Rances v. Scaplen et al., 2008 ABQB 708

• Judge: Nielsen, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 11, 2008
• Citations: 2008 ABQB 708;(2008), 462 A.R. 1 (QB)

Rances v. Scaplen (2008), 462 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. DE.052

Francisco Rances and Virginia Rances (plaintiffs) v. Robert B. Scaplen, Leonard Todd Bolton, Kevin J. Arsenault, Greyhound Canada Transportation Corp., TCM Transport Ltd. and Trimac Transportation Services Ltd. (defendants)

(0604 00165; 2008 ABQB 708)

Indexed As: Rances v. Scaplen et al.

Alberta Court of Queen's Bench

Judicial District of Grande Prairie

Nielsen, J.

November 25, 2008.

Summary:

The plaintiffs sued the defendant drivers (Arsenault, Bolton and Scaplen) for damages for injuries suffered as a result of two collisions between two tractor-trailer units (the Trimac Unit and the TCM Unit) and a Greyhound passenger bus. Arsenault was driving the Trimac Unit on the westbound lane on Highway 43 when he encountered thick fog. He slowed down and was moving forward very slowly when the rear of the Trimac Unit was struck by the TCM Unit, driven by Bolton (first impact). The Trimac Unit and the TCM Unit were stationary when a passenger bus, driven by Scaplen, collided with the rear of the TCM Unit very shortly thereafter (the second impact). The plaintiffs, passengers in the bus, were injured. Liability was the only issue at trial.

The Alberta Court of Queen's Bench held that the plaintiffs suffered significant personal injuries as a result of the accident and were entitled to recover the damages which they had suffered. All of the defendants were at fault for the accident. The apportionment of the fault was 30% to Arsenault and Trimac, 30% to Bolton and TCM and 40% to Scaplen and Greyhound.

Carriers - Topic 3064

Liability to passengers - Standard of care - Higher duty - When applicable - The plaintiffs sued the defendant drivers (Arsenault, Bolton and Scaplen) for damages for injuries suffered as a result of two collisions between two tractor-trailer units (the Trimac Unit and the TCM Unit) and a Greyhound passenger bus - Arsenault was driving the Trimac Unit on the westbound lane on Highway 43 when he encountered thick fog - He slowed down and was moving forward very slowly when the rear of the Trimac Unit was struck by the TCM Unit, driven by Bolton (first impact) - The Trimac Unit and the TCM Unit were stationary when a passenger bus, driven by Scaplen, collided with the rear of the TCM Unit very shortly thereafter (the second impact) - The plaintiffs, passengers in the bus, were injured - The plaintiffs asserted that as Scaplen was operating the bus for Greyhound as a common carrier, the Greyhound defendants owed a higher duty of care to the plaintiffs than the other defendants - The Alberta Court of Queen's Bench held that while Greyhound was not an insurer of the safety of its passengers, it bore a very high duty of care should injury to any of its passengers occur - Upon proof of an incident, the carrier was called upon to show that it was operating its vehicle with all due, proper and reasonable care and skill - An incident from which negligence could be inferred had occurred and therefore, the Greyhound defendants bore the onus of showing they were "operating [their] vehicle in a prudent and safe manner" - Accordingly, the court would consider the higher duty of care owed by a common carrier when assessing liability - See paragraphs 237 to 245.

Carriers - Topic 3068

Liability to passengers - Standard of care - Of driver of bus - [See Carriers - Topic 3064 and third Torts - Topic 380 ].

Evidence - Topic 2401

Special modes of proof - Presumptions - Specific presumptions - Inference from failure to call or adduce available evidence - The plaintiffs sued the defendant drivers (Arsenault, Bolton and Scaplen) for damages for injuries suffered as a result of two collisions between two tractor-trailer units (the Trimac Unit and the TCM Unit) and a Greyhound passenger bus - Two individuals who were retained as experts by two separate parties in the action were not called to testify at trial - Parties opposite sought to have an adverse inference drawn with respect to the failure of these experts to testify - The Alberta Court of Queen's Bench declined to make an adverse finding - Serving an expert report on an opposite party under Rule 218.1 of the Alberta Rules of Court did not require that the expert providing the report be called at trial - The court had the discretion to draw an adverse inference from a witness's failure to testify at trial, but such an inference required some grounding in fact and applied where a prima facie case was made out - Serving a party with notice under the Rules of Court of the intention to call an expert witness did not give rise to a prima facie case - Considerations in exercising the discretion to draw an adverse inference included the existence of a legitimate explanation for the failure to call the witness, the materiality and exclusivity of the evidence that would be provided by the witness, and whether the witness was within the exclusive control of the party - See paragraphs 213 to 221.

Torts - Topic 277

Negligence - Breach of statute - Effect of breach of statute - The plaintiffs sued the defendant drivers (Arsenault, Bolton and Scaplen) for damages for injuries suffered as a result of two collisions between two tractor-trailer units (the Trimac Unit and the TCM Unit) and a Greyhound passenger bus - The plaintiffs asserted that the actions of the defendant drivers had to be considered having regard to certain provisions of the Traffic Safety Act and the Use of Highway and Rules of the Road Regulation - The Alberta Court of Queen's Bench held that "a breach of a statute is not determinative of whether a party has failed to meet the applicable standard of care so as to give rise to civil liability. A court may make a finding that a party did not meet the standard of care even in the absence of a statutory breach. However, the statutory formulation of a duty of care may provide a specific and useful standard of reasonable conduct" - See paragraphs 223 to 229.

Torts - Topic 378

Negligence - Motor vehicle - Standard of care of driver - Emergencies - The plaintiffs sued the defendant drivers (Arsenault, Bolton and Scaplen) for damages for injuries suffered as a result of two collisions between two tractor-trailer units (the Trimac Unit and the TCM Unit) and a Greyhound passenger bus - Arsenault was driving the Trimac Unit on the westbound lane on Highway 43 when he encountered thick fog - He slowed down and was moving forward very slowly when the rear of the Trimac Unit was struck by the TCM Unit, driven by Bolton (first impact) - The Trimac Unit and the TCM Unit were stationary when a passenger bus, driven by Scaplen, collided with the rear of the TCM Unit very shortly thereafter (the second impact) - The Greyhound defendants alleged that the actions of Arsenault and Bolton resulted in Scaplen facing an emergent situation to which Scaplen was forced to react - The Alberta Court of Queen's Bench stated that "in order for Greyhound to be successful in this argument, it must show that Scaplen was faced with a sudden emergency for which he was not responsible and that there were no other possible steps which Scaplen could have taken under the circumstances which occurred at the time of the Accident. If either one of these conditions is not met by Scaplen, then the so-called defence of 'emergent situation' will not be applicable to Scaplen and Greyhound" - See paragraphs 246 to 253.

Torts - Topic 379

Negligence - Motor vehicle - Standard of care of driver - Imminent danger, "agony of the moment" or "agony of collision" - [See Torts - Topic 378 ].

Torts - Topic 380

Negligence - Motor vehicle - Standard of care of driver - Dangerous highways or adverse driving conditions - The plaintiffs sued the defendant drivers (Arsenault, Bolton and Scaplen) for damages for injuries suffered as a result of two collisions between two tractor-trailer units (the Trimac Unit and the TCM Unit) and a Greyhound passenger bus - Arsenault was driving the Trimac Unit on the westbound lane on Highway 43 when he encountered thick fog - He slowed down and was moving forward very slowly when the rear of the Trimac Unit was struck by the TCM Unit, driven by Bolton (first impact) - The Trimac Unit and the TCM Unit were stationary when a passenger bus, driven by Scaplen, collided with the rear of the TCM Unit very shortly thereafter (the second impact) - The Alberta Court of Queen's Bench held that all of the defendants were at fault for the accident - Arsenault breached several of the standards for professional drivers - While Arsenault was travelling at a low rate of speed (between 8 and 12 km/h) at the time of the first impact, he was in fact over-driving his visibility - Arsenault had observed the dense fog bank ahead of him and yet he failed to either stop his vehicle prior to entering the dense fog or, alternatively, to slow down to an appropriate speed while travelling through the dense fog - As a result of the speed at which he entered the fog bank, he became disoriented - He was therefore unable to react - Further, Arsenault breached the standards of professional drivers in failing to take immediate steps to move to the right-hand lane upon regaining his bearings - Immediately upon getting his bearings, he should have taken steps to move back into the right-hand lane - Not only should Arsenault have moved into the right-hand lane, but based on all of the circumstances he should have taken immediate steps to attempt to park his unit on the right-hand shoulder - Arsenault also failed to adjust the illumination of the dash lights of the Trimac Unit so as to avoid a glare in the fog - This contributed to Arsenault becoming disoriented - Arsenault also breached certain of the Use of Highway and Rules of Road Regulations in relation to "speed of travel, travelling in the left-hand travel lane at a speed substantially less than the maximum speed, driving at a speed that blocked normal and reasonable movement of traffic on the highway, failing to travel in the right-hand travel lane when it was available to him and finally, occupying space in two travel lanes" - See paragraphs 322 to 330.

Torts - Topic 380

Negligence - Motor vehicle - Standard of care of driver - Dangerous highways or adverse driving conditions - The plaintiffs sued the defendant drivers (Arsenault, Bolton and Scaplen) for damages for injuries suffered as a result of two collisions between two tractor-trailer units (the Trimac Unit and the TCM Unit) and a Greyhound passenger bus - Arsenault was driving the Trimac Unit on the westbound lane on Highway 43 when he encountered thick fog - He slowed down and was moving forward very slowly when the rear of the Trimac Unit was struck by the TCM Unit, driven by Bolton (first impact) - The Trimac Unit and the TCM Unit were stationary when a passenger bus, driven by Scaplen, collided with the rear of the TCM Unit very shortly thereafter (the second impact) - The Alberta Court of Queen's Bench held that all of the defendants were at fault for the accident - Bolton breached the standards for professional drivers - Bolton over-drove his visibility - He had encountered intermittent fog patches on the highway prior to reaching the accident site - Notwithstanding his knowledge of the potential to encounter fog conditions, he operated the TCM Unit on cruise control - The TCM Unit was on cruise control as he entered the dense fog bank - That he was over-driving his visibility was obvious from the fact that he was unable to slow down to a speed that would allow him to react to the situation he encountered, namely the Trimac Unit in his path of travel - Bolton's speed upon entering the fog bank resulted in him becoming disoriented and being unable to maintain his bearings on the roadway - As a result, Bolton moved from the right travel lane partially into the left travel lane - Bolton also breached the Use of Highway and Rules of Road Regulations in relation to speed and occupying space in two travel lanes - It was not impractical for Bolton to travel in a single traffic lane due to road conditions - See paragraphs 331 to 334.

Torts - Topic 380

Negligence - Motor vehicle - Standard of care of driver - Dangerous highways or adverse driving conditions - The plaintiffs sued the defendant drivers (Arsenault, Bolton and Scaplen) for damages for injuries suffered as a result of two collisions between two tractor-trailer units (the Trimac Unit and the TCM Unit) and a Greyhound passenger bus - Arsenault was driving the Trimac Unit on the westbound lane on Highway 43 when he encountered thick fog - He slowed down and was moving forward very slowly when the rear of the Trimac Unit was struck by the TCM Unit, driven by Bolton (first impact) - The Trimac Unit and the TCM Unit were stationary when a passenger bus, driven by Scaplen, collided with the rear of the TCM Unit very shortly thereafter (the second impact) - The Alberta Court of Queen's Bench held that all of the defendants were at fault for the accident - Scaplen breached the standards for professional drivers - Scaplen over-drove his visibility and failed to slow down to an appropriate speed to allow him to react to the situation he encountered - He had experienced light fog on an intermittent basis for some period of time before the accident - He estimated that he first noticed the thick fog bank approximately one minute prior to entering it - While he slowed down the speed of the bus prior to entering the fog bank, the fog bank was much more dense than he had anticipated and he failed to either stop completely before entering the fog bank or alternatively, failed to slow down to a speed at which he could react in time to the situation he encountered - As a result of the failure to slow down to an appropriate speed, he also became disoriented in the fog bank and was unable to stop the bus prior to the collision with the TCM Unit - Clearly, when he first observed the TCM Unit, the time within which to react to the situation was insufficient to avoid the second impact - Moreover, Scaplen also breached the Use of Highway and Rules of Road Regulations in relation to speed and occupying space in two travel lanes - It was not impractical for Scaplen to travel in a single traffic lane due to road conditions - See paragraphs 335 to 338.

Torts - Topic 380

Negligence - Motor vehicle - Standard of care of driver - Dangerous highways or adverse driving conditions - The plaintiffs sued the defendant drivers (Arsenault, Bolton and Scaplen) for damages for injuries suffered as a result of two collisions between two tractor-trailer units (the Trimac Unit and the TCM Unit) and a Greyhound passenger bus - Arsenault was driving the Trimac Unit on the westbound lane on Highway 43 when he encountered thick fog - He slowed down and was moving forward very slowly when the rear of the Trimac Unit was struck by the TCM Unit, driven by Bolton (first impact) - The Trimac Unit and the TCM Unit were stationary when a passenger bus, driven by Scaplen, collided with the rear of the TCM Unit very shortly thereafter (the second impact) - The Alberta Court of Queen's Bench held that all of the defendants were at fault for the accident - Firstly, all of the defendant drivers breached the standards for professional drivers and the Use of Highway and Rules of Road Regulations - The court also held that the breaches would also have been breaches of the standard of care expected of drivers of non-commercial vehicles - Secondly, the fog which was encountered at the time of the accident was far more dense than any of the defendant drivers had anticipated upon observing the fog bank across the roadway ahead of them - This did not relieve any of them from liability - There was an obligation on all three drivers to be in a position to react to whatever road conditions were encountered - All three of the defendant drivers breached this obligation - Thirdly, while the court was unable to make any findings as to whether any of the defendants' tail lights were operational, this issue did not impact the court's finding on liability - Finally, while the court had made certain findings as to the respective speeds of the Trimac Unit, the TCM Unit and the bus, the court's findings on liability were not dependent upon those findings as to specific speeds - See paragraphs 339 to 346.

Torts - Topic 396

Negligence - Motor vehicle - Standard of care of driver - Of bus driver - [See Carriers - Topic 3064 and third Torts - Topic 380 ].

Torts - Topic 396.1

Negligence - Motor vehicle - Standard of care of driver - Professional drivers - The Alberta Court of Queen's Bench held that "the following actions should be taken by a professional driver when encountering dense fog: (a) The driver should slow down to a speed that would allow him to react to situations encountered; (b) The driver should not over-drive his visibility or over-drive his headlights; that is, the driver should always be driving at a speed such that he can stop within the distance being illuminated by the headlights; (c) The driver should have all lights on, including the four-way flashers on his vehicle; (d) The driver's window should be rolled down; (e) The dash lights should be of the proper illumination to avoid glare; (f) The driver should try to maintain his position in the right travel lane. However, if he loses his bearings, he should slow his vehicle down until he is able to determine his position on the roadway and then he should move back into the right travel lane as quickly as possible; (g) The driver operating a heavy vehicle should change lanes gradually; and (h) The driver should be looking for a safe place to pull off the highway." - Further, a professional driver experiencing dense fog might very well conclude that the appropriate defence was to move as far to the right on the roadway as possible so as to remove his vehicle from the lanes of travel - While it was correct to say that it would be best to remove the vehicle totally from the roadway, if that was not an option then removing the vehicle as far as possible from the travel lanes would be the next viable option to a professional driver - While this could still create a dangerous situation, it was less dangerous than continuing to proceed in the travel lanes at a very slow speed - See paragraphs 267 to 276.

Torts - Topic 396.1

Negligence - Motor vehicle - Standard of care of driver - Professional drivers - [See first, second and third Torts - Topic 380 ].

Torts - Topic 463

Negligence - Motor vehicle - Speed - Where reduced speed required - Poor or obstructed visibility - [See all Torts - Topic 380 ].

Torts - Topic 550

Negligence - Motor vehicle - Evidence and burden of proof - Statutory burden on owner or operator - The plaintiffs sued the defendant drivers (Arsenault, Bolton and Scaplen) for damages for injuries suffered as a result of two collisions between two tractor-trailer units (the Trimac Unit and the TCM Unit) and a Greyhound passenger bus - Arsenault was driving the Trimac Unit on the westbound lane on Highway 43 when he encountered thick fog - He slowed down and was moving forward very slowly when the rear of the Trimac Unit was struck by the TCM Unit, driven by Bolton (first impact) - The Trimac Unit and the TCM Unit were stationary when a passenger bus, driven by Scaplen, collided with the rear of the TCM Unit very shortly thereafter (the second impact) - Section 186(1) of the Motor Vehicle Act provided that "if a person sustains loss or damage by reason of a motor vehicle in motion, the onus of proof in any civil proceeding that the loss or damage did not entirely or solely arise through the negligence or improper conduct of the owner or driver of the motor vehicle is on that motor vehicle" - The Alberta Court of Queen's Bench held that the onus under s. 186 applied when a motor vehicle collided with another vehicle which was stationary on a highway - If the court concluded that the TCM Unit and the Trimac Unit were both stationary at the time of the second impact, then there would be an onus on Scaplen to show that the loss or damage did not "entirely or solely" arise through his negligence or improper conduct - This presumption would be rebutted if there was a finding that the Trimac defendants or the TCM defendants were also at fault in causing the second impact - See paragraphs 230 to 236.

Torts - Topic 7382

Joint and concurrent tortfeasors - Contribution between tortfeasors - Apportionment of fault - General - The plaintiffs sued the defendant drivers (Arsenault, Bolton and Scaplen) for damages for injuries suffered as a result of two collisions between two tractor-trailer units (the Trimac Unit and the TCM Unit) and a Greyhound passenger bus - Given that there was no finding of contributory negligence on the part of the plaintiffs, the issue was whether the comparative blameworthiness approach, based on the provisions of the Contributory Negligence Act, was applicable to this situation - The Alberta Court of Queen's Bench held that the accident could in no way be said to be as a result of the fault of the plaintiffs - While the comparative blameworthiness approach clearly applied in apportioning fault between a plaintiff and a defendant, it was necessary to determine if the approach applied pursuant to the Tort-Feasors Act in apportioning liability as between joint tort-feasors - The court held that the language of the Contributory Negligence Act and the Tort-Feasors Act was sufficiently similar as to permit the application of the comparative blameworthiness approach in assessing liability pursuant to the Tort-Feasors Act - See paragraphs 254 to 266.

Torts - Topic 7382

Joint and concurrent tortfeasors - Contribution between tortfeasors - Apportionment of fault - General - The plaintiffs sued the defendant drivers (Arsenault, Bolton and Scaplen) for damages for injuries suffered as a result of two collisions between two tractor-trailer units (the Trimac Unit and the TCM Unit) and a Greyhound passenger bus - Arsenault was driving the Trimac Unit on the westbound lane on Highway 43 when he encountered thick fog - He slowed down and was moving forward very slowly when the rear of the Trimac Unit was struck by the TCM Unit, driven by Bolton (first impact) - The Trimac Unit and the TCM Unit were stationary when a passenger bus, driven by Scaplen, collided with the rear of the TCM Unit very shortly thereafter (the second impact) - The Alberta Court of Queen's Bench held that all of the defendants were at fault for the accident - Each of the defendant drivers committed multiple acts of fault or negligence - The most significant act by Arsenault was travelling very slowly in both travel lanes of the highway, while the most significant acts of Bolton and Scaplen were travelling at excessive rates of speed in the circumstances - It was clear that the chain of events in the accident started with the negligent acts of Arsenault - With respect to the nature of the conduct held to amount to fault, the breaches by both Bolton and Scaplen as a result of the speeds at which they were travelling were more egregious than the conduct of Arsenault - Arsenault was in the position he was in as a result of becoming disoriented in the fog and taking steps to attempt to get his bearings - Scaplen was not facing an emergent situation and did not take every possible step in the circumstances to avoid the collision - All of the defendant drivers committed multiple breaches of the Use of Highway and Rules of Road Regulations - The breaches by any one of the defendant drivers was not more significant than the breaches by the other defendant drivers - Accordingly, the apportionment of the fault was 30% to Arsenault and Trimac, 30% to Bolton and TCM and 40% to Scaplen and Greyhound - See paragraphs 347 to 357.

Cases Noticed:

Levesque v. Comeau, [1970] S.C.R. 1010; 5 N.B.R.(2d) 15, dist. [para. 215].

Lindahl Estate et al. v. Olsen et al. (2004), 360 A.R. 310; 48 Alta. L.R.(4th) 40; 2004 ABQB 639, folld. [para. 217].

Kusick v. Wildeboer et al. (1987), 81 A.R. 131 (Q.B.), refd to. [para. 219].

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 225].

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. 225].

Parrill v. Genge (1994), 125 Nfld. & P.E.I.R. 27; 389 A.P.R. 27; 8 M.V.R.(3d) 228; 1994 CarswellNfld 218 (Nfld. T.D.), affd. (1997), 148 Nfld. & P.E.I.R. 91; 464 A.P.R. 91; 35 M.V.R.(3d) 94; 1997 CarswellNfld 272 (Nfld. C.A.), refd to. [para. 226].

Cockerill et al. v. Willms Transport (1964) Ltd. et al. (2001), 284 A.R. 256; 2001 ABQB 136, refd to. [para. 227].

MacDonald v. McCorquodale and A.R.T. Sound Ltd. - see McDonald v. McCorquodale and I.T.S. Sound Ltd.

McDonald v. McCorquodale and I.T.S. Sound Ltd. (1984), 55 A.R. 180 (Q.B.), refd to. [para. 232].

Link v. Nett et al. (2000), 262 A.R. 44; 2000 ABQB 195, refd to. [para. 232].

Feener v. McKenzie (1971), 3 N.S.R.(2d) 829; 27 D.L.R.(3d) 283 (S.C.C.), refd to. [para. 234].

Day v. Toronto Transportation Commission, [1940] S.C.R. 433, refd to. [para. 240].

Kauffman v. Toronto Transit Commission, [1960] S.C.R. 251, refd to. [para. 241].

Ruch v. Colonial Coach Lines Ltd., [1969] S.C.R. 106, refd to. [para. 241].

Nice v. Calgary (City) et al. (2000), 266 A.R. 118; 228 W.A.C. 118; 83 Alta. L.R.(3d) 1; 2000 ABCA 221, leave to appeal refused (2001), 269 N.R. 394; 281 A.R. 399; 248 W.A.C. 399 (S.C.C.), refd to. [para. 242].

Gill Estate v. Canadian Pacific Ltd., [1973] S.C.R. 654, refd to. [para. 248].

Heller v. Martens et al. (2002), 303 A.R. 84; 273 W.A.C. 84; 4 Alta. L.R.(4th) 51; 2002 ABCA 122, refd to. [para. 258].

Aberdeen v. Langley (Township) et al., [2007] B.C.T.C. Uned. D83; 35 M.P.L.R.(4th) 233; 2007 BCSC 993, refd to. [para. 259].

P.S. v. Miller - see C.S. v. Miller et al.

C.S. v. Miller et al. (2004), 358 A.R. 196; 26 Alta. L.R.(4th) 345; 2004 ABQB 137, refd to. [para. 262].

Raywalt Construction Co. v. Bencic et al. (2005), 386 A.R. 230; 58 Alta. L.R.(4th) 266; 2005 ABQB 989, refd to. [para. 263].

Hub Excavating Ltd. v. Orca Estates Ltd. et al., [2008] B.C.T.C. Uned. A08; 67 C.L.R.(3d) 266; 2008 BCSC 21, refd to. [para. 264].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 269].

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. 321].

Windsor v. Canadian Pacific Railway Ltd. (2007), 417 A.R. 200; 410 W.A.C. 200; 2007 ABCA 294, refd to. [para. 321].

Statutes Noticed:

Traffic Safety Act, R.S.A. 2000, c. T-6, sect. 186 [para. 231].

Counsel:

R.G. McVey, Q.C., and M. Hussey, for the plaintiffs;

D.J. Boyer and A.F. Kostek, for Greyhound Canada Transportation Corp. and Robert B. Scaplen;

R.W. Wilson, Q.C., and D.M. Purvis, for TCM Transport Ltd. and Leonard Todd Bolton;

L. W. Olesen, Q.C., for Trimac Transportation Services Ltd. and Kevin J. Arsenault.

This action was heard between January 21 and February 11, 2008, by Nielsen, J., of the Alberta Court of Queen's Bench, Judicial District of Grande Prairie, who delivered the following reasons for judgment on November 25, 2008.