiff's snowmobile - The third party, the New Brunswick Federation of Snowmobile Clubs Inc., moved for summary judgment against the defendant on the grounds that the defendant's third party claim was meritless and that the third party's defence, based on the Off-Road Vehicle Act, was unanswerable - The New Brunswick Court of Queen's Bench, Trial Division, granted the motion - Sections 7.5(2) and 7.5(3)(b) of the Off-Road Vehicle Act provided the third party with an unanswerable defence - Under s. 7.5(2), "no action lies against the third party for any damage suffered as a result of a person operating a motorized snow vehicle on a motorized snow vehicle managed trail. This statutory provision offers the third party an unanswerable defence. Moreover, there is no evidence to establish that the third party acted with reckless disregard for the users of the trail and, more specifically, for the plaintiff and defendant. The third party also contends that the accident did not take place on the motorized snow vehicle managed trail. The applicable law provides that no action lies against the third party if the accident did not take place on the trail managed by the third party. Based on the evidence, I do not see how the third party could be held liable for the accident, even in part." - See paragraphs 29 to 34.

Practice - Topic 5706.1

Judgments and orders - Summary judgments - Cross-claim or third party claim - [See second Practice - Topic 5702 ].

Torts - Topic 680

Negligence - Snow vehicles and all terrain vehicles - Collisions - [See second Practice - Topic 5702 ].

Torts - Topic 6827

Defences - Statutory compliance, authority or immunity - Immunity from negligence - [See second Practice - Topic 5702 ].

Procédure - Cote 5205

Procès - Généralités - Paiement anticipé de dommages-intérêts - [Voir Practice - Topic 5205 ].

Procédure - Cote 5702

Jugements et ordonnances - Jugements sommaires - Compétence ou conditions d'ouverture ou opportunité - [Voir Practice - Topic 5702 ].

Procédure - Cote 5706.1

Jugements et ordonnances - Jugements sommaires - Demande reconventionnelle ou réclamation d'un tiers - [Voir Practice - Topic 5706.1 ].

Délits civils - Cote 680

Négligence - Motoneiges et véhicules tout-terrain - Collisions - [Voir Torts - Topic 680 ].

Délits civils - Cote 6827

Défenses - Conformité ུ la loi, autorité ou immunité - Immunité de la négligence - [Voir Torts - Topic 6827 ].

Cases Noticed:

Cannon v. Lange et al. (1998), 203 N.B.R.(2d) 121; 518 A.P.R. 121 (C.A.), refd to. [para. 13].

Dubé v. Dionne et al. (1998), 201 N.B.R.(2d) 387; 514 A.P.R. 387 (C.A.), refd to. [para. 14].

Smith v. Agnew (2001), 240 N.B.R.(2d) 63; 622 A.P.R. 63; 2001 NBCA 83, refd to. [para. 22].

Statutes Noticed:

Off-Road Vehicle Act, S.N.B. 1985, c. O-1.5, sect. 7.5(2), sect. 7.5(3)(b) [para. 32].

Rules of Court (N.B.), rule 22.01(1)(a), rule 22.01(1)(b), rule 22.01(3), rule 22.08, rule 23.01(1)(a), rule 23.01(1)(b) [para. 3]; rule 47.03(3) [para. 2].

Counsel:

Avocats:

Charles LeBlanc, Q.C., for the plaintiff;

Charles Leblond, Q.C., for the defendant;

Talia C. Profit, for the third party.

These motions for summary judgment were heard on February 2, 2015, before Léger, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Bathurst. The Court delivered the following decision, dated February 12, 2015, in both official languages.

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