Housen v. Nikolaisen et al., (2002) 219 Sask.R. 1 (SCC)

• Judge: McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 02, 2001
• Jurisdiction: Canada (Federal)
• Citations: (2002), 219 Sask.R. 1 (SCC);2002 SCC 33;[2002] 2 SCR 235;211 DLR (4th) 577;[2002] 7 WWR 1;10 CCLT (3d) 157;286 NR 1;[2002] CarswellSask 178;AZ-50118043;EYB 2002-29758;JE 2002-617;[2002] SCJ No 31 (QL);112 ACWS (3d) 991;[2002] ACS no 31;219 Sask R 1;272 WAC 1;30 MPLR (3d) 1

Housen v. Nikolaisen (2002), 219 Sask.R. 1 (SCC);

    272 W.A.C. 1

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: [2002] Sask.R. TBEd. AP.004

Paul Housen (appellant) v. Rural Municipality of Shellbrook No. 493 (respondent)

(27826; 2002 SCC 33)

Indexed As: Housen v. Nikolaisen et al.

Supreme Court of Canada

McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache,  Binnie, Arbour and LeBel, JJ.

March 28, 2002.

Summary:

A vehicle driven by Nikolaisen rolled over on a rural road in the Rural Municipality of Shellbrook No. 493. The plaintiff passenger was rendered a quadriplegic. The plaintiff sued Nikolaisen and the Rural Municipality for damages.

The Saskatchewan Court of Queen's Bench, in a decision reported at 161 Sask.R. 241, found that Nikolaisen was negligent by driving at an excessive rate of speed for existing road conditions and by driving while his ability to do so was impaired by alcohol. The court also found that the Rural Munici­pality breached its duty to keep the road in a reasonable state of repair as required by s. 192 of the Saskatchewan Rural Municipality Act where it failed to erect and maintain a warning and regulatory sign on the portion of the road where the accident occurred. The court further found that the plaintiff failed to take reasonable care for his own safety by accepting a ride from Nikolaisen when he ought to have known that his ability to drive was impaired. The court apportioned fault 50% to Nikolaisen, 35% to the Rural Munic­ipality and 15% to the plaintiff. The Rural Municipality appealed.

The Saskatchewan Court of Appeal, in a decision reported at 189 Sask.R. 51; 216 W.A.C. 51, allowed the appeal and dis­missed the action against the Rural Munici­pality. The plaintiff appealed.

The Supreme Court of Canada, Bastarache, Gonthier, Binnie and Lebel, JJ., dissenting, allowed the appeal and restored the decision of the trial judge.

Evidence - Topic 12

What constitutes a question of law and fact - [See first and third Municipal Law - Topic 1731 and first Practice - Topic 8000.1 ].

Municipal Law - Topic 1724

Liability of municipalities - Highways and streets - Maintenance of - General - [See all Municipal Law - Topic 1731 ].

Municipal Law - Topic 1731

Liability of municipalities - Highways and streets - Dangerous highway conditions - Warning of danger - The trial judge held that a Rural Municipality was partially liable with respect to a motor vehicle accident on a rural road - The trial judge found that there was a hidden hazard (un­expected sharp curve) and that the Rural Municipality breached its duty to keep the road in a reasonable state of repair as required by s. 192 of the Saskatchewan Rural Municipality Act where it failed to erect a warning and regulatory sign to warn of the hazard - The Saskatchewan Court of Appeal allowed an appeal and dismissed the action against the Rural Municipality, holding, inter alia, that the trial judge erred in law where she failed to consider the conduct of the ordinary mo­torist and thus failed to apply the correct standard of care - The Supreme Court of Canada allowed an appeal and restored the trial judge's decision - The trial judge's finding that the Rural Municipality breached its standard of care was a ques­tion of mixed law and fact which should not be overturned absent a palpable and overriding error - No such error existed here - The court found that conduct of the ordinary driver was both considered and applied by the trial judge - See paragraphs 39 to 49.

Municipal Law - Topic 1731

Liability of municipalities - Highways and streets - Dangerous highway conditions - Warning of danger - The trial judge held that a Rural Municipality was partially liable with respect to a motor vehicle accident on a rural road - The trial judge found that there was a hidden hazard (un­expected sharp curve) and that the Rural Municipality breached its duty to keep the road in a reasonable state of repair as required by s. 192 of the Saskatchewan Rural Municipality Act where it failed to erect a warning and regulatory sign to warn of the hazard - The Saskatchewan Court of Appeal allowed an appeal and dismissed the action against the Rural Municipality, holding, inter alia, that the trial judge committed a palpable and over­riding error where she relied on expert opinions which were premised on a de facto speed limit of 80 km/h - The Supreme Court of Canada allowed an appeal and restored the trial judge's deci­sion - The trial judge did not base her standard of care analysis on a de facto speed limit of 80 km/h - Rather she found that the curve could not be taken safely at greater than 60 km/h when dry and 50 km/h when wet - The court stated that "the trial judge's factual findings concerning the proper speed to be used on approaching the curve should not be interfered with. ... Her assessment of the proper speed was a reasonable inference based on the evi­dence and does not reach the level of a palpable and overriding error" - See para­graphs 50 to 58.

Municipal Law - Topic 1731

Liability of municipalities - Highways and streets - Dangerous highway conditions - Warning of danger - The trial judge held that a Rural Municipality was partially liable with respect to a motor vehicle accident on a rural road - The trial judge found that there was a hidden hazard (un­expected sharp curve), that the Rural Mun­icipality knew or ought to have known of the hazard, and that the Rural Municipality breached its duty to keep the road in a reasonable state of repair as required by s. 192 of the Saskatchewan Rural Municipal­ity Act where it failed to erect a warning and regulatory sign to warn of the hazard - The Supreme Court of Canada stated that the question of whether the Rural Munici­pality knew or ought to have known of the disrepair of the road was a question of mixed fact and law and that, absent an isolated error in law or principle, such a finding was subject to the "palpable and overriding" standard of review - The trial judge did not err in law by either failing to approach the question from the perspective of a prudent municipal councillor, or by improperly shifting the burden to the Rural Municipality, and there was no palpable and overriding error which would require overturning the trial judge's finding that the Rural Municipality knew or ought to have known of the hazard - See paragraphs 59 to 69.

Municipal Law - Topic 1731

Liability of municipalities - Highways and streets - Dangerous highway conditions - Warning of danger - The trial judge held that a Rural Municipality was partially liable with respect to a motor vehicle accident on a rural road - The trial judge found that there was a hidden hazard (un­expected sharp curve), that the Rural Mun­icipality knew or ought to have known of the hazard, and that the Rural Municipality breached its duty to keep the road in a reasonable state of repair as required by s. 192 of the Saskatchewan Rural Municipal­ity Act where it failed to erect a warning and regulatory sign to warn of the hazard - The Supreme Court of Canada held that the trial judge did not err in her finding that the Rural Municipality knew or ought to have known of the disrepair - The court stated, inter alia, that while prior accidents on the road did not provide a direct basis for the Rural Municipality to have had knowledge of the hazard, it did not find that the trial judge imputed knowledge to the Rural Municipality on the basis of the prior accidents - The existence of the accidents was simply one factor which caused the trial judge to find that the Rural Municipality should have been put on notice with respect to the condition of the road - The court also stated that "although the circumstances of the prior accidents in this case do not provide strong evidence that the municipality ought to have known of the hazard, proof of prior accidents is not a necessary condition to a finding of breach of the duty of care under s. 192 of the Rural Municipality Act" - See para­graphs 65 and 67.

Municipal Law - Topic 1731

Liability of municipalities - Highways and streets - Dangerous highway conditions - Warning of danger - The trial judge held that a Rural Municipality was partially liable with respect to a motor vehicle accident on a rural road - The trial judge found that there was a hidden hazard (un­expected sharp curve) and that the Rural Municipality breached its duty to keep the road in a reasonable state of repair as required by s. 192 of the Saskatchewan Rural Municipality Act where it failed to erect a warning and regulatory sign to warn of the hazard - The Supreme Court of Canada held that the trial judge did not err in her finding that the Rural Municipal­ity knew or ought to have known of the disrepair - The court stated, inter alia, that "[t]he hazard in question is an unsigned and unexpected sharp curve. In our view, when a hazard is, like this one, a perma­nent feature of the road which has been found to present a risk to the ordinary driver, it is open to the trial judge to draw an inference, on this basis alone, that a prudent municipal councillor ought to be aware of the hazard" - See paragraph 61.

Municipal Law - Topic 1731

Liability of municipalities - Highways and streets - Dangerous highway conditions - Warning of danger - The trial judge held that a Rural Municipality was partially liable with respect to a motor vehicle accident on a rural road - The trial judge found that there was a hidden hazard (un­expected sharp curve), that the Rural Mun­icipality knew or ought to have known of the hazard, and that the Rural Municipality breached its duty to keep the road in a reasonable state of repair as required by s. 192 of the Saskatchewan Rural Municipal­ity Act where it failed to erect a warning and regulatory sign to warn of the hazard - The Supreme Court of Canada stated that "the trial judge did not shift the burden of proof to the municipality on this issue. Once the trial judge found that there was a permanent feature of [the road] which presented a hazard to the ordinary motor­ist, it was open to her to draw an inference that the municipality ought to have been aware of the danger. Once such an infer­ence is drawn, then, unless the municipal­ity can rebut the inference by showing that it took reasonable steps to prevent such a hazard from continuing, the inference will be left undisturbed" - See paragraph 66.

Municipal Law - Topic 1731

Liability of municipalities - Highways and streets - Dangerous highway conditions - Warning of danger - An accident occurred when a driver failed to negotiate a sharp curve on a rural road - The plaintiff pas­senger sued the driver and the Rural Muni­cipality - The trial judge found that there was a hidden hazard (unexpected sharp curve) and that the Rural Municipality breached its duty to keep the road in a reasonable state of repair as required by s. 192 of the Saskatchewan Rural Municipal­ity Act where it failed to erect a warning and regulatory sign to warn of the hazard - The trial judge also found that the acci­dent was partially caused by the driver's con­duct in driving too fast for existing road conditions and while his ability to do so was impaired by alcohol - The trial judge apportioned fault 50% to the driver, 35% to the Rural Municipality, and 15% to the plaintiff (for accepting a ride with an impaired driver) - The trial judge con­cluded that, on a balance of probabilities, the driver would have reacted and possibly avoided the accident if he had been given advance warning of the curve - The Supreme Court of Canada held that the trial judge's factual findings on causation were reasonable and there was no palpable and overriding error - See paragraphs 70 to 75.

Practice - Topic 8800

Appeals - Duty of appellate court regard­ing findings of fact by a trial judge - The Supreme Court of Canada discussed the standard of review of an appellate court for findings of fact, stating that such findings were not to be reversed unless it could be established that the trial judge made a palpable and overriding error - The court grouped the numerous bases for deferring to the findings of fact of the trial judge into three basic principles: (1) given the scarcity of judicial resources, setting limits on the scope of judicial review was to be encouraged; (2) deference to the findings of fact of the trial judge promoted the autonomy and integrity of trial proceed­ings; and (3) deference to the findings of fact of the trial judge recognized the exper­tise of the trial judge and his or her advan­tageous position - See paragraphs 10 to 18.

Practice - Topic 8800

Appeals - Duty of appellate court regard­ing findings of fact by a trial judge - The Supreme Court of Canada stated that there was only one standard of review applicable by an appellate court to all factual con­clusions made by a trial judge, being that of palpable and overriding error - The court rejected a suggestion that a lower standard of review should be applied to inferences of fact drawn by a trial judge - To apply a lower standard of review to inferences of fact would be to depart from established jurisprudence of the court, and would be contrary to the principles sup­porting a deferential stance to matters of fact - The court stated that if there was no palpable and overriding error with respect to the underlying facts that the trial judge relied on to draw the inference, then it was only where the inference drawing process itself was palpably in error that an appel­late court could interfere with the factual conclusion - See paragraphs 19 to 25.

Practice - Topic 8800

Appeals - Duty of appellate court regard­ing findings of fact by a trial judge - [See second Municipal Law - Topic 1731 ].

Practice - Topic 8800.1

Appeals - Duty of appellate court regard­ing findings of mixed law and fact by a trial judge - The Supreme Court of Canada discussed the standard of review applicable by an appellate court on questions of mixed fact and law - The court stated that "a finding of negligence by a trial judge involves applying a legal standard to a set of facts, and thus is a question of mixed fact and law. Matters of mixed fact and law lie along a spectrum. Where, for instance, an error with respect to a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of cor­rectness ... Where the legal principle is not readily extricable, then the matter is one of 'mixed law and fact' and is subject to a more stringent standard. The general rule ... is that, where the issue on appeal involves the trial judge's interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error" - See paragraphs 26 to 37.

Practice - Topic 8800.1

Appeals - Duty of appellate court regard­ing findings of mixed law and fact by a trial judge - [See first and third Municipal Law - Topic 1731 ].

Practice - Topic 8807

Appeals - Duty of appellate court regard­ing inferences - [See second Practice - Topic 8800 ].

Torts - Topic 9155

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Municipal authorities - [See first Municipal Law - Topic 1731 ].

Torts - Topic 9156

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Highway authorities - [See first Municipal Law - Topic 1731 ].

Cases Noticed:

Gottardo Properties (Dome) Inc. et al. v. Regional Assessment Commissioner, Region No. 9 et al. (1998), 111 O.A.C. 272; 162 D.L.R.(4th) 574 (C.A.), refd to. [para. 2].

Schwartz v. Canada - see Minister of Nat­ional Revenue v. Schwartz.

Minister of National Revenue v. Schwartz, [1996] 1 S.C.R. 254; 193 N.R. 241, refd to. [paras. 2, 102].

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, refd to. [paras. 2, 102].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161, refd to. [paras. 2, 141].

Underwood v. Ocean City Realty Ltd. (1987), 12 B.C.L.R.(2d) 199 (C.A.), refd to. [para. 3].

Woods Manufacturing Co. v. R., [1951] S.C.R. 504, refd to. [para. 9].

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359, refd to. [paras. 10, 102].

Ingles v. Tutkaluk Construction Ltd. et al., [2000] 1 S.C.R. 298; 251 N.R. 63; 130 O.A.C. 201, refd to. [para. 10].

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. [paras. 10, 145].

Consolboard Inc. v. MacMillan Bloedel (Saskatchewan) Ltd., [1981] 1 S.C.R. 504; 35 N.R. 390, refd to. [para. 12].

Anderson v. Bessemer (City) (1985), 470 U.S. 564 (U.S. Sup. Ct.), refd to. [para. 13].

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81, refd to. [paras. 20, 103].

Palsky v. Humphrey, [1964] S.C.R. 580, refd to. [para. 20].

Hodgkinson v. Simms et al., [1994] 3 S.C.R. 377; 171 N.R. 245; 49 B.C.A.C. 1; 80 W.A.C. 1, refd to. [para. 20].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [paras. 26, 94].

Taylor v. Ankenman and Jaegli Enterprises Ltd., [1981] 2 S.C.R. 2; 40 N.R. 4, reving. (1980), 112 D.L.R.(3d) 297 (B.C.C.A.), reving. (1978), 95 D.L.R.(3d) 82 (B.C.S.C.), refd to. [paras. 29, 111].

Schreiber Brothers Ltd. v. Currie Products Ltd. and Gulf Oil Canada Ltd., [1980] 2 S.C.R. 78; 31 N.R. 335, refd to. [paras. 29, 113].

McCannell v. McLean, [1937] S.C.R. 341, refd to. [para. 30].

Dubé v. Labar, [1986] 1 S.C.R. 649; 68 N.R. 91, refd to. [para. 30].

Canadian National Railway v. Muller, [1934] 1 D.L.R. 768 (S.C.C.), refd to. [para. 30].

Galaske v. O'Donnell et al., [1994] 1 S.C.R. 670; 166 N.R. 5; 43 B.C.A.C. 37; 69 W.A.C. 37, refd to. [para. 31].

St-Jean v. Mercier (2002), 282 N.R. 310 (S.C.C.), refd to. [paras. 33, 110].

Ship Rhone v. Ship Peter A.B. Widener et al., [1993] 1 S.C.R. 497; 148 N.R. 349, refd to. [para. 34].

Partridge v. Langenburg (Rural Municipal­ity), [1929] 3 W.W.R. 555 (Sask. C.A.), refd to. [paras. 38, 88].

Cork v. MacLean (Kirby) Ltd., [1952] 2 All E.R. 402 (C.A.), refd to. [para. 70].

Matthews v. MacLaren (1969), 4 D.L.R.(3d) 557 (Ont. H.C.), refd to. [para. 70].

Shupe v. Pleasantdale (Rural Municipal­ity), [1932] 1 W.W.R. 627 (Sask. C.A.), refd to. [para. 88].

Galbiati v. Regina (City), [1972] 2 W.W.R. 40 (Sask. Q.B.), refd to. [para. 88].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [para. 92].

Board of Education of Toronto v. Ontario Secondary School Teachers' Federation District 15 et al., [1997] 1 S.C.R. 487; 208 N.R. 245; 98 O.A.C. 241, refd to. [para. 103].

D.P. v. C.S., [1992] 4 S.C.R. 141; 159 N.R. 241; 58 Q.A.C. 1, refd to. [para. 105]

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 105].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 105].

Bose Corp. v. Consumers Union of U.S. Inc. (1984), 466 U.S. 485 (U.S. Sup. Ct.), refd to. [para. 107].

Levey v. Rodgers No. 133 (Rural Munici­pality), [1921] 3 W.W.R. 764 (Sask. C.A.), refd to. [para. 115].

Diebel Estate v. Pinto Creek No. 75 (Rural Municipality) et al. (1996), 149 Sask.R. 68 (Q.B.), refd to. [para. 115].

R. v. Jennings, [1966] S.C.R. 532, refd to. [para. 115].

Stetar v. Poirier and Parkland (County) No. 31, [1975] 2 S.C.R. 884; 3 N.R. 311, refd to. [para. 115].

Fafard v. Quebec (City) (1917), 39 D.L.R. 717 (S.C.C.), refd to. [para. 115].

Williams v. North Battleford (Town) (1911), 4 Sask. L.R. 75 (C.A.), refd to. [para. 116].

Nelson v. Waverly (Rural Municipality) (1988), 65 Sask.R. 260 (Q.B.), refd to. [para. 120].

Brant (Joseph) Memorial Hospital v. Koz­iol - see Kolesar Estate v. Brant (Joseph) Memorial Hospital and Malette.

Kolesar Estate v. Brant (Joseph) Memorial Hospital and Malette, [1978] 1 S.C.R. 491; 15 N.R. 302, refd to. [para. 150].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 172].

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. [para. 172].

Swinamer v. Nova Scotia (Attorney Gen­eral) et al., [1994] 1 S.C.R. 445; 163 N.R. 291; 129 N.S.R.(2d) 321; 362 A.P.R. 321, refd to. [para. 172].

Statutes Noticed:

Rural Municipality Act, S.S. 1989-90, c. R-26.1, sect. 192 [para. 86].

Authors and Works Noticed:

American Bar Association, Judicial Ad­ministration Division, Standards Relating to Appellate Courts (1995), pp. 24, 25 [para. 2].

Gibbens, R.D., Appellate Review of Find­ings of Fact (1992), 13 Adv. Q. 445, p. 446 [para. 14].

Goodhart, A.L., Appeals on Questions of Fact (1955), 71 L.Q.R. 402, p. 405 [para. 26].

Kerans, Roger P., Standards of Review Employed by Appellate Courts (1994), generally [para. 2]; pp. 5 [para. 9]; 5 to 10 [para. 107]; 10, 11 [para. 11]; 44 [para. 169]; 90 [paras. 8, 105]; 103 [para. 106].

Wright, Charles Alan, The Doubtful Omniscience of Appellate Courts (1957), 41 Minn. L. Rev. 751, p. 780 [para. 2].

Counsel:

Gary D. Young, Q.C., Denis I. Quon and M. Kim Anderson, for the appellant;

Michael Morris and G.L. Gerrand, Q.C., for the respondent.

Solicitors of Record:

Robertson Stromberg, Saskatoon, Saskatchewan; Quon Ferguson MacKin­non, Saskatoon, Saskatchewan, for the appellant;

Gerrand Rath Johnson, Regina, Saskatchewan, for the respondent.

This appeal was heard on October 2, 2001, before McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court of Canada was delivered in both official languages on March 28, 2002, including the following opinions:

Iacobucci and Major, JJ. (McLachlin, C.J.C. and L'Heureux-Dubé and Arbour, JJ., concurring) - see para­graphs 1 to 77;

Bastarache, J., dissenting (Gonthier, Binnie and LeBel, JJ., concurring) - see paragraphs 78 to 176.