Fontaine v. Loewen Estate, (1998) 103 B.C.A.C. 118 (SCC)

• Judge: Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 19, 1998
• Jurisdiction: Canada (Federal)
• Citations: (1998), 103 B.C.A.C. 118 (SCC)

Fontaine v. Loewen Estate (1998), 103 B.C.A.C. 118 (SCC);

    169 W.A.C. 118

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [1998] B.C.A.C. TBEd. MR.035

Beth Naomi Fontaine (appellant) v. Insurance Corporation of British Columbia (respondent)

(25381)

Indexed As: Fontaine v. Loewen Estate

Supreme Court of Canada

Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.

March 19, 1998.

Summary:

Fontaine and Loewen went missing. Their bodies were found over two months later in the wreck of a pick-up truck in a creek bed adjacent to the highway. Loewen's body was in the driver's position. There were no witnesses to the accident and no one knew how or why it occurred. The plaintiff, Fontaine's widow, brought an action against Loewen's estate. She contended that it was reasonable to infer driver negligence. The trial judge dismissed the action, holding that res ipsa loquitur did not apply and negli­gence was not proved. The plaintiff appealed. The Insurance Corporation of British Columbia (I.C.B.C.) also sought leave to withdraw an admission of liability contained in a third party defence which it had filed.

The British Columbia Court of Appeal, in a judgment reported 74 B.C.A.C. 241; 121 W.A.C 241, permitted I.C.B.C. to withdraw the admission. The court, McEachern, C.J.B.C., dissenting, dismissed the plaintiff's appeal from the decision that negligence was not proved. The plaintiff appealed.

The Supreme Court of Canada dismissed the appeal. The maxim of res ipsa loquitur should be treated as expired, since it was of limited use where it applied only where the facts permitted an inference of negligence and there was no other reasonable ex­planation for the accident in issue.

Evidence - Topic 152

Degree, standard or burden of proof - Res ipsa loquitur and specific burdens - Negli­gence - Application of res ipsa loquitur - [See first Torts - Topic 167 and Torts - Topic 549 ].

Torts - Topic 167

Negligence - Evidence - Presumption of negligence - Res ipsa loquitur - Inference of negligence - The Supreme Court of Canada stated that "whatever value res ipsa loquitur may have once provided is gone. Various attempts to apply the so-called doctrine have been more confusing than helpful. Its use has been restricted to cases where the facts permitted an inference of negligence and there was no other rea­sonable explanation for the accident. Given its limited use it is somewhat meaningless to refer to that use as a doctrine of law. It would appear that the law would be better served if the maxim was treated as expired and no longer used as a separate com­ponent in negligence actions. After all, it was nothing more than an attempt to deal with circumstantial evidence. That evi­dence is more sensibly dealt with by the trier of fact, who should weigh the circum­stantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabili­ties a prima facie case of negligence against the defendant. Once the plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed." - See paragraphs 25 to 26.

Torts - Topic 167

Negligence - Evidence - Presumption of negligence - Res ipsa loquitur - Inference of negligence - [See Torts - Topic 549 ].

Torts - Topic 549

Negligence - Motor vehicle - Evidence and burden of proof - General - Fontaine and Loewen went missing - Their bodies were found over two months later in the wreck of a pick-up truck in a creek bed adjacent to the highway - Loewen's body was in the driver's position - There were no witnesses to the accident and no one knew how or why it occurred - At the time when the two disappeared, wind and torrential rain had led to road and highway closures - Fontaine's widow brought an action against Loewen's estate - She contended that it was reasonable to infer driver negli­gence - The trial judge dismissed the action, holding that res ipsa loquitur did not apply where there were explanations consistent with no negligence and that the plaintiff failed to prove liability by Loewen - The Supreme Court of Canada stated that given the limited use of res ipsa loquitur, the maxim should be treated as expired - The court held that the trial judge did not err in concluding based on either the direct or circumstantial evidence, or both, that the plaintiff failed to prove negligence on a balance of probabilities - See paragraphs 16 to 35.

Cases Noticed:

National Trust Co. v. Wong Aviation Ltd., [1969] S.C.R. 481, refd to. [para. 12].

Gauthier & Co. v. R., [1945] S.C.R. 143, refd to. [para. 14].

Scott v. London and St. Katherine Docks Co. (1865), 3 H. & C. 596; 159 E.R. 665, refd to. [para. 16].

Jackson v. Millar, [1976] 1 S.C.R. 225; 4 N.R. 17, refd to. [para. 17].

Hellenius v. Lees, [1972] S.C.R. 165, refd to. [para. 17].

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193; 18 C.C.L.T.(2d) 209; 110 D.L.R.(4th) 289; [1994] 2 W.W.R. 609; 87 B.C.L.R.(2d) 1, refd to. [para. 33].

Authors and Works Noticed:

Balkin, R.P., and Davis, J.L.R., Law of Torts (1996), p. 289 [para. 20].

Clerk and Lindsell on Torts (13th Ed. 1969), p. 968, para. 967 [para. 17].

Klar, Lewis, Tort Law (2nd Ed. 1996), pp. 421 [para. 20]; 423, 424 [para. 24].

Linden, Allen M., Canadian Tort Law (5th Ed. 1993), p. 233 [para. 18].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (1992), p. 81 [para. 22].

Stanton, K.M., The Modern Law of Tort (1994), p. 76 [para. 20].

Wright, Cecil A., Res Ipsa Loquitur, Special Lectures of the Law Society of Upper Canada (1955), pp. 103 to 136 [para. 24].

Counsel:

Robert A. Easton, for the appellant;

Patrick G. Foy and A.M. Gunn, for the respondent.

Solicitors of Record:

Swinton & Co., Vancouver, B.C., for the appellant;

Ladner Downs, Vancouver, B.C., for the respondent.

This appeal was heard on November 14, 1997, before Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

On March 19, 1998, Major, J., delivered the following judgment in both official languages for the Supreme Court of Canada.