Moreau v. Roman Catholic Bishop of Edmundston, (2011) 371 N.B.R.(2d) 360 (CA)

• Judge: Drapeau, C.J.N.B., Larlee and Quigg, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: January 25, 2011
• Jurisdiction: New Brunswick
• Citations: (2011), 371 N.B.R.(2d) 360 (CA);2011 NBCA 26

Moreau v. R.C. Bishop (2011), 371 N.B.R.(2d) 360 (CA);

    371 R.N.-B.(2e) 360; 959 A.P.R. 360

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2011] N.B.R.(2d) TBEd. MR11.025

Renvoi temp.: [2011] N.B.R.(2d) TBEd. MR11.025

The Roman Catholic Bishop of Edmundston (defendant/appellant) v. Solange Moreau (plaintiff/respondent)

(105-10-CA; 2011 NBCA 26)

Indexed As: Moreau v. Roman Catholic Bishop of Edmundston

Répertorié: Moreau v. Roman Catholic Bishop of Edmundston

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Larlee and Quigg, JJ.A.

March 24, 2011.

Summary:

Résumé:

The plaintiff injured her left shoulder when she fell down steps at a church owned by the defendant. She sued for damages.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 373 N.B.R.(2d) 1; 964 A.P.R. 1, allowed the action and assessed damages. The defendant appealed the finding of liability.

The New Brunswick Court of Appeal dismissed the appeal.

Torts - Topic 34

Negligence - Standard of care - Evidence and proof - The plaintiff, a member of the volunteer choir, injured her left shoulder when she fell down steps at a church owned by the defendant - She sued for damages - The trial judge allowed the action - The defendant appealed, asserting that the trial judge erred in that she, inter alia, defined the applicable standard of care without expert evidence on point and notwithstanding the fact that building standards were not established by the evidence - The New Brunswick Court of Appeal dismissed the appeal - The trial judge held that the standard of care applicable to the defendant required that it provide reasonably safe premises for the purposes contemplated and, correlatively, that it refrain from acts or omissions that an ordinary person might reasonably foresee were likely to cause damage to his or her "neighbour" - This statement of the standard of care fell squarely within the law - "The trial judge was entitled to find the failure to install an extended handrail constituted a breach of the applicable standard of care even though the correctness of that finding was not confirmed by expert testimony. [...] Although expert testimony on the accepted norms may be beneficial in many instances, it is essential only where the context is so esoteric that a person with ordinary judgment and experience could not form a valid opinion on the reasonableness of the conduct in issue. [...] The trial judge found that, in light of all of the circumstances of the case, including the narrowness of the stairway and its component parts, namely four flights of stairs and 27 concrete steps, an ordinary, reasonable and prudent person would have installed an extended handrail so that users 'could protect themselves and avoid falls by holding onto it when descending the stairs and grabbing hold of it if they lost their balance'. This finding of fact cannot be set aside since there was no palpable and overriding error in the judge's assessment of the pertinent evidence." - See paragraphs 15 to 18.

Torts - Topic 49.40

Negligence - Standard of care - Particular persons and relationships - Charitable or non-profit organizations - Churches - [See Torts - Topic 34 ].

Torts - Topic 61

Negligence - Causation - Causal connection - The plaintiff, a member of the volunteer choir, injured her left shoulder when she fell down steps at a church owned by the defendant - She sued for damages - The trial judge allowed the action - The defendant appealed, asserting that the trial judge erred in that she determined a causal link existed between the failure to meet the standard of care as she defined it, on the one hand, and the plaintiff's fall, on the other, without any evidence whatsoever in support - The New Brunswick Court of Appeal dismissed the appeal - The onus was on the plaintiff to prove on a balance of probabilities that his or her losses would not have occurred without the tortfeasor's negligence - The plaintiff was a mature and responsible person - She was a retired teacher and the volunteer director of the church choir - The plaintiff, who was markedly obese at the time of the mishap, had to be alive to the loss of agility associated with such a condition - Further, her movements in the stairway in question were the epitome of caution - The trial judge was entitled, in this set of circumstances, to draw the inference that the plaintiff would probably have used a handrail wisely, if there had been one in the stairwell, and that, as a result, she would have avoided losing her balance and falling - The trial judge's conclusions on the issue of causation were amply justified - See paragraphs 19 to 21.

Torts - Topic 3583

Occupiers' liability or negligence for dangerous premises - Negligence of occupier - Stairs, steps or landings - [See Torts - Topic 34 ].

Torts - Topic 6615

Defences - Contributory negligence - Particular cases - Unsafe apparel or footwear - The plaintiff, a member of the volunteer choir, injured her left shoulder when she fell down steps at a church owned by the defendant - She sued for damages - The trial judge allowed the action - The defendant appealed, asserting that the trial judge erred in that she exonerated the plaintiff of all liability - The New Brunswick Court of Appeal dismissed the appeal - The trial judge found that the plaintiff descended the stairs slowly and carefully, and she rejected the defendant's contention that the plaintiff was not wearing appropriate footwear - The trial judge concluded that the plaintiff began to lose her balance when she slipped on the final landing that was painted "with smooth rather than rough grey paint" - The trial judge found there was no lack of care on the plaintiff's part when she slipped on the smooth surface of the last landing - The defendant failed to establish any fault on the plaintiff's part - See paragraphs 22 to 25.

Délits civils - Cote 34

Négligence - Norme de conduite - Preuve - [Voir Torts - Topic 34 ].

Délits civils - Cote 49.40

Négligence - Norme de conduite - Personnes et relations particulières - Organismes charitables et à but non lucratif - Églises - [Voir Torts - Topic 49.40 ].

Délits civils - Cote 61

Négligence - Causalité - Lien de causalité - [Voir Torts - Topic 61 ].

Délits civils - Cote 3583

Responsabilité ou négligence de l'occupant pour des lieux dangereux - Négligence de l'occupant - Escaliers, marches ou paliers - [Voir Torts - Topic 3583 ].

Délits civils - Cote 6615

Défenses - Négligence contributive - Cas particuliers - Vêtement ou chaussure défectueux - [Voir Torts - Topic 6615 ].

Cases Noticed:

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. [para. 15].

Carper v. Oakway Holdings Ltd., [1991] B.C.T.C. Uned. E26 (S.C.), refd to. [para. 15].

Robins v. Tremblay, [1993] O.J. No. 4691 (Gen. Div.), refd to. [para. 15].

Basque v. Saint John (City) (2002), 250 N.B.R.(2d) 207; 650 A.P.R. 207; 2002 NBQB 131 (T.D.), refd to. [para. 16].

McAllister v. Wal-Mart Canada Inc. (2000), 228 N.B.R.(2d) 230; 588 A.P.R. 230 (C.A.), refd to. [para. 16].

Spokane & Inland Empire Co. v. United States (1916), 241 U.S. 344, refd to. [para. 17].

Salem v. United States Lines Co. (1962), 370 U.S. 31, refd to. [para. 17].

Hopkins (Emily S.) v. Fox & Lazo Realtors et al. (1993), 132 N.J. 426, refd to. [para. 17].

Evans v. Mathis Funeral Home Inc. (1993), 996 F.2d 266, refd to. [para. 17].

Beshara v. Dysart (1998), 207 N.B.R.(2d) 14; 529 A.P.R. 14 (C.A.), refd to. [para. 17].

Blackwater et al. v. Plint et al., [2005] 3 S.C.R. 3; 339 N.R. 355; 216 B.C.A.C. 24; 356 W.A.C. 24; 2005 SCC 58, refd to. [para. 19].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 19].

Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475 (H.L.), refd to. [para. 20].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 20].

Roy v. Doucet (2005), 288 N.B.R.(2d) 12; 751 A.P.R. 12; 2005 NBCA 84, refd to. [para. 22].

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

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. 22].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 22].

Gallant v. Thibodeau (1998), 206 N.B.R.(2d) 336; 526 A.P.R. 336 (C.A.), refd to. [para. 22].

Authors and Works Noticed:

Brown, Russell, The Possibility of "Inference Causation": Inferring Cause-in-Fact and the Nature of Legal Fact-Finding (2010), 55 McGill L.J. 1, generally [para. 20].

Counsel:

Avocats:

André G. Richard, Q.C., for the appellant;

Bernard Valcourt, Q.C., for the respondent.

This appeal was heard on January 25, 2011, by Drapeau, C.J.N.B., Larlee and Quigg, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered by Drapeau, C.J.N.B., on March 24, 2011.