Whelton v. Mercier et al., 2004 NBCA 83

• Judge: Drapeau, C.J.N.B., Deschênes and Richard, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: May 13, 2004
• Jurisdiction: New Brunswick
• Citations: 2004 NBCA 83;(2004), 277 N.B.R.(2d) 251 (CA)

Whelton v. Mercier (2004), 277 N.B.R.(2d) 251 (CA);

    277 R.N.-B.(2e) 251; 727 A.P.R. 251

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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Temp. Cite: [2004] N.B.R.(2d) TBEd. NO.009

John Whelton (plaintiff/appellant) v. Pierre Mercier, 2934752 Canada Inc., a corporation doing business in New Brunswick under the name and style of Highland Transport, and F.I.P.A. Transport Ltée (defendants/respondents) and Association des juristes d'expression française du Nouveau-Brunswick (intervenor) and The Attorney General for New Brunswick (intervenor)

(189/03/CA; 2004 NBCA 83)

Indexed As: Whelton v. Mercier et al.

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Deschênes and Richard, JJ.A.

May 13, 2004.

Summary:

Whelton was a passenger in a truck tractor operated by Mercier. He was injured when the truck tractor was involved in an accident. F.I.P.A. owned the truck tractor. Mercier was employed by F.I.P.A. The latter had leased the truck tractor to Highland Trans­port, a licenced trucking company. The truck tractor was registered under the names of F.I.P.A. and Highland Transport. Whelton sued Mercier, F.I.P.A. and Highland Trans­port. Highland Transport brought a motion for a summary judgment dismissing the action against it on the ground that it was not the "owner" of the truck tractor within the meaning of s. 267(1) of the Motor Vehi­cle Act.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision not reported in this series, allowed the motion. Whelton appealed.

The New Brunswick Court of Appeal allowed the appeal. The court stated, based on Rule 22.05(1), that Highland Transport was an "owner" within the meaning of s. 267(1) and that in view of s. 267(1) and the principles of vicarious liability developed by the common law, it was vicariously liable for any negligent driving of the truck tractor.

Motor Vehicles - Topic 54

General and definitions - Definitions - Owner - Defined - Whelton was a pas­senger in a truck tractor operated by Mer­cier - He was injured when the truck trac­tor was involved in an accident - F.I.P.A. owned the truck tractor - Mercier was employed by F.I.P.A. - The latter had leased the truck tractor to Highland Trans­port, a licenced trucking company - The truck tractor was registered under the names of F.I.P.A. and Highland Transport - Whelton sued Mercier, F.I.P.A. and Highland Transport - Was the latter an "owner" within the meaning of s. 267(1) of the Motor Vehicle Act (N.B.)? - The New Brunswick Court of Appeal answered yes - In addition, the facts of the case at bar triggered an exception to the common law rule stating that an employer-independent contractor relationship generally did not give rise to a vicarious liability claim - See paragraphs 30 to 46.

Practice - Topic 3070

Applications and motions - General - Language of proceeding - The New Bruns­wick Court of Appeal held that pursuant to Rule 39.05(1) and Form 37A, the clerk had to be notified by the respondent party if the latter wished to use an official lan­guage other than the one which the moving party had chosen - The notice to the clerk contemplated in Rule 39.05(1) was distinct from any language-related notice that might be contained in a Notice of Action or Statement of Claim - The respondent party's filing of affidavits written in a given official language did not constitute notice to the clerk within the meaning of Rule 39.05(1) - Having said this, the court added that the judge had erred in refusing a French hearing on the motion to the plaintiff/respondent who had chosen French in his pleadings and filed affidavits opposing the motion in French but had failed to give the notice contemplated in Rule 39.05(1) - The judge should have mentioned the possibility of an ad­journment and sought representations from the parties as to whether such a measure would be appropriate - See paragraphs 20 to 24.

Practice - Topic 5703

Judgments and orders - Summary judg­ments - Conditions precedent - The New Brunswick Court of Appeal held that the trial judge should have dismissed a motion for summary judgment because the moving party had failed to produce an Affidavit of Documents as requested by the respondent - This, on its own, was sufficient to decide the appeal in favour of the respondent - However, Rule 22 fostered "an even more useful approach toward a fair solution on the merits" - In fact, Rule 22.05(1) pro­vided expressly that, where summary judgment was refused, the court could specify the material facts which were not in dispute - This is what the court did with respect to the liability of a trucking com­pany sued by a passenger of a truck tractor injured in an accident - See paragraphs 26 to 29.

Torts - Topic 2555

Vicarious liability - For independent con­tractors - Highway and road activities - [See Motor Vehicles - Topic 54 ].

Cases Noticed:

Chiasson v. Chiasson (1999), 222 N.B.R.(2d) 233; 570 A.P.R. 233 (C.A.), consd. [para. 23].

Cannon v. Lange et al. (1998), 203 N.B.R.(2d) 121; 518 A.P.R. 121 (C.A.), consd. [para. 28].

Dionne v. Desjardins et al. (1999), 214 N.B.R.(2d) 380; 547 A.P.R. 380 (C.A.), refd to. [para. 30].

Cummings v. Budget Car Rentals Toronto Ltd. et al. (1996), 91 O.A.C. 174; 29 O.R.(3d) 1 (C.A.), refd to. [para. 30].

Lelarge, Cameron and Cameron v. Blak­ney, Blakney and Gajowiak (1978), 23 N.B.R.(2d) 669; 44 A.P.R. 669 (C.A.), refd to. [para. 32].

Hayduk v. Pidoborozny, [1972] S.C.R. 879, refd to. [para. 32].

Prowse et al. v. Sullivan et al. (1997), 28 O.T.C. 394; 32 O.R.(3d) 91 (Gen. Div.), refd to. [para. 32].

Gillard (David R.) Ltd. v. Cormier (2000), 230 N.B.R.(2d) 1; 593 A.P.R. 1 (C.A.), refd to. [para. 32].

Thériault v. Aubin and Ouellette (1991), 121 N.B.R. (2d) 235; 304 A.P.R. 235 (C.A.), dist. [para. 33].

McEwan v. Iles et al. (1981), 128 D.L.R.(3d) 447 (Ont. Co. Ct.), refd to. [para. 35].

Edler v. Boyes Transport Ltd. et al. (1974), 6 O.R.(2d) 72 (H.C.), refd to. [para. 36].

Livingstone (Dave) Trucking Ltd. v. Min­ister of National Revenue, [2004] T.C.J. No. 112 (T.C.C.), refd to. [para. 37].

Lister (F.G.) Transportation Inc. v. Mi­nistre du Revenu national, [1998] T.C.J. No. 558 (T.C.C.), refd to. [para. 37].

Merit Transport Inc. v. Minister of Nation­al Revenue, [2003] T.C.J. No. 383 (T.C.C.), refd to. [para. 37].

Rempel v. Minister of National Revenue, [2002] T.C.J. No. 211 (T.C.C.), refd to. [para. 37].

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. et al., [2001] 2 S.C.R. 983; 274 N.R. 366; 150 O.A.C. 12, refd to. [para. 39].

Integral Insurance Co. v. Fulbright (Law­rence) Trucking Inc. (1991), 930 F.2d 258 (2nd Cir.), consd. [para. 44].

Hartford Accident & Indemnity Co. v. American Red Ball Transit Co. (1997), 262 Kan. 570 (Sup. Ct.), consd. [para. 44].

Pierre v. Providence Washington Insurance Co. (2001), 286 A.D.2d 139 (N.Y. Sup. Ct. App. Div.), consd. [para. 44].

Perry v. Harco National Insurance Co. (1997), 129 F.3d 1072 (9th Cir.), consd. [para. 44].

Maryland Casualty Co. v. City Delivery Service Inc. (1993), 817 F. Supp. 525 (M.D. Pennsylvania), consd. [para. 44].

Consumers County Mutual Insurance Co. v. PW & Sons Trucking Inc. (2002), 306 F.3d 362 (5th Cir.), refd to. [para. 44].

Canal Insurance Co. v. First General Insur­ance Co. (1989), 889 F.2d 604 (5th Cir.), refd to. [para. 44].

Empire Fire & Marine Insurance v. Guar­anty National Insurance (1989), 868 F.2d 357 (10th Cir.), refd to. [para. 44].

Prestige Casualty Co. v. Michigan Mutual Insurance Co. (1996), 99 F.3d 1340 (6th Cir.), refd to. [para. 44].

Statutes Noticed:

Motor Vehicle Act, R.S.N.B. 1973, c. M-17, sect. 267(1) [para. 4, Appendix A].

Rules of Court (N.B.), rule 22.05(1) [para. 28, Appendix A]; rule 39.05 [para. 20].

Authors and Works Noticed:

Atiyah, P.S., Vicarious Liability in the Law of Torts (7th Ed. 1967), pp. 327 to 349 [para. 39].

Counsel:

Micheline Gleixner and Brigitte Sivret, for the appellant;

Monika L.M. Zauhar, Amanda J. Frenette and Glen S. Gallant, for the respondent Highland Transport;

Christian E. Michaud, for the intervenor l'Association des juristes d'expression française du Nouveau-Brunswick;

Gaétan Migneault, for the intervenor the Attorney General for New Brunswick.

This appeal was heard on May 13, 2004, by Drapeau, C.J.N.B., Deschênes and Rich­ard, JJ.A., of the New Brunswick Court of Appeal.

The decision of the Court of Appeal was delivered orally on May 13, 2004 and the following reasons were filed on October 28, 2004 by Drapeau, C.J.N.B.