Gamblin v. O'Donnell et al., (2001) 244 N.B.R.(2d) 102 (CA)

• Jurisdiction: New Brunswick
• Court: Court of Appeal (New Brunswick)
• Judge: Ryan, Drapeau and Robertson, JJ.A.
• Citation: (2001), 244 N.B.R.(2d) 102 (CA),2001 NBCA 109
• Date: 19 September 2001

Gamblin v. O'Donnell (2001), 244 N.B.R.(2d) 102 (CA);

    244 R.N.-B.(2e) 102; 634 A.P.R. 102

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: [2001] N.B.R.(2d) TBEd. NO.026

The Halifax Insurance Company (appellant) v. Gene O'Donnell, Charles Absher, Ray Allen and David H. Gamblin (respondents)

(230/00/CA; 2001 NBCA 109)

Indexed As: Gamblin v. O'Donnell et al.

New Brunswick Court of Appeal

Ryan, Drapeau and Robertson, JJ.A.

November 15, 2001.

Summary:

Gamblin, while a passenger in a vehicle, was struck in the head by a bullet from a rifle fired by Allen. Gamblin sued Allen, the driver of the vehicle and another for dam­ages for injuries suffered. Allen's insurer who was added as a third party, asserted that it was not required to indemnify Allen be­cause he had committed an "in­tentional or criminal act".

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 235 N.B.R.(2d) 244; 607 A.P.R. 244, allowed the action against Allen and dis­missed the action against the other defen­dants. The court declared that the insurer had to indemnify Allen against Gamblin's judg­ment to the limits of the policy. The insurer appealed. Allen cross-appealed.

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

Editor's note: for a companion decision see 244 N.B.R.(2d) 142; 634 A.P.R. 142.

Insurance - Topic 3302

Payment of insurance proceeds - Actions - Defences - Intentional act by insured to bring about loss or damage (public policy rule) - Allen negligently shot Gamblin and was convicted of using a firearm without reasonable precautions for the safety of other persons (Criminal Code, s. 86) - Gamblin obtained judgment against Allen in a civil action - Allen's insurer under a homeowner's comprehensive policy denied indemnity on the basis that Allen had committed an intentional act which was an excluded risk under the policy - The New Brunswick Court of Appeal held that the exclusion did not apply where the trial judge had found that Allen had not in­tended to injure Gamblin and Gamblin's injuries were the result of Allen's negli­gence and nothing more - See paragraphs 47 to 49.

Insurance - Topic 3303

Payment of insurance proceeds - Actions - Defences - Criminal act by insured to bring about loss or damage - Allen shot Gamblin and was convicted of careless use of a firearm (Criminal Code, s. 86) - Gam­blin obtained civil judgment against Allen - Allen's insurer under a home­owner's comprehensive policy denied indemnity on the basis of a criminal act exclusion - The New Brunswick Court of Appeal affirmed that the insurer could not rely on the exclusion - The conviction was, at best, prima facie evidence of a s. 86 offence - There were no public policy concerns or abuse of process by Allen to prevent him from rebutting that evidence - The convic­tion resulted from a jury verdict following a trial at which Allen had not testified - Allen might be prejudiced for his exercise of a constitutional right if undue impor­tance were attached to the conviction - The trial judge in the civil action had the ad­ditional evidence of Allen's testimony in deciding whether the exclusion applied - The trial judge's find­ing that Allen was "no more than civilly ... liable" precluded the conclusion that his negligent discharge of the firearm was a criminal act for the purposes of the exclu­sion - See paragraphs 50 to 63.

Torts - Topic 276

Negligence - Breach of statute - Require­ment that breach caused damage - Allen was hunting on a woods road - Just after sunset, O'Donnell approached driving a vehicle without headlights contrary to s. 207 of the Motor Vehicle Act - Allen thought that the vehicle was a deer and fired his rifle - The vehicle was 150-170 yards away - The bullet struck Gamblin, a passenger - The trial judge allowed Gam­blin's negligence action against Allen - O'Donnell's breach of s. 207 did not constitute contributory negligence where the breach did not cause or contribute to Gamblin's injuries - The New Brunswick Court of Appeal dismissed an appeal - The s. 207 prohibition against driving without lighted lamps during that part of "night time" where there was sufficient light to render clearly discernible persons and vehicles on the highway at a distance of 150 metres was not "an indicator of rea­sonable conduct" - Accordingly, such was not evidence of negligence - Although unnecessary to have dealt with causation between the s. 207 breach and Gamblin's injuries, the finding of a lack of causation was a complete answer to any claim based on a s. 207 breach or breach of a common law duty - See paragraphs 30 to 38.

Torts - Topic 277

Negligence - Breach of statute - Effect of breach of statute - [See Torts - Topic 276 ].

Cases Noticed:

Young v. Fletcher and Lakeburn Lumber Retail Ltd. (1995), 161 N.B.R.(2d) 116; 414 A.P.R. 116 (C.A.), refd to. [para. 23].

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 31].

James Street Hardware and Furniture Co. v. Spizziri et al. (1985), 51 O.R.(2d) 641 (H.C.), refd to. [para. 31].

Ryan v. Victoria (City) et al., [1999] 1 S.C.R. 201; 234 N.R. 201; 117 B.C.A.C. 103; 191 W.A.C. 103, refd to. [para. 32].

Day & Ross Inc. v. Randall et al. (2001), 236 N.B.R.(2d) 317; 611 A.P.R. 317 (C.A.), refd to. [para. 36].

Gallant v. Thibodeau (1998), 206 N.B.R.(2d) 336; 526 A.P.R. 336 (C.A.), refd to. [para. 38].

Smith v. Liberty Mutual Insurance Co. (2000), 228 N.B.R.(2d) 252; 588 A.P.R. 252 (C.A.), refd to. [para. 39].

Morecraft Estate et al. v. Prudential As­surance Co. (1999), 215 N.B.R.(2d) 213; 551 A.P.R. 213 (C.A.), refd to. [para. 39].

Guardian Insurance Co. of Canada v. Beaudin (2000), 229 N.B.R.(2d) 353; 519 A.P.R. 353 (C.A.), refd to. [para. 39].

Courtney v. Royal and SunAlliance Insur­ance Co. (2001), 237 N.B.R.(2d) 289; 612 A.P.R. 289 (C.A.), refd to. [para. 39].

Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 S.C.R. 252; 147 N.R. 44; 83 Man.R.(2d) 81; 36 W.A.C. 81, refd to. [para. 39].

Scalera v. Lloyd's of London, [2000] 1 S.C.R. 551; 253 N.R. 1; 135 B.C.A.C. 161; 221 W.A.C. 161 (C.A.), refd to. [para. 39].

Monenco Ltd. et al. v. Commonwealth Insurance Co. et al. (2001), 274 N.R. 84; 155 B.C.A.C. 161; 254 W.A.C. 161 (S.C.C.), refd to. [para. 39].

Straits Towing Ltd. et al. v. Walkem Machinery & Equipment Ltd. and Cana­dian Indemnity Co., [1976] 1 S.C.R. 309; 3 N.R. 523, refd to. [para. 44].

Sansalone v. Wawanesa Mutual Insurance Co. et al. (1998), 106 B.C.A.C. 268; 172 W.A.C. 268; 48 B.C.L.R.(3d) 143 (C.A.), refd to. [para. 47].

R. v. Creighton (D.J.) and Crawford (C.), [1993] 3 S.C.R. 3; 157 N.R. 1; 65 O.A.C. 321, refd to. [para. 55].

Indemnity Insurance Co. v. Excel Cleaning Service, [1954] S.C.R. 169, refd to. [para. 56].

Toronto (City) v. Canadian Union of Pub­lic Employees, Local 79 (2001), 149 O.A.C. 213 (C.A.), refd to. [para. 58].

Demeter v. British Pacific Life Insurance Co., Occidental Life Insurance Co. of California and Dominion Life Assurance Co. (1983), 43 O.R.(2d) 33 (H.C.), affd. (1984), 7 O.A.C. 143 (C.A.), refd to. [para. 60].

R. v. Gosset, [1993] 3 S.C.R. 76; 157 N.R. 195; 57 Q.A.C. 130, refd to. [para. 62].

Authors and Works Noticed:

Andal, R.V. and Donnelly, T., Residential Liability Insurance in Brown, C., Insur­ance Law in Canada (1999 Looseleaf Ed.), vol. 2, c. 18, pp. 18-179, 18-180 [para. 52].

Brown, C., Insurance Law in Canada (1999 Looseleaf Ed.), vol. 2, c. 18, pp. 18-179, 18-180 [para. 52].

Canadian Firearms Safety Course Hand­book, gen­erally [para. 19].

Linden, Allen M., Canadian Tort Law (6th Ed. 1997), c. 7 [para. 31].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), para. 19.148 [para. 59].

Counsel:

Peter F. Blair, Q.C., and George L. Cooper, for the appellant/third party;

David T. Hashey, Q.C., and Amanda J. Frenette, for the respondents/defendants, Gene O'Donnell and Charles Absher;

Ronald J. Ashfield, Q.C., for the respon­dent/defendant, Ray Allen;

George T. Yeamans, for the respon­dent/plaintiff, David H. Gamblin.

These appeals were heard on September 19, 2001, by Ryan, Drapeau and Robertson, JJ.A., of the New Brunswick Court of Ap­peal. Drapeau, J.A., delivered the follow­ing reasons for judgment of the court on Novem­ber 15, 2001.