Royal & Sun Alliance v. Baltzer et al., 2009 NSCA 110

• Judge: Saunders, Oland and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: September 28, 2009
• Jurisdiction: Nova Scotia
• Citations: 2009 NSCA 110;(2009), 283 N.S.R.(2d) 344 (CA)

Royal & Sun v. Baltzer (2009), 283 N.S.R.(2d) 344 (CA);

    900 A.P.R. 344

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. NO.020

Royal & Sun Alliance (appellant) v. Robert Baltzer, Susan Baltzer, David Norman Clements, Amanda Jean Evans and David Wayne Clark (respondents)

(CA 299750; 2009 NSCA 110)

Indexed As: Royal & Sun Alliance v. Baltzer et al.

Nova Scotia Court of Appeal

Saunders, Oland and Fichaud, JJ.A.

November 4, 2009.

Summary:

Clements was driving a pickup truck owned by the Baltzers when he collided with a vehicle owned and operated by Clark. Two passengers in the Clark vehicle suffered injuries. They brought an action against the Baltzers, Clements and Royal & Sun Alliance (Royal), the Section "D" insurer of the Clark vehicle. The parties sought a preliminary determination of the issue of whether Clements was operating the truck with the consent, expressed or implied, of the Baltzers at the time of the accident.

The Nova Scotia Supreme Court, in a decision cited as 2008 NSSC 225, found that Clements was operating the truck with Mr. Baltzer's expressed and implied consent. The court then went on to find that the presumption of vicarious liability contained in s. 248(3) of the Motor Vehicle Act had been rebutted by the Baltzers and, accordingly, they were not liable for any damages arising from the collision. Rather, the court concluded that the uninsured motorist provisions in Clark's policy were engaged and Royal was responsible for responding to the claims by the Clark vehicle passengers. The claim against the Baltzers was dismissed. Royal appealed from the court's decision. The Baltzers filed a notice of contention which sought to affirm the decision.

The Nova Scotia Court of Appeal allowed the appeal. Since the only prerequisite for insurance coverage of an operator, namely consent of the owner, had been met, the judge's determination that the owner's insurer was not required to respond to the damage claim was an error of law. The court ordered that the Baltzers respond to the claim of the Clark passengers and that the claim against Royal be dismissed.

Insurance - Topic 4004

Automobile insurance - Liability policy - Risk - "Consent" by insured to use of insured automobile - Clements was driving a pickup truck owned by the Baltzers when he collided with a vehicle owned and operated by Clark - Two passengers in the Clark vehicle suffered injuries - They brought an action against the Baltzers, Clements and Royal & Sun Alliance (Royal), the Section "D" insurer of the Clark vehicle - The parties sought a preliminary determination of the issue of whether Clements was operating the truck with the consent, expressed or implied, of the Baltzers at the time of the accident - The judge found that Clements was operating the truck with Mr. Baltzer's expressed and implied consent - The judge then went on to find that the presumption of vicarious liability contained in s. 248(3) of the Motor Vehicle Act had been rebutted by the Baltzers and, accordingly, they were not liable for any damages arising from the collision - Rather, the judge concluded that the uninsured motorist provisions in Clark's policy were engaged and Royal was responsible for responding to the claims by the Clark vehicle passengers - The claim against the Baltzers was dismissed - Royal appealed - The Nova Scotia Court of Appeal allowed the appeal - The judge found that Clements was driving the truck with Mr. Baltzer's consent - Therefore, according to s. 114 of the Insurance Act, the Baltzers' insurance would be called upon to respond to any claims arising from Clements' operation of the truck - However, the judge went on to address s. 248 of the Motor Vehicle Act, which dealt with tortious liability for accidents - The issue of the liability of an owner for the negligent acts of an operator was not before the judge - Since the only prerequisite for insurance coverage of an operator, namely consent of the owner, had been met, the judge's determination that the owner's insurer was not required to respond to the damage claim was an error of law - The court ordered that the Baltzers respond to the claim of the Clark passengers and that the claim against Royal be dismissed.

Torts - Topic 300

Negligence - Motor vehicle - Liability of owner for negligence of driver of owner's vehicle - General - [See Insurance - Topic 4004 ].

Cases Noticed:

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. 12].

Co-Operative Fire and Casualty Co. v. Ritchie and Ritchie, [1983] 2 S.C.R. 36; 50 N.R. 106; 61 N.S.R.(2d) 437; 133 A.P.R. 437; 1983 CarswellNS 127, refd to. [para. 14].

Llewellyn Estate et al. v. Neault Estate (1990), 101 N.S.R.(2d) 387; 275 A.P.R. 387; 1990 CarswellNS 18 (C.A.), refd to. [para. 14].

Sun Alliance Insurance Co. v. Judgment Recovery (N.S.) Ltd. - see Llewellyn Estate et al. v. Neault Estate.

Co-operative Fire & Casualty Co. v. Judgment Recovery (N.S.) Ltd., 1977 CarswellNS 396 (C.A.), refd to. [para. 14].

Hirtle v. MacArthur et al. (1995), 144 N.S.R.(2d) 237; 416 A.P.R. 237 (C.A.), refd to. [para. 14].

Newell v. Towns et al. (2008), 266 N.S.R.(2d) 202; 851 A.P.R. 202; 2008 NSSC 174, refd to. [para. 14].

Statutes Noticed:

Insurance Act, R.S.N.S. 1989, c. 231, sect. 114(1) [para. 13].

Motor Vehicle Act, R.S.N.S. 1989, c. 293, sect. 248(3) [para. 10].

Counsel:

Jennifer Ross and Andrew Rankin, for the appellant;

Philip M. Chapman, for the respondents, Baltzer.

This appeal was heard on September 28, 2009, before Saunders, Oland and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Oland, J.A., on November 4, 2009.