Levesque et al. v. Canadian Pacific Railway and Toner, (1988) 91 N.B.R.(2d) 380 (TD)

• Judge: McLellan, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: June 08, 1988
• Jurisdiction: New Brunswick
• Citations: (1988), 91 N.B.R.(2d) 380 (TD)

Levesque v. CPR (1988), 91 N.B.R.(2d) 380 (TD);

    91 R.N.-B.(2e) 380; 232 A.P.R. 380

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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Joseph Levesque, by his mother and next friend, Brenda Levesque and Camile Levesque and Brenda Levesque (plaintiffs) v. Canadian Pacific Railway, a corporate body incorporated by Special Act of the Parliament of Canada and having its Head Office at the City of Montreal, with a Branch Office and doing business in Grand Falls, in the County of Victoria and Province of New Brunswick (first named defendant) and Conrad Toner, of the Town of Grand Falls in the County of Victoria and Province of New Brunswick (second named defendant)

(W/C/338/80)

Indexed As: Levesque et al. v. Canadian Pacific Railway and Toner

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Woodstock

McLellan, J.

June 10, 1988.

Summary:

A four and one-half year old boy slid on a toboggan down a private snow-covered driveway onto a private level railway crossing. An oncoming train struck the boy, severing his arm. The boy's parents sued the owner and operator of the train and the owner of the driveway for damages. The issues of liability and damages were severed.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment reported 81 N.B.R.(2d) 121; 205 A.P.R. 121, considering both negligence and occupiers' liability, dismissed the action and held that neither the railway nor the owner was liable for the boy's injury. The parents appealed.

The New Brunswick Court of Appeal, in a judgment reported 91 N.B.R.(2d) 376; 232 A.P.R. 376, dismissed the appeal. Subsequently, a hearing was held on the issue of costs.

The New Brunswick Court of Queen's Bench, Trial Division, awarded costs to the defendants.

Practice - Topic 7610

Costs - Taxation of costs - "Amount involved" for purposes of applying scale of costs - Levesque claimed damages for the loss of an arm in a motor vehicle accident - Liability was severed from the assessment of damages and Levesque's action was dismissed - The New Brunswick Court of Queen's Bench, Trial Division, referred to damage awards for the loss of an arm for purposes of determining the "amount involved" for fixing an award of costs to the defendants.

Cases Noticed:

Houle v. Calgary (1983), 44 A.R. 271 (Alta. Q.B.), refd to. [para. 7].

Barton v. Weaver (1981), 34 N.B.R.(2d) 175; 85 A.P.R. 175 (Q.B.), revd. 36 N.B.R.(2d) 483; 94 A.P.R. 483 (C.A.), refd to. [para. 7].

Anderson v. N.B.E.P.C. (1982), 41 N.B.R.(2d) 464; 107 A.P.R. 464 (C.A.), refd to. [para. 7].

Lecky v. Dionne (1979), 25 N.B.R.(2d) 192; 51 A.P.R. 192 (Q.B.), refd to. [para. 7].

Statutes Noticed:

Rules of Court (N.B.), rule 59.09.

Counsel:

John C. Friel, for the plaintiffs;

Helene Beaulieu, for the defendant, C.P. Rail;

Douglas A.M. Evans, for the defendant, Conrad Toner.

This application was heard by McLellan, J., of the New Brunswick Court of Queen's Bench on June 8, 1988. The decision of McLellan, J., was delivered on June 10, 1988.