Thériault v. Aubin and Ouellette, (1990) 106 N.B.R.(2d) 95 (TD)

• Judge: Daigle, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: June 20, 1989
• Jurisdiction: New Brunswick
• Citations: (1990), 106 N.B.R.(2d) 95 (TD)

Thériault v. Aubin (1990), 106 N.B.R.(2d) 95 (TD);

    106 R.N.-B.(2e) 95; 265 A.P.R. 95

MLB headnote and full text

[French language version follows English language version]

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

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Gilles Thériault, litigation guardian of Stéphane Thériault, an infant, and Gilles Thériault (plaintiffs) v. Weeda C. Aubin and Bernard Ouellette (defendants), Zurich Insurance Co. (third party), Pat Durepos and Durepos Insurance Ltd./Durepos Assurance Ltée (third parties)

(E/C/116/87)

Indexed As: Thériault v. Aubin and Ouellette

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Edmundston

Daigle, J.

March 26, 1990.

Summary:

The plaintiff 10 year old boy rode his bicycle from his driveway directly across a highway into the path of a vehicle driven by its owner, but of which a used car dealer was the registered owner. The boy and his father brought an action in negligence for damages against the driver and the dealer. The driver added her insurer as third party; although her insurance policy had been cancelled for non-payment of the premiums. The dealer added his insurance agent, claiming that the agent negligently advised him on protecting himself where he remained as registered owner of the vehicle. The defendants also pleaded that the boy's father was contributorily negligent in failing to teach and supervise his son.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the action in part and held the driver negligent and 35% at fault and the boy negligent and 65% at fault. The dealer was held vicariously liable for the negligence of the driver. The father was held not to be contributorily negligent. The insurer and insurance agent were held not liable to the defendants.

Civil Rights - Topic 648

Liberty - Limitations on - Driver's licence - [See Civil Rights - Topic 657].

Civil Rights - Topic 657

Liberty - Limitations on - Insurance - Statutory conditions - Notice of policy cancellation - The Insurance Act, R.S.N.B. 1973, c. I-12, s. 230(1), statutory conditions 8 and 9, provided for the cancellation of an insurance policy by the insurer upon notice delivered by registered mail - An insured pleaded that the lack of a personal notice requirement violated s. 7 of the Charter, because the lack of insurance exposed an insured to a risk of personal civil liability (purely economic loss), prosecution under the Motor Vehicle Act and temporary suspension of driving privileges - The New Brunswick Court of Queen's Bench, Trial Division, held that s. 7 was not violated - See paragraphs 99 to 125.

Insurance - Topic 512

Agents - Liability of agent - Negligence - Liability to insured - The New Brunswick Court of Queen's Bench, Trial Division, held that an insurance agent properly advised a used car dealer on the procedure to be followed in protecting himself upon selling a car but remaining as registered owner - See paragraphs 127 to 138.

Insurance - Topic 1425

Insurance contract - Termination by insurer - Notice of cancellation - After the insured missed two premium installments the insurer sent her a notice of cancellation of her policy by registered mail in accordance with statutory condition 8 - The notice was received by her post office, but she claimed she did not receive it - The New Brunswick Court of Queen's Bench, Trial Division, held that the policy was validly cancelled and that the risk of nondelivery was on the insured once the notice reached her post office - See paragraphs 87 to 98.

Insurance - Topic 3137

Payment of insurance proceeds - Action - Relief from forfeiture - When available - After her insurer cancelled her automobile insurance policy for failure to make premium installments and she subsequently had an accident the insured claimed relief from forfeiture under s. 110 of the Insurance Act - The New Brunswick Court of Queen's Bench, Trial Division, held that s. 110 was unavailable to relief from forfeiture where the policy was not in effect when the loss occurred, but had been cancelled prior to the loss for nonpayment of premium - See paragraph 98.

Torts - Topic 20

Negligence - Standard of care - Child - Expected of - A 10 year old boy, who was of normal intelligence and an experienced bicyclist, rode his bicycle down his driveway at normal speed directly across a highway without looking for traffic into the path of a car - The New Brunswick Court of Queen's Bench, Trial Division, held the boy negligent and 65% at fault - See paragraphs 44 to 54.

Torts - Topic 46

Negligence - Standard of care - Particular relationships - Insurance agent - [See Insurance - Topic 512].

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - The New Brunswick Court of Queen's Bench, Trial Division, held that the relationship between a used car dealer and his insurance agent was sufficient to raise the duty of care on the part of the agent in advising the dealer on insurance needs - See paragraphs 127 to 128.

Torts - Topic 307

Negligence - Motor vehicle - Liability of owner for negligence of driver of owner's vehicle - Owner - Meaning of - A used car dealer sold a car, but remained as registered owner until the purchaser paid for the car - The dealer also was jointly liable on the purchaser's loan - The purchaser had possession and control of the car - The purchaser was subsequently found negligent in a motor vehicle accident - The New Brunswick Court of Queen's Bench, Trial Division, held the dealer to be an owner for the purpose of the owner's vicarious liability under s. 267(1) of the Motor Vehicle Act, applying the test that if a registered owner has any title, he is an owner - See paragraphs 59 to 86.

Torts - Topic 359

Negligence - Motor vehicle - Pedestrians and bicyclists - Children on highway and streets - A driver on a residential highway struck a boy, who rode on his bicycle out of his driveway directly into her path - The driver knew children were likely to be present, but was driving about 81 km/h in a 70 km/h zone - The New Brunswick Court of Queen's Bench, Trial Division, held the driver negligent and 35% at fault in driving too fast, when she knew children would likely be present - See paragraphs 39 to 41.

Torts - Topic 379

Negligence - Motor vehicle - Standard of care of driver - Imminent danger, agony of the moment or agony of collision - The New Brunswick Court of Queen's Bench, Trial Division, held that a driver could not be faulted for braking and swerving to the left in an attempt to avoid a bicyclist entering the highway from her right - See paragraphs 26 to 27.

Torts - Topic 451

Negligence - Motor vehicle - Speed - Excessive speed - [See Torts - Topic 359].

Torts - Topic 6618

Defences - Contributory negligence - Failure of parents to control children - [See Torts - Topic 8906].

Torts - Topic 8906

Duty of care - Particular relationships - Control of conduct of others - Care of children - A father taught his son to ride a bicycle, went riding with him often and instructed him to stay off the highway - He considered his son to be a good and safe bicyclist - The 10 year old boy rode across a highway without looking and was struck by a car - The New Brunswick Court of Queen's Bench, Trial Division, held that the father was not contributorily negligent - See paragraphs 55 to 58.

Cases Noticed:

Canadian Pacific Ltd. v. Gill, [1973] S.C.R. 654, consd. [para. 27].

Chaleur Silica Ltd. v. Sherrard (1984), 55 N.B.R.(2d) 47; 144 A.P.R. 47, consd. [para. 27].

Buck and Buck v. Conway (1974), 9 N.B.R.(2d) 124; 1 A.P.R. 124, appld. [para. 40].

McEllistrum v. Etches, [1956] S.C.R. 787, appld. [para. 44].

Lelarge v. Blakney (1978), 23 N.B.R.(2d) 669; 44 A.P.R. 669 (C.A.), appld. [paras. 56, 64, 71, 72, 75].

Teno v. Arnold, [1978] 2 S.C.R. 287; 19 N.R. 1; 83 D.L.R.(3d) 309; 3 C.C.L.T. 372, refd to. [para. 56].

Hayduk v. Pidoborozny, [1972] S.C.R. 879, appld. [paras. 71, 72, 75].

Honan v. Gerhold and Doman Estate, [1975] 2 S.C.R. 866; 3 N.R. 81, appld. [paras. 75, 78].

McEwan v. Iles (1981), 128 D.L.R.(3d) 447, appld. [para. 80].

Raita et al. v. Barbieri et al.(1981), 11 M.V.R. 158, refd to. [para. 80].

MacDonald et al. v. Burechailo and Autet, [1981] 6 W.W.R. 183, refd to. [para. 80].

Logan v. Giles et al. (1983), 47 N.B.R.(2d) 163; 124 A.P.R. 163, refd to. [para. 97].

Clapp v. Traveller's Indemnity Co., [1932] 1 D.L.R. 551, refd to. [para. 97].

London & Lancashire Fire Insurance Co. v. Veltre (1918), 42 D.L.R. 79, refd to. [para. 97].

Lumberman's Mutual Casualty Co. v. Stone, [1955] S.C.R. 627, refd to. [para. 97].

Atkinson v. State Farm Fire & Casualty Company, [1981-82] I.L.R. 1-1525, refd to. [para. 97].

Marcoux v. Halifax Fire Insurance Co., [1948] S.C.R. 278, refd to. [para. 98].

Whitbread v. Walley (1988), 51 D.L.R.(4th) 509 (B.C.C.A.), appld. [paras. 107, 110].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; [1986] 1 W.W.R. 481; 24 D.L.R.(4th) 536; 23 C.C.C.(3d) 289; 48 C.R.(3d) 289; 36 M.V.R. 240; 69 B.C.L.R. 145; 18 C.R.R. 30, appld. [para. 108].

Gershman Produce Co. Ltd. v. Motor Transport Board, [1986] 1 W.W.R. 303; 36 Man.R.(2d) 81; 22 D.L.R.(4th) 520, refd to. [para. 110].

Home Orderly Services Ltd. v. Manitoba (1987), 49 Man.R.(2d) 246; 43 D.L.R.(4th) 300, refd to. [para. 110].

R. v. Pinehouse Plaza Pharmacy Ltd., [1988] 3 W.W.R. 705; 67 Sask.R. 201, refd to. [para. 110].

Smith, Kline & French Laboratories v. Attorney General of Canada, [1986] 1 F.C. 274, refd to. [para. 110].

Wilson v. B.C. Medical Services Commission (1988), 53 D.L.R.(4th) 171, dist. [para. 111].

Re Mia and Medical Services Commission (1985), 17 D.L.R.(4th) 385, dist. [para. 111].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 114].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 52 C.R.(3d) 1; 26 C.C.C.(3d) 481; 29 D.L.R.(4th) 161; 2 C.R.R. 76, refd to. [para. 114].

R. v. Kinnear (1987), 87 N.B.R.(2d) 63; 221 A.P.R. 63, dist. [paras. 118, 119, 121, 122].

Manitoba Public Insurance Corp. v. Paul (1985), 34 Man.R.(2d) 272; 18 D.L.R.(4th) 762, dist. [paras. 118, 119, 122].

R. v. Robson (1985), 19 D.L.R.(4th) 112, not folld. [para. 119].

R. v. Rowland (1984), 56 A.R. 10; 13 C.C.C.(3d) 367, not folld. [paras. 119, 120].

R.V.P. Enterprises Ltd. v. British Columbia (Minister of Consumer and Corporate Affairs) (1988), 50 D.L.R.(4th) 394 (B.C.C.A.), consd. [para. 119].

R. v. Neale, [1986] 5 W.W.R. 577; 71 A.R. 337, appld. [para. 120].

Ginther v. Saskatchewan Government Insurance, [1988] 4 W.W.R. 738; 66 Sask.R. 109, refd to. [para. 120].

R. v. Hodge (1988), 95 N.B.R.(2d) 271; 241 A.P.R. 271, refd to. [para. 121].

R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; 21 N.R. 295; 40 C.C.C.(2d) 353; 85 D.L.R.(3d) 161; 3 C.R.(3d) 90, appld. [para. 123].

Centre Sportif de Caraquet Ltée v. Edmond E. Landry Assurance Ltd. (1977), 16 N.B.R.(2d) 489; 21 A.P.R. 489, appld. [para. 127].

Fine's Flowers Ltd. v. General Accident Co. of Canada (1977), 21 D.L.R.(3d) 139, appld. [para. 127].

Hedley Byrne and Co. Ltd. v. Heller and Partners Ltd., [1963] 2 All E.R. 575, appld. [paras. 127, 128, 138].

Mason (V.K.) Construction Ltd. v. Bank of Nova Scotia, [1985] 1 S.C.R. 271; 58 N.R. 195; 16 D.L.R.(4th) 598, refd to. [para. 127].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 102].

Insurance Act, R.S.N.B. 1973, c. I-12, sect. 102(3) [para. 93]; sect. 110 [para. 98]; sect. 230, stat. cond. 8(1) [para. 93]; sect. 230, stat. cond. 8(5) [para. 93]; sect. 230, stat, cond. 9 [para. 93]; sect. 230.1(1) [para. 93].

Motor Vehicle Act, R.S.N.B. 1973, c. M-17, sect. 1 "owner" [para. 63]; sect. 1 "registered owner" [para. 63]; sect. 140(2) [para. 41]; sect. 167 [para. 25]; sect. 267(1) [para. 60]; sect. 269 [para. 61].

Authors and Works Noticed:

Bogoroch, Richard M., Policy Breaches and Forfeiture of Coverage (1986), 6 Canadian Journal of Insurance Law 18 [para. 98].

Hill, David G., The "New" Relief from Forfeiture (Insurance Law) (Part 1) (1988), 6 Canadian Journal of Insurance Law 18 [para. 98].

Counsel:

John C. Friel, for the plaintiffs;

Roland V. Levesque, for Weeda C. Aubin;

Terrence J. Morrison and Michael Bowlin, for Bernard Ouellette;

William B. White, Q.C., and Cyril W. Johnston, for Zurich Insurance Co.;

Paulette C. Garnett, for Pat Durepos and Durepos Insurance Ltd.

This case was heard on April 25-28 and June 20, 1989, at Edmundston, New Brunswick, before Daigle, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Edmundston, who delivered the following judgment on March 26, 1990: