Melanson v. Léger et al., (2005) 279 N.B.R.(2d) 276 (CA)

• Jurisdiction: New Brunswick
• Court: Court of Appeal (New Brunswick)
• Judge: Turnbull, Larlee and Deschênes, JJ.A.
• Citation: (2005), 279 N.B.R.(2d) 276 (CA),2005 NBCA 19
• Date: 10 February 2005

Melanson v. Léger (2005), 279 N.B.R.(2d) 276 (CA);

    279 R.N.-B.(2e) 276; 732 A.P.R. 276

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: [2005] N.B.R.(2d) TBEd. FE.028

John Paul Melanson (appellant) v. Patty Léger, Monette Saulnier and the Province of New Brunswick (respondents)

John Paul Melanson (appellant) v. Jeffrey James Taylor, Patty Léger and Monette Saulnier (respondents)

John Paul Melanson (appellant) v. Monette Saulnier, Patty Léger and the Province of New Brunswick (respondents)

John Paul Melanson (appellant) v. Patty Léger (respondent)

(129/03/CA; 2005 NBCA 19)

Indexed As: Melanson v. Léger et al.

New Brunswick Court of Appeal

Turnbull, Larlee and Deschênes, JJ.A.

February 10, 2005.

Summary:

A car driven by Melanson and a car driven by Léger collided at an intersection. A num­ber of actions were brought arising from the accident. At issue was liability for the colli­sion. The Province of New Brunswick was added as a third party on the basis that it was negligent in the design, construction and operation of the intersection.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at [2003] N.B.R.(2d) (Supp.) No. 40, found that Melanson drove through the intersection on a red light and was solely responsible and liable for the accident. Melanson appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Evidence - Topic 4254

Witnesses - Privilege - Lawyer-client communications - Waiver - General - A car driven by Melanson and a car driven by Léger collided at an intersection - The trial judge found that Melanson was solely responsible for the accident - Melanson appealed, arguing that the trial judge should have allowed his counsel to obtain a copy of a statement given by an indepen­dent witness - The witness had given the statement to an adjuster, in the presence of Léger's lawyer - Melanson argued that the claim of privilege over the statement was waived at trial because the witness went over the statement before giving his evi­dence with a view to refreshing his mem­ory - The New Brunswick Court of Appeal rejected the ground of appeal - The witness had an independent recollection and did not use the statement to refresh his mem­ory - Privilege was not waived - See para­graphs 6 to 11.

Torts - Topic 549

Negligence - Motor vehicle - Evidence and burden of proof - General - [See Torts - Topic 641 ].

Torts - Topic 641

Negligence - Motor vehicle - Traffic con­trol devices - General - A car driven by Melanson and a car driven by Léger col­lided at an intersection - The trial judge found that Melanson drove through the intersection on a red light and was solely responsible for the accident - Melanson appealed - He argued that the traffic light facing Léger could not have been green when she entered the intersection given the evidence of the expert witnesses that the traffic standard required some previous activation for it to turn green - Melanson also referred to the evidence of an inde­pendent witness that he did not recall seeing any pedestrians or other traffic which could have activated the light - The New Brunswick Court of Appeal rejected the ground of appeal - The trial judge believed the evidence of Léger and the independent witness that Léger's light was green - He accepted the evidence of those witnesses in preference to the expert wit­nesses and he was entitled to conclude as he did based on credibility - See para­graphs 15 to 19.

Cases Noticed:

Lamey v. Rice (2000), 227 N.B.R.(2d) 295; 583 A.P.R. 295 (C.A.), refd to. [para. 11].

O'Donnell v. O'Blenis (2004), 269 N.B.R.(2d) 273; 707 A.P.R. 273; 2004 NBCA 23, refd to. [para. 14].

Gallant v. Thibodeau (1998), 206 N.B.R.(2d) 336; 526 A.P.R. 336 (C.A.), refd to. [para. 14].

Arsenault v. Belanger (2002), 254 N.B.R.(2d) 353; 664 A.P.R. 353 (C.A.), refd to. [para. 14].

McAdam et al. v. McIlveen et al. (2002), 252 N.B.R.(2d) 35; 658 A.P.R. 35 (C.A.), refd to. [para. 14].

Blacklock v. Trevathan, [1993] N.B.J. No. 268 (C.A.), refd to. [para. 19].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 21].

Reid v. Hatty (2005), 279 N.B.R.(2d) 202; 732 A.P.R. 202; 2005 NBCA 5, refd to. [para. 22].

Lurtz v. Duchesne et al., [2003] O.T.C. 320 (Sup. Ct.), refd to. [para. 26].

Bullock v. London General Omnibus Co., [1907] 1 K.B. 264, refd to. [para. 33].

Sanderson v. Blyth Theatre Co., [1903] 2 K.B. 533 (C.A.), refd to. [para. 33].

Comeau v. Saint John Regional Hospital et al. (2003), 256 N.B.R.(2d) 356; 670 A.P.R. 356; 2003 NBCA 17, refd to. [para. 35].

Authors and Works Noticed:

Orkin, Mark M., The Law of Costs (2nd Ed. 1987), pp. 2-26.1, 2-28 [para. 34].

Counsel:

Henry J. Murphy, for the appellant, John Paul Melanson;

Lucie LaBoissonnière, for the respondent, Patty Léger;

Terrence L.S. Teed, Q.C., for the respon­dent, Jeffrey James Taylor;

Stéphane F. Viola, for the respondent, Monette Saulnier;

Doug Evans, Q.C., and Danys Delaquis, for the respondent, Patty Léger;

David D. Eidt and Chantal Gauthier, for the respondent, The Province of New Brunswick.

This appeal was heard on September 29 and 30, 2004, before Turnbull, Larlee and Deschênes, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered in both official languages by Larlee, J.A., on Febru­ary 10, 2005.