Manitoba Public Insurance Corp. v. Trumbla et al., 2011 MBQB 80

• Judge: Saull, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: April 11, 2011
• Jurisdiction: Manitoba
• Citations: 2011 MBQB 80;(2011), 263 Man.R.(2d) 269 (QB)

MPIC v. Trumbla (2011), 263 Man.R.(2d) 269 (QB)

MLB headnote and full text

Temp. Cite: [2011] Man.R.(2d) TBEd. MY.007

The Manitoba Public Insurance Corporation (plaintiff) v. Joseph Wayne Trumbla and Nick Bodnar (defendants)

(CI 09-01-61366; 2011 MBQB 80)

Indexed As: Manitoba Public Insurance Corp. v. Trumbla et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Saull, J.

April 11, 2011.

Summary:

The plaintiff insurer sued the defendant owner and driver (employer/employee) as a result of a motor vehicle collision between the plaintiff's insured and the defendant driver. Damages were agreed to. At issue was liability for causing the accident. A sub-issue was whether the accident occurred at an "intersection" within the meaning of the Highway Traffic Act, which required determining whether an adjoining road was a "highway" within the meaning of the Act.

The Manitoba Court of Queen's Bench held that the adjoining road was not a highway and the defendant driver was 100% responsible for causing the accident.

Motor Vehicles - Topic 44

General and definitions - Definitions - Highway defined - At issue was whether a road was a highway as defined in s. 1(1) of the Highway Traffic Act - The Manitoba Court of Queen's Bench stated that the authorities cited by the defendants firmly established that whether or not a place was a "highway" was a question of fact to be determined on the basis of the totality of the circumstances in any given case - That said, certain basic principles or guidelines emerged from the authorities that assisted in that determination, as follows: (1) was the road privately owned; (2) was the general public permitted unrestricted access to the road; (3) was the road restricted to any particular segment of the public or to certain times of day or night; (4) what was the paramount use of the property that the road was on? - If the evidence did not adequately answer these questions then the court had to step back and consider what other indicia were available so that by inference or otherwise it could determine the issue - See paragraphs 47 and 48.

Motor Vehicles - Topic 44

General and definitions - Definitions - Highway defined - Defendants argued that their motor vehicle collision occurred at an intersection within the meaning of s. 1(1) of the Highway Traffic Act and therefore s. 116(3)(c) applied - Section 116(3)(c) prohibited driving on the left side of a directional dividing line upon, or when approaching and within 90 metres of an intersection - This necessitated determining whether an adjoining side road was a "highway" within the meaning of s. 1(1) - The Manitoba Court of Queen's Bench stated that there was no evidence whether the road was publicly or privately owned or that the general public was permitted unrestricted access - On the evidence before it, the court concluded that: there were three businesses that were set back from the highway, accessible only by the road; the road's only purpose was to access the parking lots to the three businesses; it was not a through road, but ended at the businesses; it was graded below the surface level of the highway in an area where there was very little development on either side of the highway; the road ended at the highway on the east side and did not continue on the west side of the highway; there were no signs or lines on the highway warning of an upcoming intersection where it would be illegal to pass; the highway, both before and after the road, was clearly marked as an area where passing was permitted (i.e., marked with a broken line) - The court inferred from this that the provincial highway authorities had deemed this area to be a safe passing zone - In other words, the road was not considered to be a highway for purposes of determining that the meeting of the road and the highway was an intersection - There was a stop sign on the road facing westbound travellers as they approached the highway - The "back" of the sign, only, faced the highway - The existence of a stop sign in such circumstances was of little or no assistance to the court in determining the issue - The court held that the collision did not take place at an intersection - See paragraphs 49 to 55.

Motor Vehicles - Topic 2209

Regulation of vehicles and traffic - Overtaking other vehicles - Passing without sounding horn - Smith pulled out to pass Trumbla who was driving his tractor on the shoulder of the highway - While doing so, Trumbla pulled the tractor back onto the highway and collided with Smith's vehicle - Smith's insurer sued Trumbla and the tractor's owner (Trumbla's employer) - The Manitoba Court of Queen's Bench allowed the action - Trumbla was 100% responsible for causing the accident - Smith pulled out to pass when it was safe to do so and provided ample room when passing by the tractor safely - While he did not sound the horn, given the weather conditions, the amount of traffic (or lack thereof), the location of the tractor on the shoulder of the highway, and the berth between his vehicle and the tractor as he passed, there was no need to do so - Section 44(1) of the Highway Traffic Act required that a horn be sounded "whenever it is reasonably necessary" - The court was satisfied that Trumbla drove the tractor across the highway without warning causing the collision and that at no time did he activate the left turn signal to indicate the intention to make a left turn - See paragraphs 56 to 61.

Motor Vehicles - Topic 2211

Regulation of vehicles and traffic - Overtaking other vehicles - Passing near intersection - Smith pulled out to pass Trumbla who was driving his tractor on the shoulder of the highway - While doing so, Trumbla pulled the tractor back onto the highway and collided with Smith's vehicle - Smith's insurer sued Trumbla and the tractor's owner - The defendants argued that the scene of their motor vehicle collision was at an intersection within the meaning of s. 1(1) of the Highway Traffic Act and therefore s. 116(3)(c) applied - Section 116(3)(c) prohibited driving on the left side of a directional dividing line upon, or when approaching and within 90 metres of, an intersection - This necessitated a determination of whether a particular side road was a "highway" within the meaning of s. 1(1) - The Manitoba Court of Queen's Bench held that the adjoining road was not a highway and Trumbla was 100% responsible for causing the accident - The court opined that had it found that the collision occurred at an intersection, it would have likewise found for the plaintiff - Even if s. 116(3) applied, it did not follow that Smith was in any way responsible for the collision - Smith acted in accordance with the markings on the highway that permitted him to pass and took all reasonable precautions when attempting to do so - Even if the location where he attempted to pass was "technically" an intersection, it was not one that was readily identifiable as such especially where the markings on the highway indicated that passing was permitted - Trumbla, on the other hand, simply did not look either over his shoulder or in his mirror before turning left because if he had done so he would have had to have seen Smith's vehicle - Truimbla did not engage the tractor's turn signal - See paragraphs 63 and 64.

Torts - Topic 401

Negligence - Motor vehicle - Rules of the road - What constitutes a road or highway - [See both Motor Vehicles - Topic 44 ].

Torts - Topic 449

Negligence - Motor vehicle - Rules of the road - Driving on shoulder then re-entering highway - [See Motor Vehicles - Topic 2209 and Motor Vehicles - Topic 2211 ].

Torts - Topic 533

Negligence - Motor vehicle - Signals and warnings - Horn - Overtaking another vehicle - [See Motor Vehicles - Topic 2209 ].

Cases Noticed:

R. v. Wilson (1990), 24 M.V.R.(2d) 284 (Man. Prov. Ct.), consd. [para. 47].

R. v. Bowler (A.J.) (2007), 218 Man.R.(2d) 193; 2007 MBQB 200, consd. [para. 47].

Perchotte v. Blackmon (2001), 157 Man.R.(2d) 64; 2001 MBQB 122, consd. [para. 47].

R. v. Douglas (1997), 35 O.R.(3d) 197 (C.J. Prov. Div.), consd. [para. 47].

Shah v. Becamon (2009), 246 O.A.C. 24; 308 D.L.R.(4th) 80; 2009 ONCA 113, consd. [para. 47].

Manitoba Public Insurance Corp. v. Trott, Hec-Way Ltd. and Burton (1981), 25 Man.R.(2d) 1 (Co. Ct.), refd to. [para. 63].

Counsel:

Trevor M. Brown, for the plaintiff;

Stuart J. Blake, for the defendants.

This action was heard by Saull, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on April 11, 2011.