Dupuis v. City of Moncton,

• Jurisdiction: New Brunswick
• Judge: Drapeau, C.J.N.B., Turnbull and Larlee, JJ.A.
• Neutral Citation: 2005 NBCA 47
• Citation: (2005), 284 N.B.R.(2d) 97 (CA),2005 NBCA 47,284 NBR (2d) 97,[2005] NBJ No 165 (QL),[2005] N.B.J. No 165 (QL),(2005), 284 NBR(2d) 97 (CA),284 N.B.R.(2d) 97,284 NBR(2d) 97
• Date: 26 January 2005
• Court: Court of Appeal (New Brunswick)

Dupuis v. Moncton (2005), 284 N.B.R.(2d) 97 (CA);

    284 R.N.-B.(2e) 97; 742 A.P.R. 97

MLB headnote and full text

[French language version follows English language version]

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

....................

Temp. Cite: [2005] N.B.R.(2d) TBEd. AP.034

Sharon Dupuis (appellant) v. The City of Moncton (respondent)

(133/04/CA; 2005 NBCA 47)

Indexed As: Dupuis v. Moncton (City)

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Turnbull and Larlee, JJ.A.

April 21, 2005.

Summary:

The plaintiff pedestrian was struck by a motorist at an intersection in the City of Moncton. The plaintiff sued the motorist. Three and one-half years after the accident, the plaintiff commenced a second action against Moncton, alleging that the pedestrian control devices located at the intersection were negligently designed, installed and/or maintained. Moncton sought summary judg­ment dismissing the action. It argued that the action arose out of the operation, care, or control of a motor vehicle and was therefore statute barred by the two year limitation period in s. 5(1) of the Limitation of Actions Act.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at [2004] N.B.R.(2d) (Supp.) No. 50, al­lowed the application and dismissed the action. The plaintiff appealed. The City cross-appealed respecting costs.

The New Brunswick Court of Appeal dismissed the appeal and allowed the cross-appeal.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - A party argued that the issue of discoverability precluded a court from granting summary judgment, relying on Aguonie v. Galion Solid Waste Ma­terials Inc. (Ont. C.A.) - The New Bruns­wick Court of Appeal stated that "[i]f Aguonie stands for the proposition that the issue of discoverability is one that cannot be decided on a summary judgment mo­tion, but must go to trial, then that is not the state of the law in New Brunswick. The issue of discoverability can be re­solved under Rule 22 if there is no genuine issue as to the material facts." - See para­graphs 30 and 31.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - On May 3, 2000, the plaintiff pedestrian was struck by a motor­ist at an intersection in the City of Monc­ton - The plaintiff sued the motorist - In January 2004, the plaintiff commenced a second action against Moncton - Moncton sought summary judgment dismissing the action, arguing that the action was barred by the two year limitation period in s. 5(1) of the Limitation of Actions Act - The motions judge held that the action against Moncton was discoverable by the exercise of due diligence no later than June 5, 2001 - The motions judge considered that the plaintiff's counsel (the Mayor of Moncton) had been aware of a possible claim against Moncton in May 2000 - The first action was commenced after Moncton had been put on notice - The plaintiff had discussed the pedestrian control device with an ad­juster on June 5, 2001 - The New Bruns­wick Court of Appeal dismissed the plain­tiff's appeal - The evidence led the motion judge to the correct conclusion, that dis­coverability was not an answer to the motion for summary judgment - See para­graphs 29 to 34.

Limitation of Actions - Topic 3026

Actions in tort - Motor vehicle accidents - Application of motor vehicle limitation period - The plaintiff pedestrian was struck by a motorist at an intersection in the City of Moncton - The plaintiff sued the motor­ist - Three and one-half years after the accident, the plaintiff commenced a second action against Moncton, alleging that the pedestrian control devices located at the intersection were negligently designed, installed and/or maintained - Moncton sought summary judgment dismissing the action - It argued that the action arose out of the operation, care, or control of a motor vehicle and was therefore barred by the two year limitation period in s. 5(1) of the Limitation of Actions Act - The mo­tions judge agreed and dismissed the action - The New Brunswick Court of Appeal dismissed the plaintiff's appeal - The City's purported negligence essentially required the presence of a motor vehicle to become manifest - The motor vehicle was in no way ancillary to the plaintiff's claim - This accident could only be characterized as a motor vehicle accident - The only way the City became involved was because there was a motor vehicle accident - Therefore, the limitation period found in s. 5(1) had to apply - See paragraphs 21 to 28.

Limitation of Actions - Topic 3040

Actions in tort - Motor vehicle accidents - What constitutes an action occasioned by or arising out of operation of motor vehi­cle - [See Limitation of Actions - Topic 3026 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See both Limitation of Actions - Topic 15 ].

Practice - Topic 5702

Judgments and orders - Summary judg­ments - Jurisdiction or when available or when appropriate - [See both Limitation of Actions - Topic 15 ].

Practice - Topic 5725

Judgments and orders - Summary judg­ments - Costs - The plaintiff pedestrian was struck by a motorist at an intersection in the City of Moncton - The plaintiff sued the motorist - Three and one-half years after the accident, the plaintiff commenced a second action against Moncton - A mo­tions judge granted Moncton summary judgment dismissing the action and ordered that costs be in the cause of the first action (a separate action between the plaintiff and motorist) - The New Brunswick Court of Appeal held that the motions judge made a reversible error respecting the costs order - There existed no discretion to involve a separate proceeding - There was no claim by the plaintiff against Moncton as third party in the separate action - Therefore, the trial judge in that action would not be able to give effect to the motion judge's dispo­sition that costs on the successful motion for summary judgment were in the cause of the separate action - The general rule was that costs followed the event - See paragraphs 35 to 41.

Practice - Topic 6923

Costs - General principles - Power to award or fix costs - [See Practice - Topic 5725 ].

Cases Noticed:

Morrow v. Aviva Canada Inc. (2004), 279 N.B.R.(2d) 77; 732 A.P.R. 77 (C.A.), refd to. [para. 15].

Caissie v. Sénéchal Estate et al. (2001), 237 N.B.R.(2d) 232; 612 A.P.R. 232 (C.A.), refd to. [para. 17].

Cannon v. Lange et al. (1998), 203 N.B.R.(2d) 121; 518 A.P.R. 121 (C.A.), refd to. [para. 17].

Dubé v. Dionne et al. (1998), 201 N.B.R.(2d) 387; 514 A.P.R. 387 (C.A.), refd to. [para. 17].

Kenmont Management Inc. v. Saint John Port Authority et al. (2002), 248 N.B.R.(2d) 1; 646 A.P.R. 1 (C.A.), refd to. [para. 20].

Heredi v. Fensom et al., [2002] 2 S.C.R. 741; 289 N.R. 88; 219 Sask.R. 161; 272 W.A.C. 161, refd to. [para. 22].

Karakas et al. v. General Motors of Can­ada Ltd. et al., [2004] O.T.C. 1116 (Sup. Ct.), refd to. [para. 24].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 29].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 29].

Zapfe v. Barnes et al. (2003), 174 O.A.C. 211; 66 O.R.(3d) 397 (C.A.), refd to. [para. 29].

Aguonie v. Galion Solid Waste Materials Inc. et al. (1998), 107 O.A.C. 114; 38 O.R.(3d) 161 (C.A.), refd to. [para. 30].

Acadia Marble, Tile & Terrazzo Ltd. v. Oromocto Property Developments Ltd. (1998), 205 N.B.R.(2d) 358; 523 A.P.R. 358 (C.A.), refd to. [para. 40].

MacLellan v. MacLellan, [2001] N.B.R.(2d) (Supp.) No. 58 (C.A.), refd to. [para. 40].

Dunphy's Poultry Farm Ltd. v. Merrithew, [2004] N.B.R.(2d) Uned. 47 (C.A.), refd to. [para. 40].

Walsh v. Nicholls et al. (2004), 273 N.B.R.(2d) 203; 717 A.P.R. 203 (C.A.), refd to. [para. 40].

S.F. v. L.S. (2004), 276 N.B.R.(2d) 183; 724 A.P.R. 183 (C.A.), refd to. [para. 40].

Statutes Noticed:

Limitation of Actions Act, R.S.N.B. 1973, c. L-8, sect. 5(1) [para. 21].

Counsel:

Ronald J. Ashfield, Q.C., for the appellant;

Eric LeDrew and Mark McElman, for the respondent.

This appeal and cross-appeal were heard on January 26, 2005, by Drapeau, C.J.N.B., Turnbull and Larlee, JJ.A., of the New Brunswick Court of Appeal. Larlee, J.A., delivered the following reasons for judgment for the court in both official languages on April 21, 2005.