Hess v. Iqaluit (Town) et al., (2012) 524 A.R. 197

• Judge: O'Brien, Slatter and Bielby, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: April 17, 2012
• Jurisdiction: Northwest Territories
• Citations: (2012), 524 A.R. 197

Hess v. Iqaluit (2012), 524 A.R. 197; 545 W.A.C. 197 (NWTCA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MY.036

Joseph Hess (appellant/plaintiff) v. Town of Iqaluit and Roch Lessard Incorporated (respondents/defendants)

(A-0001-AP 2010000014; 2012 NWTCA 8)

Indexed As: Hess v. Iqaluit (Town) et al.

Northwest Territories Court of Appeal

O'Brien, Slatter and Bielby, JJ.A.

April 17, 2012.

Summary:

The plaintiff sued a municipality and a contractor for damages to his person and truck after the truck fell into a trench dug by the contractor, who was repairing a water line for the municipality.

The Northwest Territories Supreme Court, in a decision reported [2010] Northwest Terr. Cases Uned. A01, found the plaintiff 75% liable for the accident and the defendants 25% jointly and severally liable. The court also ruled that medical evidence proposed by the plaintiff was inadmissible because of noncompliance with the Rules of the Supreme Court (NWT.) The plaintiff appealed.

The Northwest Territories Court of Appeal dismissed the appeal.

Practice - Topic 8

General principles and definitions - Effect of noncompliance with the rules - In 1997, the plaintiff sued a municipality and a contractor for damages to his person and truck after the truck, in 1995, fell into a trench dug by the contractor, who was repairing a water line for the municipality - In 2009, the trial judge refused to dismiss the action for want of prosecution but gave directions to ensure that trial would take place by the spring of 2010 - On December 22, 2009, the certificate of readiness was filed - The certificate included a statement by the plaintiff that he would call two expert witnesses and deliver two experts' reports, in accordance with the Rules of the Supreme Court (NWT) - Trial took place in May 2010 - The plaintiff sought to introduce the evidence of two doctors, despite the fact that he had not provided any expert reports - He also sought to have that evidence given by telephone - The trial judge refused because of noncompliance with the Rules - The trial judge also refused an adjournment - The Northwest Territories Court of Appeal upheld the ruling - The trial judge had properly exercised his discretion after he took into account the fact that he gave the plaintiff a second chance when he refused to dismiss the action for want of prosecution and where it was incumbent upon the plaintiff to get his evidence in order - See paragraphs 1 to 4, 10.

Torts - Topic 380

Negligence - Motor vehicle - Standard of care of driver - Dangerous highways or adverse driving conditions - The plaintiff sued a municipality and a contractor for damages to his person and truck after the truck fell into a trench dug by the contractor, who was repairing a water line for the municipality - The trial judge found the plaintiff 75% liable for the accident, ruling as follows: "With prior knowledge of the excavation site, with the sign and barricades to alert or remind him or the construction project, with the presence of inclement weather and visibility issues, the reasonable motorist would have proceeded with caution along that segment of Ring Road, if at all" - The Northwest Territories Court of Appeal upheld the decision, absent palpable and overriding error - See paragraphs 5 to 9.

Counsel:

H.R. Latimer, for the appellant;

M.S. Jones, for the respondents.

This appeal was heard on April 17, 2012, by O'Brien, Slatter and Bielby, JJ.A., of the Northwest Territories Court of Appeal. The Court delivered its decision on April 17, 2012, with the following reasons filed on May 2, 2012.