Feener v. McKenzie, (1971) 3 N.S.R.(2d) 829 (SCC)

• Judge: Ritchie, Hall, Spence, Pigeon and Laskin, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 05, 1971
• Jurisdiction: Canada (Federal)
• Citations: (1971), 3 N.S.R.(2d) 829 (SCC);1971 CanLII 24 (SCC);25 DLR (3d) 241;25 DLR (3d) 283;21 DLR (3d) 215;[1974] SCR 59;24 DLR (3d) 694;21 DLR (3d) 677;1971 CanLII 1121 (SCC);[1972] SCR 289;1971 CanLII 21 (SCC);[1971] ACS no 118;[1972] SCR 409;21 DLR (3d) 222;[1972] SCR 419;22 DLR (3d) 1;1971 CanLII 175 (SCC);4 CCC (2d) 290;1971 CanLII 180 (SCC);[1972] S

Feener v. McKenzie (1971), 3 N.S.R.(2d) 829 (SCC)

MLB headnote and full text

Feener v. McKenzie

Indexed As: Feener v. McKenzie

Supreme Court of Canada

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

October 5, 1971.

Summary:

The Supreme Court of Canada allowed the appeal and reversed a judgment of the Appeal Division of the Nova Scotia Supreme Court. The Appeal Division of the Nova Scotia Supreme Court affirmed the dismissal by a judge and jury of an action for damages for personal injuries arising out of a motor vehicle accident. The Supreme Court of Canada ordered a new trial. The plaintiff, a 5 year old boy, was sliding on his sled on a hill beside the highway and the boy went over a snow bank onto the paved portion of the highway and was struck by the right front of the defendant's motor vehicle as it was passing. The 5 year old boy suffered injuries to his central nervous system resulting in permanent incapacity and loss of speech and body functions. The jury found the defendant driver blameless under the circumstances and stated that the defendant had discharged the onus under section 221(1) of the Motor Vehicle Act.

The Supreme Court of Canada stated that the plaintiff did not receive a fair trial because the plaintiff's case was not properly put to the jury by the trial judge. In addition, the Supreme Court of Canada stated that the trial judge erred in his charge to the jury regarding the onus of proof imposed by section 221(1) of the Motor Vehicle Act. Section 221(1) requires that the operator of a motor vehicle show that any loss or damage occasioned by his vehicle to a person on the highway "did not entirely or solely arise through the negligence ... of the operator". The Supreme Court of Canada stated that the onus imposed by section 221(1) is not a shifting or transitory onus and remains with an operator throughout the trial. The trial judge in his charge stated that if the defendant driver "can prove he was not entirely or solely to blame, then the burden falls back on the pedestrian to prove that the driver was responsible".

Ritchie and Pigeon, JJ. [dissenting] would have dismissed the appeal and would have affirmed the dismissal of the plaintiff's action by the jury and by the Appeal Division of the Nova Scotia Supreme Court. Ritchie, J. stated that the jury could not have concluded that the burden under s. 221(1) was a shifting burden if the impugned language of the charge to the jury is considered in the context of the charge as a whole. In addition, Ritchie, J., stated that any errors in the charge to the jury when read in the context of the whole charge did not constitute misdirection. Ritchie, J., referred to Order 37, Rule 6 of the Rules of Court and stated that, in any event, the alleged misdirections, did not result in "some substantial wrong or miscarriage", which is a condition precedent to an order for a new trial.

Practice - Topic 5192

Juries and jury trials - Charge to jury - Sufficiency of judge's charge in an action between a pedestrian and a driver of a motor vehicle - Supreme Court of Canada ordered a new trial on the grounds that the plaintiff's case was not properly put to the jury by the trial judge and that the trial judge erred in describing the onus of proof imposed by section 221(1) of the Motor Vehicle Act.

Torts - Topic 550

Negligence - Motor vehicle - Evidence and burden of proof - Statutory burden on owner or operator - 5 year old boy on a sled collided with a car on a highway - Supreme Court of Canada ordered a new trial on the grounds that the plaintiff's case was not properly put to the jury by the trial judge and that the trial judge erred in describing the onus of proof imposed by section 221(1) of the Motor Vehicle Act.

Cases Noticed:

Tuckey v. Dyer, 27 D.L.R.(2d) 408, folld.

Deering v. Hebert, [1957] S.C.R. 843, folld.

Winnipeg Electric Company v. Geel, [1932] A.C. 690, folld.

Poole and Thompson Ltd. v. McNally, [1934] S.C.R. 717, folld.

Tzagarakis v. Stevens (1968), 69 D.L.R.(2d) 466, folld.

Lloy v. Nova Scotia Light and Power Co. Ltd. (1965), 35 D.L.R.(2d) 250, folld.

McMillan v. Murray, [1935] S.C.R. 572, folld.

Manitoba Power Commission v. Adams, [1954] 1 D.L.R. 387, folld.

Fardon v. Harcourt-Rivington (1932), 48 T.L.R. 215, folld.

McCannell v. McLean, [1937] S.C.R. 341, folld.

Statutes Noticed:

Motor Vehicle Act, R.S.N.S. 1967, c. 191, sect. 62(1), sect. 221(1).

Rules of Court, Order 37, rule 6.

Counsel:

Edmund R. Saunders, for the appellant;

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

The following opinions were filed:

Hall, J. - see paragraphs 1-17;

Spence, J. - see paragraphs 18-20;

Laskin, J. - see paragraph 21;

Ritchie, J., dissenting (Pigeon, J. concurring) - see paragraphs 22-48.