Young v. Ward et al.

• Jurisdiction: Nova Scotia
• Court: Court of Appeal of Nova Scotia (Canada)
• Judge: Bateman, Saunders and Oland, JJ.A.
• Citation: 2009 NSCA 47,(2009), 277 N.S.R.(2d) 49 (CA)
• Date: 13 May 2009

Young v. Ward (2009), 277 N.S.R.(2d) 49 (CA);

    882 A.P.R. 49

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. MY.021

Lindsay Alexandra Young, by her Litigation Guardian, Richard Young (appellant) v. Joseph E. Meery (respondent)

(CA 301038; 2009 NSCA 47)

Indexed As: Young v. Ward et al.

Nova Scotia Court of Appeal

Bateman, Saunders and Oland, JJ.A.

May 13, 2009.

Summary:

The plaintiff was a passenger in Ward's vehicle. The vehicle hit a patch of ice and spun out of control, crossing the centre line and striking Meery's oncoming vehicle. The injured plaintiff brought a negligence action for damages against Ward and Meery. Ward and Meery cross-claimed against each other. Meery applied for summary judgment dismissing the action against him.

The Nova Scotia Supreme Court, in a judgment reported [2008] N.S.R.(2d) Uned. 134, granted summary judgment dismissing the claim and the cross-claim. The plaintiff appealed.

The Nova Scotia Court of Appeal allowed the appeal.

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - The plaintiff was a passenger in Ward's vehicle - The vehicle hit a patch of ice and spun out of control, crossing the centre line and striking Meery's oncoming vehicle - The injured plaintiff brought a negligence action for damages against Ward and Meery - Ward and Meery cross-claimed against each other - The trial judge granted summary judgment dismissing the action and cross-claim against Meery - Meery established that there was no genuine issue for trial and the plaintiff failed to establish a real chance of success - The Nova Scotia Court of Appeal held that the judge erred in granting summary judgment, in that he "erred in law by missing, ignoring or misapprehending material evidence, and by drawing inferences and conclusions from the evidence which rightfully fall within the preserve of the trier of fact, at a trial" - There were serious, genuine material facts to be tried respecting whether Meery kept a proper look out and took proper evasive action - The court stated that "the judge dissected the evidence - especially that relied upon by the [plaintiff] - subjecting it to a rigorous analysis in order to assess its reliability, its value, its consistency both within itself, and in contrast to the weight the judge felt ought to be ascribed to other evidence. Such a comprehensive analysis of the whole of the evidence must always be the preserve of the trial judge (or jury) after every witness' account has been tested by the kind of vigorous questioning under oath one expects at a trial".

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Practice - Topic 5708 ].

Cases Noticed:

Canada (Attorney General) v. Foundation Co. of Canada Ltd. et al. (1990), 99 N.S.R.(2d) 327; 270 A.P.R. 327 (C.A.), refd to. [para. 11].

Frank v. Purdy Estate (1995), 142 N.S.R.(2d) 50; 407 A.P.R. 50 (C.A.), refd to. [para. 11].

Werry et al. v. van de Wiel (2005), 237 N.S.R.(2d) 321; 754 A.P.R. 321; 2005 NSCA 131, refd to. [para. 11].

MacNeil v. Bethune et al. (2006), 241 N.S.R.(2d) 1; 767 A.P.R. 1; 2006 NSCA 21, refd to. [para. 11].

Selig v. Cook's Oil Co. (2005), 230 N.S.R.(2d) 198; 729 A.P.R. 198; 2005 NSCA 36, refd to. [para. 17].

Huntley et al. v. Hogeterp et al. (2007), 256 N.S.R.(2d) 20; 818 A.P.R. 20; 2007 NSCA 75, refd to. [para. 17].

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1, refd to. [para. 21].

Oceanus Marine Inc. v. Saunders (1996), 153 N.S.R.(2d) 267; 450 A.P.R. 267 (C.A.), refd to. [para. 21].

Campbell v. Lienaux et al. (1998), 167 N.S.R.(2d) 196; 502 A.P.R. 196 (C.A.), refd to. [para. 21].

United Gulf Developments Ltd. et al. v. Iskandar et al. (2004), 222 N.S.R.(2d) 137; 701 A.P.R. 137; 2004 NSCA 35, refd to. [para. 21].

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. 35].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 35].

2703203 Manitoba Inc. v. Parks et al. (2007), 253 N.S.R.(2d) 85; 807 A.P.R. 85; 2007 NSCA 36, refd to. [para. 35].

R. v. Clark (D.M.), [2005] 1 S.C.R. 6; 329 N.R. 10; 208 B.C.A.C. 6; 344 W.A.C. 6, refd to. [para. 35].

Counsel:

Raymond Wagner and Michael Dull, for the appellant;

Darlene Willcott and Selina Bath, for the respondent.

This appeal was heard on April 7, 2009, at Halifax, N.S., before Bateman, Saunders and Oland, JJ.A., of the Nova Scotia Court of Appeal.

On May 13, 2009, Saunders, J.A., delivered the following judgment for the Court of Appeal.