Goodwin v. Goodwin et al., (2007) 237 B.C.A.C. 129 (CA)

• Judge: Prowse, Newbury and Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 29, 2006
• Jurisdiction: British Columbia
• Citations: (2007), 237 B.C.A.C. 129 (CA);2007 BCCA 81

Goodwin v. Goodwin (2007), 237 B.C.A.C. 129 (CA);

    392 W.A.C. 129

MLB headnote and full text

Temp. Cite: [2007] B.C.A.C. TBEd. FE.032

Christina Mary Goodwin (appellant/plaintiff) v. Kelly Dean Goodwin, Holbrook Dyson Logging Ltd. (defendants) and Mainroad North Island Contracting Ltd. (respondent/defendant)

(CA033860; 2007 BCCA 81)

Indexed As: Goodwin v. Goodwin et al.

British Columbia Court of Appeal

Prowse, Newbury and Smith, JJ.A.

February 8, 2007.

Summary:

A dispatcher for a highway maintenance contractor received a call from the RCMP advising that a vehicle had slipped off the Quinsam Road in the District of Campbell River and that black ice had been reported. The contractor's contract charged it with the maintenance of provincial roads in the Campbell River area but not the Quinsam Road. The dispatcher indicated that he would alert his crew. A crew was not dispatched and the District of Campbell River was not alerted. A vehicle in which the plaintiff was a passenger subsequently skidded on black ice on the Quinsam Road near the area of the prior accident and went down an embankment. The plaintiff sued the District of Campbell River, the Attorney General of Canada, her husband (the driver), her husband's employer and the maintenance contractor. The action against the District of Campbell River and the Attorney General was discontinued. The remaining defendants applied to have the action dismissed.

The British Columbia Supreme Court, in a decision reported at [2006] B.C.T.C. Uned. 143, dismissed the action. The plaintiff appealed the dismissal of the action against the contractor, asserting that the court erred in finding that there was not sufficient proximity between the plaintiff and the contractor to create a duty of care.

The British Columbia Court of Appeal allowed the appeal, set aside the order below and remitted the action to the Supreme Court for a consideration of whether the duty of care was breached, the appropriate standard of care, causation and damages.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - The RCMP advised a highway maintenance contractor (Mainroad) that a vehicle had slipped off the Quinsam Road in the District of Campbell River and that black ice had been reported - Mainroad's contract charged it with road maintenance in the Campbell River area but did not include the Quinsam Road - Mainroad's dispatcher indicated that he would alert his crew - A crew was not dispatched and the District of Campbell River was not alerted - A vehicle in which the plaintiff was a passenger subsequently skidded on black ice on the Quinsam Road and went down an embankment - The British Columbia Court of Appeal held that it was reasonably foreseeable that the RCMP would rely on Mainroad's undertaking to take care of the problem and refrain from calling for further assistance and that members of the public might be injured if Mainroad failed to do so - Mainroad assumed a positive duty to act outside its jurisdiction - In effect (if not in fact), Mainroad stepped into the shoes of the District of Campbell River, which was charged with snow and ice removal in that area - In so doing, Mainroad assumed a duty to the public to take reasonable steps to ameliorate the danger - There were no policy reasons to preclude a finding of a duty of care - See paragraphs 34 to 61.

Topic - Topic 788

Negligence - Highways - Maintenance contractors - [See Torts - Topic 77 ].

Cases Noticed:

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [paras. 12, 42].

Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420; 164 N.R. 161; 42 B.C.A.C. 1; 67 W.A.C. 1, refd to. [paras. 12, 42].

Lewis et al. v. British Columbia, [1997] 3 S.C.R. 1145; 220 N.R. 81; 98 B.C.A.C. 168; 161 W.A.C. 168, refd to. [paras. 12, 42].

Ross v. Caunters (A Firm), [1979] 3 All E.R. 580 (Ch. D.), refd to. [para. 14].

Tracy v. Atkins (1979), 16 B.C.L.R. 223 (C.A.), refd to. [para. 14].

Whittingham v. Crease & Co. (1978), 88 D.L.R.(3d) 353 (B.C.S.C.), refd to. [para. 14].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [paras. 15, 39].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [paras. 15, 38].

Childs v. Desormeaux et al., [2006] 1 S.C.R. 643; 347 N.R. 328; 210 O.A.C. 315; 2006 SCC 18, refd to. [paras. 15, 35].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [paras. 15, 38].

Brown v. Port Edward (District) et al., [1996] B.C.T.C. Uned. 151 (S.C.), refd to. [para. 18].

Densmore and Guardian Insurance Co. of Canada v. Whitehorse (City) et al. (1986), 1 Y.R. 111; 5 B.C.L.R.(2d) 284 (S.C.), refd to. [para. 18].

Hedley Byrne & Co. v. Heller & Partners Ltd., [1964] A.C. 465 (H.L.), refd to. [para. 19].

Bayus v. Coquitlam (City) (1993), 16 M.P.L.R.(2d) 205 (B.C.S.C.), refd to. [para. 20].

DeLong v. Erie (County) (1982), 455 N.Y.S.2d 887 (App. Div.), refd to. [para. 20].

Hofstrand Farms Ltd. v. B.D.C. Ltd., [1986] 1 S.C.R. 228; 65 N.R. 261, dist. [para. 22].

Coggs v. Bernard (1703), 2 Ld. Raym. 909; 92 E.R. 107 (K.B.), refd to. [para. 26].

Wiens v. Serene Lea Farms Ltd. et al. (2001), 162 B.C.A.C. 301; 264 W.A.C. 301; 97 B.C.L.R.(3d) 282; 2001 BCCA 739, refd to. [para. 26].

Skelton v. London and North Western Railway Co. (1867), L.R. 2 C.P. 631, refd to. [para. 26].

Wise v. Courtney, [1985] B.C.J. No. 777 (S.C.), refd to. [para. 26].

Hall v. Hebert, [1993] 2 S.C.R. 159; 152 N.R. 321; 26 B.C.A.C. 161; 44 W.A.C. 161, refd to. [para. 27].

Baxter & Co. v. Jones (1903), 6 O.L.R. 360 (C.A.), refd to. [para. 28].

Morash v. Lockhart & Ritchie Ltd. (1978), 24 N.B.R.(2d) 180; 48 A.P.R. 180; 95 D.L.R.(3d) 647 (C.A.), refd to. [para. 28].

Maxey v. Canada Permanent Trust Co. (1984), 26 Man.R.(2d) 55; 9 D.L.R.(4th) 380 (C.A.), refd to. [para. 28].

Twardy Estate v. Humboldt Credit Union Ltd., [1985] 6 W.W.R. 538; 41 Sask.R. 217 (Q.B.), refd to. [para. 28].

Bijeau v. Pelletier and Co-operators General Insurance Co. (1996), 176 N.B.R.(2d) 241; 447 A.P.R. 241 (C.A.), refd to. [para. 28].

Myers v. Thompson, [1967] 2 O.R. 335 (C.A.), refd to. [para. 28].

Zelenko v. Gimbel Bros. (1935), 287 N.Y.S. 134, refd to. [para. 28].

R. v. Nord-Deutsche Versicherungs-Gesellschaft, [1971] S.C.R. 849, refd to. [para. 28].

Kent v. Griffiths, [2000] 2 All E.R. 474 (C.A.), refd to. [para. 29].

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 38].

Authors and Works Noticed:

Epp, J.A., Hall v. Hebert: Duty of Care and Omissions (1994), 28 U.B.C. L. Rev. 393, p. 396 [para. 27].

Linden, Allen M., Canadian Tort Law (7th Ed. 2001), p. 290 [paras. 27, 28].

Counsel:

E.A. Holekamp, for the appellant;

L.L. Afonso, for the respondent.

This appeal was heard at Vancouver, British Columbia, on September 29, 2006, by Prowse, Newbury and Smith, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered on February 8, 2007, when the following opinions were filed:

Newbury, J.A. - see paragraphs 1 to 33;

Prowse, J.A. (Smith, J.A., concurring) - see paragraphs 34 to 61.