Ogloff v. Yacyshyn et al., (2010) 353 Sask.R. 308 (QB)

• Judge: Gunn, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 14, 2010
• Jurisdiction: Saskatchewan
• Citations: (2010), 353 Sask.R. 308 (QB);2010 SKQB 144

Ogloff v. Yacyshyn (2010), 353 Sask.R. 308 (QB)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. AP.057

Wesley Ogloff and Debbie Ogloff, Carrying on Business in Partnership under the Firm Name and Style of "Gateway Service" (plaintiffs) v. Dwight Yacyshyn and the Government of Saskatchewan (defendants)

(2008 Q.B.G. No. 1476; 2010 SKQB 144)

Indexed As: Ogloff v. Yacyshyn et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Gunn, J.

April 14, 2010.

Summary:

The plaintiffs alleged that the defendant truck driver (Yacyshyn), while acting in the course of his employment for the defendant Government of Saskatchewan, and while driving a truck owned by the Province, collided with gas pumps and related foundations and equipment at the plaintiffs' service station causing damage. The defendants denied that Yacyshyn was negligent, and stated that if he was negligent, his negligence did not cause the damage alleged. The defendants also pleaded contributory negligence. Alternatively, the defendants asserted that the plaintiffs' action was completely barred by s. 52(1) of the Highway and Transportation Act.

The Saskatchewan Court of Queen's Bench held that the action was not barred by s. 52 of the Act, Yacyshyn was negligent, the plaintiffs were not contributorily negligent and Saskatchewan was vicariously liable for Yacyshyn's negligence. The court awarded the plaintiffs $40,706.74 in damages and costs of the action to be taxed.

Crown - Topic 1604

Torts by and against Crown - Actions against Crown - Public authority protection legislation - Persons or acts protected - The plaintiffs alleged that the defendant truck driver (Yacyshyn), while acting in the course of his employment for the defendant Government of Saskatchewan, and while driving a truck owned by Saskatchewan, collided with gas pumps and related foundations and equipment at the plaintiffs' service station (Gateway Service) causing damage - Yacyshyn was part of a road maintenance crew responsible for painting road lines on provincial highways - Yacyshyn decided to stop at Gateway Service in order to purchase a bottle of water for his own personal use - It was not uncommon and was considered to be accepted practice for painting crews to stop at convenience stores for convenience items during their regular work hours - The Saskatchewan Court of Queen's Bench held that the action was not barred by s. 52 of the Highway and Transportation Act - The court considered, inter alia, that stopping for a bottle of water was not "inherently of a public nature" - The plaintiffs' complaint would be the same in respect of any driver who lost control of his vehicle and damaged their property - The plaintiffs were the only parties entitled to bring this claim - Further, their claim correlated not to a public duty, but to a private duty owed by all drivers on private property - This was not simply a private aspect of actions done in the execution of public duties - See paragraphs 9 to 28.

Torts - Topic 3577.3

Occupiers' liability or negligence for dangerous premises - Negligence of occupier - Parking lots - The plaintiffs alleged that defendant truck driver (Yacyshyn), while acting in the course of his employment for the defendant Government of Saskatchewan, and while driving a truck owned by Saskatchewan, collided with gas pumps and related foundations and equipment at the plaintiffs' service station causing damage - Yacyshyn estimated his speed at about 5-7 km per hour at the time of the collision - One of the plaintiffs, who witnessed the accident, estimated Yacyshyn's speed at about 10 km per hour - The temperature was around zero degrees, it had been raining and the parking lot was very icy - The Saskatchewan Court of Queen's Bench held that Yacyshyn was negligent given the type of vehicle he was driving and the road conditions - If he had been travelling more slowly, he could have avoided the accident - The defendants did not prove contributory negligence where they presented no evidence as to the standard of care which would be considered reasonable for a convenience store owner in these circumstances, and given the evidence that it had been raining on and off all day and freezing - See paragraphs 4 to 8 and 29 to 34.

Torts - Topic 3613

Occupiers' liability or negligence for dangerous premises - Negligence of particular occupiers - Parking lots - [See Torts - Topic 3577.3 ].

Torts - Topic 6610

Defences - Contributory negligence - Particular cases - Motor vehicle accidents - [See Torts - Topic 3577.3 ].

Torts - Topic 6619

Defences - Contributory negligence - Particular cases - Dangerous premises - [See Torts - Topic 3577.3 ].

Cases Noticed:

Bateman v. Saskatchewan (Minister of Highways and Transportation) (2008), 319 Sask.R. 286; 2008 SKQB 336, dist. [para. 10].

Des Champs v. Conseil des écoles séparées catholiques de langue française de Prescott- Russell et al., [1999] 3 S.C.R. 281; 245 N.R. 201; 125 O.A.C. 279; 177 D.L.R.(4th) 23, appld. [para. 11].

Stieber v. Canada (Attorney General), [2004] 5 W.W.R. 83; 194 B.C.A.C. 26; 317 W.A.C. 26; 2004 BCCA 44, appld. [para. 19].

Berendsen v. Ontario, [2001] 2 S.C.R. 849; 275 N.R. 175; 150 O.A.C. 270; 2001 SCC 55, refd to. [para. 20].

Pelley Enterprises Ltd. v. Brazil and Province of Newfoundland (1982), 40 Nfld. & P.E.I.R. 264; 115 A.P.R. 264; 143 D.L.R.(3d) 555 (Nfld. C.A.), refd to. [para. 22].

Statutes Noticed:

Highways and Transportation Act, S.S. 1997, c. H-3.01, sect. 52(1) [para. 9].

Counsel:

David A. Gerrand, Q.C., for the plaintiffs;

Michael E. Tomka, for the defendants.

This case was heard by Gunn, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following decision on April 14, 2010.