Johnson v. Halifax (City) and Dominix, (1975) 12 N.S.R.(2d) 547 (CA)

• Judge: MacKeigan, C.J.N.S., Coffin and Cooper, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 21, 1975
• Jurisdiction: Nova Scotia
• Citations: (1975), 12 N.S.R.(2d) 547 (CA)

Johnson v. Halifax (1975), 12 N.S.R.(2d) 547 (CA);

  6 A.P.R. 547

MLB headnote and full text

Johnson v. City of Halifax and Dominix

Indexed As: Johnson v. Halifax (City) and Dominix

Nova Scotia Supreme Court

Appeal Division

MacKeigan, C.J.N.S., Coffin and Cooper, JJ.A.

August 4, 1975.

Summary:

This case arose out of a claim for damages for personal injuries arising out of a motor vehicle accident. The accident occurred at approximately 7 a.m. on March 13, 1972 at a T intersection in Lower Sackville, Nova Scotia. The intersection was a T intersection of a side road and a principal or main highway. The plaintiff was travelling on the main highway. The defendant driver was driving a municipal truck which was salting icy streets. The defendant driver attempted to climb a steep icy hill and lost control of the truck and the truck slid down the hill and into the intersection and struck the plaintiff's vehicle. The municipal truck entered the intersection from a side road and was not faced with a stop sign. The Trial Division held that the defendant driver was 100% at fault for entering such an intersection from a side road when it created a hazard for drivers using the main highway. The Trial Division stated that the driver in the circumstances should have anticipated that he might lose control of the truck. However, the Trial Division dismissed the plaintiff's action against the City of Halifax and its employee because of the failure of the plaintiff to give the defendants twenty days' notice of action in writing as required by s. 569 of the Halifax City Charter. The Trial Division held that s. 569 required twenty clear days' notice. The judgment of the Trial Division is set out below - see paragraphs 27 to 69.

On appeal to the Nova Scotia Court of Appeal the appeal was allowed in part.

The Nova Scotia Court of Appeal held that s. 569(1) of the Halifax City Charter did not mean twenty clear days' notice.

The Nova Scotia Court of Appeal stated that the time calculation should be in accordance with the Interpretation Act and that the first day must be excluded and the last day must be included. In accordance with such a time calculation the Nova Scotia Court of Appeal dismissed the action against the employee of the City of Halifax and allowed the action against the City of Halifax. The employee was served with the notice of action one day after the notice of action was served on the City - see paragraph 5.

Municipal Law - Topic 6243

Actions against a municipality - Notice of action - Time - Calculation of time for service of a notice of action - Whether s. 569(1) of the Halifax City Charter which contained the words "until twenty days' notice in writing is given" required twenty clear days' notice - Interpretation Act, s. 18(1) - The Nova Scotia Court of Appeal held that s. 569(1) of the Halifax City Charter did not mean twenty clear days' notice - The Nova Scotia Court of Appeal stated that the time calculation should be in accordance with the Interpretation Act and that the first day must be excluded and the last day must be included - See paragraphs 1 to 26 and 61 to 68.

Torts - Topic 388

Negligence - Motor vehicle - Standard of care of a driver - Anticipation - The defendant driver of a municipal truck was salting an icy street in the early morning - The defendant driver while attempting to climb a steep icy hill lost control of his truck and it slid down the hill and into an intersection and struck the plaintiff's vehicle - The Nova Scotia Supreme Court, Trial Division, stated that the driver in the circumstances should have anticipated that he might lose control of the truck - See paragraph 42.

Torts - Topic 436

Negligence - Motor vehicle - Rules of the road - Intersection - Entering an intersection from a side road - The defendant entered a T intersection of a side road and a principal or more important highway - The defendant entered the intersection from the side road and was not faced with a stop sign - The Nova Scotia Supreme Court, Trial Division, stated that a driver entering such an intersection from a side road should not enter the intersection if a hazard is created for drivers using the principal or main highway - See paragraph 41.

Damage Awards - Topic 178

Neck injuries - Whiplash type injury to cervical and lumbar spine resulting in a post-traumatic syndrome - Aggravation of pre-existing condition - 55 year old male fireman - Impairment of earning capacity - Permanent partial disability - The Nova Scotia Supreme Court, Trial Division, awarded the plaintiff $20,000.00 general damages for personal injuries - See paragraphs 43 to 60.

Damages - Topic 1733

Deductions from claim for loss of wages because of payments made by a third party - Sick leave benefits - The Nova Scotia Supreme Court, Trial Division, did not deduct sick leave benefits from the plaintiff's claim for loss of wages because the plaintiff was entitled to the sick leave benefits pursuant to a collective agreement - See paragraph 60.

Cases Noticed:

Thompson v. Stimpson, [1960] 3 All E.R. 500: [1961] 1 Q.B. 195 (Q.B.D.), not folld. [para. 7] & folld. [para. 63].

R. v. Long, [1959] 3 All E.R. 560, folld. [para. 8].

Schnabel v. Allard, [1966] 3 All E.R. 816, folld. [para. 9].

In re Railway Sleepers Supply Company (1885), L.R. 29 Ch.D. 204, dist. [para. 11] & folld. [para. 66].

R. v. Justices of Shropshire (1838), 8 Ad. & E. 173; 112 E.R. 803, dist. [para. 12].

The Chambers Electric Light & Power Co. v. Crowe (1912-13), 46 N.S.R. 141, folld. [para. 13].

Warr v. Warr, [1975] 1 All E.R. 85 (Family Division), folld. [para. 14].

Lester v. Garland (1808), 15 Ves 248; [1803-13] All E.R. 436. refd to. [para. 14].

R. v. St Mary, Warwick (Inhabitants) (1853), 1 E & B 816, folld. [para. 15].

Re North, [1895] 2 Q.B. 264, refd to. [para. 15].

Belfield v. Belfield, [1945] V.L.R. 231, refd to. [para. 17].

Barrowman v. Fader et al. (1898), 31 N.S.R. 29, folld. [para. 20].

Naughton v. Canadian Pacific Railway Company, [1947] O.W.N. 328, folld. [para. 25].

Young v. Higgon (1840), 6 M. & W. 50; 151 E.R. 317, folld. [para. 64].

Statutes Noticed:

Motor Vehicle Act, R.S.N.S. 1967, c. 191, sect. 110 [para. 38]; sect. 121(1) [para. 39].

Halifax City Charter, S.N.S. 1963, c. 52, sect. 569 [para. 2].

Interpretation Act, R.S,N.S. 1967, c. 151, sect. 18(1) [para. 21].

Counsel:

L.W. Scaravelli, for the appellant;

D.R. Chipman, Q.C., for the respondents.

This appeal was heard by the Nova Scotia Court of Appeal on May 21, 1975. Judgment was delivered by the Nova Scotia Court of Appeal on August 4, 1975 and the following opinions were filed:

COOPER, J.A. - see paragraphs 1 to 23

MacKEIGAN, C.J.N.S. - see paragraphs 24 to 26

MacKEIGAN, C.J.N.S. and COFFIN, J.A. concurred with COOPER, J.A.