IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101201

Docket: M50219

Registry:
Nanaimo

Between:

Diane Elizabeth
Brooks-Martin

Plaintiff

And

James Martin,
MacNutt Enterprises Ltd. and John Doe

Defendants

Before:
The Honourable Mr. Justice Halfyard

Reasons for Oral Ruling on No Evidence Motion

[1]          
On November 18, 2010, at the close of the plaintiff’s case,
counsel on behalf of the defendant MacNutt Enterprises Ltd. made a no evidence
motion on behalf of his client. After considerable argument, this application
was abandoned. But the application was renewed, after the defendant James
Martin elected to call evidence, did call evidence and closed his case. On
November 22, 2010, I gave a relatively brief oral ruling in which I
dismissed the no evidence motion, and said that I would file written reasons to
explain my decision, at a later date.

[2]          
Before proceeding further, I reproduce my oral ruling in full:

1.    The defendant
MacNutt Enterprises Ltd. has made a “no evidence” motion under Rule 12-5(4) and
(5). The plaintiff and the co-defendant James Martin have closed their cases.
MacNutt has not yet elected whether or not it will call evidence. The plaintiff
opposes the motion, but the defendant James Martin takes no position.

2.    There are two
issues. The first is whether the motion should even be entertained, having
regard to the fact that there are two defendants who have each pleaded that the
other’s negligence caused the motor vehicle accident in which the plaintiff was
injured. In their respective statements of defence, among other things, each
defendant seeks an apportionment of liability, based on the other’s negligence.

3.    If the motion
should be considered on its merits, the issue is whether there is some evidence
that is capable of proving each essential element of the cause of action in
negligence which is pleaded against MacNutt. Mr. Ragona submits that there
is no evidence which could support a finding that MacNutt failed “to clean up
gravel spilled onto the road by MacNutt trucks,” as alleged in paragraph 7(b)
of the statement of claim. Counsel argues that the evidence refers only to
sand, mud and dirt, and shows only that those materials were tracked out onto
the road by truck tires, but not that it was spilled out of trucks. It is
further contended that the evidence cannot support a finding that the debris
allegedly encountered by the plaintiff on her motorcycle got to that location
as a result of any act or omission of MacNutt.

4.    On the first
issue, my opinion is that the motion should be entertained, and decided on the
merits. If there is “no evidence” against MacNutt at the stage we have reached
in this trial, then I do not see how the co-defendant, James Martin, could be
prejudiced, by dismissing the action against MacNutt.

5.    As to the
merits, it is my opinion that some evidence has been presented which, if
believed, could support findings of all essential elements of the cause of
action in negligence which is pleaded against MacNutt, including the particular
of negligence in paragraph 7(b) of the statement of claim.

6.    The application
is dismissed.

7.    I will file
written reasons later to explain my decisions.

The procedural issue

[3]          
Counsel for the plaintiff objected to the court entertaining the no
evidence motion made on behalf of the defendant, MacNutt Enterprises Ltd.
(“MacNutt”). This objection was based on a series of cases decided in this
jurisdiction, beginning with Ayer Mountain Estates Ltd. v. McElhanney
Surveying & Engineering Ltd. (1978) 7 B.C.L.R. 310 (Legg J.). The
principle that has been established by these cases is that the court should not
entertain an application for non-suit by one of two or more defendants at the
close of the plaintiff’s case, where each defendant (or group of defendants)
alleges that the other defendant was responsible for the plaintiff’s loss, even
if the evidence as it stands does not amount to a prima facie case
against the applicant defendant. That principle was extended to some degree by Mr. Justice
Hinkson in Craigdarloch Holdings Ltd. v. Syscon Justice Systems Canada Ltd.
2010 BCSC 46. In that case, Hinkson J. held that this rule of procedure should
be applied even where the defendant who was not seeking the non-suit had not made
any claim for contribution against the defendant who was making the motion for
non-suit, if a danger exists that a non-suit could cause prejudice to the
plaintiff (paragraph 55).

[4]          
It was my opinion that the authorities just referred to did not apply to
the present case, because the no-evidence motion was renewed by MacNutt, after
the defendant James Martin had called evidence and closed his case. In the
present case, the negligence alleged by the defendant James Martin against
MacNutt is the same as the negligence pleaded against MacNutt by the plaintiff.
It follows that, if the combined evidence of the plaintiff and the defendant
James Martin was not capable of supporting the cause of action in negligence pleaded
against MacNutt, then there could be no legal prejudice against either the
plaintiff or the defendant James Martin by granting MacNutt’s motion for
non-suit. Therefore I concluded that the no-evidence motion should be heard and
decided on its merits.

The substantive issue

[5]          
The legal test that must be met by a defendant who makes a motion for
non-suit has been stated many different ways by many different courts. Based on
the authorities, I would state the rule in this way:  In order to succeed on a
motion for non-suit, a defendant must persuade the court that there is no
evidence which is capable of proving one of the essential elements of the cause
of action alleged against the defendant. The court must not weigh evidence or
attempt to make findings of fact or to assess credibility. If an inference
which is essential to the plaintiff’s case would be “mere speculation,” the
defendant’s “no evidence” motion should be granted. See Fenton v. Baldo 2001
BCCA 95 at paragraphs 25-26; Seiler v. Mutual Fire Insurance Co. 2003
BCCA 696 at paragraph 12; Craigdarloch Holdings Ltd. at paragraphs 14
and 30; and Tran v. Kim Le Holdings Ltd. 2010 BCCA 156 at paragraph 2.

The pleadings

[6]          
The plaintiff alleges that on June 25, 2005, she was riding her motorcycle
in a northerly direction on Interurban Road in Saanich, B.C., travelling behind
and to the right of a motorcycle operated by the defendant James Martin. It is
alleged, that as the two motorcycles approached the intersection of Alan Road,
the defendant James Martin swerved in front of the plaintiff, forcing her over
into a patch of gravel deposited on the road by a truck owned by the defendant
MacNutt (and operated by its employee), which caused the plaintiff to lose
control of her motorcycle (and to go down onto the roadway and to be injured).

[7]          
The plaintiff alleges that the defendant Martin was negligent in failing
to keep an adequate lookout, failing to keep his motorcycle under proper
control, failing to reduce the speed of, or stop his motorcycle reasonably or
in time to avoid the collision and driving his motorcycle without due care and
attention (including driving at a speed that was excessive relative to the
road, traffic, visibility or weather conditions).

[8]          
The plaintiff has alleged negligence by an unknown employee of MacNutt,
for which MacNutt is vicariously liable. It is conceded by the plaintiff that
the only particular of negligence that could survive a no evidence motion is
paragraph 7(b) of the statement of claim which alleges that the negligence of
these defendants consisted of “failing to clean up gravel spilled onto the road
by MacNutt trucks.”

[9]          
The defendant, James Martin, denies that he was negligent and alleges
that the accident was caused by the negligence of the plaintiff, in whole or in
part; in the alternative that the accident was caused by the negligence of
MacNutt and its employee as alleged in paragraph 7 of the statement of claim;
and in the final alternative that none of the alleged acts or omissions of the
defendant Martin was the proximate cause of the accident.

[10]       
In its statement of defence, MacNutt denies that it (or its unknown
employee) was negligent, and alleges that the negligence of the plaintiff was
the cause (in whole or in part) of the accident; in the alternative, that the
negligence of James Martin was the cause of the accident, in whole or in part;
and in the further alternative, that no act or omission of MacNutt was the
cause of the accident.

The evidence

[11]       
The plaintiff testified that she and her husband, James Martin, were
riding their motorcycles north on Interurban Road, in a staggered formation
with her husband in the lead (A) position a few feet from the centre line, and
with her following him by four to six motor-cycle lengths in a position (C) a
few feet inside the white fog line. The plaintiff testified that after they
came over the crest of a hill, about 100 yards from the intersection of Alan
Road at the foot of a downgrade ahead, she saw a pickup truck stopped in their
lane of travel, waiting to make a left turn onto Alan Road. She testified
further that her husband was travelling at about 50 kilometres per hour and
that she was travelling at about 45 kph when they crested the hill and she saw
the pickup truck. She said that her husband slowed down somewhat, and that she
did the same, as they travelled down the grade toward the pickup truck. The
plaintiff said that she intended to come to a stop, beside her husband, who she
expected to stop behind the pickup truck. She testified that, as they
approached the pickup truck, her husband’s motorcycle swerved over to the right,
directly in front of her, and that this caused her to steer her motorcycle to
the right to avoid hitting him. She said that she was braking at this time, and
that, when she moved to the right, she encountered debris on the road which
caused her rear wheel to skid, which in turn caused her to lose control of her motorcycle,
and to go down onto the road and be injured. The plaintiff described the debris
on the road as being sand, dirt and rock particles of up to one-half inch in size.
She said that her husband kept going forward and drove past the pickup truck on
its passenger side.

[12]       
The defendant, James Martin, testified similarly to the plaintiff. He
said, in substance, that he was slowing down and intending to stop behind the
stopped pickup truck but that his rear wheel skidded to his left on debris that
was on the roadway, which caused him to steer his motorcycle sharply to the
right to avoid going down. He said his motorcycle went over in front of his
wife’s motorcycle. He said that he regained control, and passed by the pickup
truck and stopped without incident. He said that, in the meantime, his wife had
gone down and had been injured. Mr. Martin described the debris as being
spread across both lanes of travel, but more on the southbound lane. He was not
sure what the debris consisted of, but said it looked like dirt and dust, and
could have contained particles of sand and fibres. He said that the debris was
more powdery or sand-like material, and not like road gravel.

[13]       
The ambulance driver and paramedic, Sarah Braithwaite, testified that
she saw some loose material on the road, including the north bound lane of
Interurban Road, in the vicinity of where the accident occurred, when she
attended on June 25, 2005.

[14]       
There was evidence that McNutt has, for many years, operated a business in
which they sell topsoil and bark mulch, in a large area at the west end of Alan
Road, some distance from its intersection with Interurban Road. There is
evidence to the effect that Alan Road has a surface of dirt and gravel, which
becomes muddy when it rains. There is evidence that large trucks owned by
MacNutt, and trucks owned by other persons (large and small) drive out of
MacNutt’s yard and along Alan Road and then, after stopping, they turn left or
right and drive out onto Interurban Road. The evidence indicates that, when Alan
Road is muddy, the tires of these vehicles pick up the mud and carry it out
onto Interurban Road, where it falls off the tires onto the road and the
shoulder of the road.

[15]       
Several witnesses called by the plaintiff testified to the effect that
there was often mud, dirt and sand on Interurban Road in the area of the
intersection of Alan Road. Numerous complaints about the condition of the road
in this area have been made by users of the road, to the District of Saanich
both before and after June 25, 2005. There is evidence that the
Saanich By-law Officer, Mr. Carrigan has on occasion asked MacNutt to
clean up Interurban Road at the intersection of Alan Road, and that MacNutt
complied with these requests. The plaintiff read in the following evidence
given on discovery by Mr. Kersch, the representative of MacNutt, as
follows:

260 Q  Isn’t it correct that it’s MacNutt’s
responsibility to keep the road works around its work yard clean?

 A   Yes.

[16]       
A statement made by John MacNutt on February 5, 2008, was
entered into evidence as part of the plaintiff’s case. Mr. MacNutt stated,
among other things, that on any day from Monday through Saturday, about 100
trucks go in and out of the MacNutt yard on Alan Road, most of them hauling
materials out of the MacNutt yard, and that 20 to 30 trips might be made each
day by trucks owned by MacNutt. He also stated:

Because of all the truck traffic
from Alan onto Interurban and because Alan Road is largely gravel, it is very
conceivable that the truck traffic could drag loose gravel off Alan onto Interurban
through their normal course of travel.

[17]       
The plaintiff presented expert evidence from a civil engineer, John
Lisman, which contained his opinion to the effect that any debris on the
surface of Interurban Road in the vicinity of the Alan Road intersection was
deposited there as a result of the soil processing operation of MacNutt
Enterprises Ltd.

[18]       
At page 6 of his report, Mr. Lisman stated in part:

. . . I am of the opinion that a
significant quantity of the loose material had come from trucks visiting and
using the MacNutt yard facilities on Alan Road. Some of the material had been
tracked from that yard onto Interurban Road by the wheels of the trucks, but
other material had either fallen from or been cleared off the MacNutt trucks.

[19]       
Finally, there was evidence to the effect that, for the past three years,
the operator of the street sweeping machine for the District of Saanich had
been cleaning Interurban Road in the area of the Alan Road intersection, at
least once in every two weeks, and sometimes more.

The argument – The first point

[20]       
The main point argued by counsel for MacNutt on the renewal of his no
evidence motion was that the evidence was not capable of proving the essential
facts alleged in paragraph 7(b) of the statement of claim. It was said that
there was no evidence that there was “gravel” on the surface of Interurban Road
at the time and place of the accident. Secondly, it was contended that if there
was loose material present on the roadway at that time and place, there was no
evidence that this material had been “spilled onto the road by MacNutt
trucks.”  Counsel referred me to Canadian Bar Association v. British
Columbia 2008 BCCA 92, at paragraphs 59 and 60. At paragraph 60, the Court
of Appeal emphasized the importance of pleadings, one of the main purposes
being to “give notice of the case required to be met.”

[21]       
Counsel for the plaintiff submitted that the material described by the
plaintiff and by the defendant, James Martin, as being present on the roadway
on June 25, 2005, fell within the dictionary definition of “gravel,”
namely:  “small stones and pebbles, or a mixture of these with sand.”  It was
further maintained that the falling of such material off of moving truck tires
was encompassed within the dictionary meaning of “spill,” namely:  “to scatter”
and “to cause to fall from a horse, vehicle, or the like.”

[22]       
In the alternative, counsel for the plaintiff submitted that an
amendment to the pleadings in paragraph 7(b) should be allowed, to change
“gravel” to “debris” or “particulate,” and to change “spilled” to “deposited.” 
Counsel cited RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc.
2008 SCC 54, at paragraph 9, and argued that, in any event, no prejudice to
MacNutt had been shown.

Conclusion

[23]       
I accept the plaintiff’s submission. In my opinion, the evidence presented
sufficiently conforms to the pleadings as they stand. If I was wrong in that
conclusion, then I would unhesitatingly allow an amendment in the terms
suggested by plaintiff’s counsel, having regard to the circumstances of this
case. But I do not think an amendment is necessary and it was not suggested by Mr. Ragona
that MacNutt had been prejudiced in its defence by the imprecise manner in
which the cause of action against MacNutt was pleaded.

The argument – The second point

[24]       
In his original motion for non-suit, Mr. Ragona raised the point
that there was no evidence which could support a finding that the material
allegedly scattered on Interurban Road and encountered by the plaintiff on her motorcycle,
was present due to any act or omission of MacNutt. However, the evidence
included testimony to the effect that vehicles travelling on Interurban Road
tended to carry or spread the loose material from the area of the intersection
of Alan road, to the south of that intersection, in both lanes of travel, which
was the general area where the accident occurred (in the north bound lane). There
are other possible sources of the material referred to in the evidence, but the
evidence must not be weighed in deciding this application.

[25]       
There was no evidence that any MacNutt trucks tracked such material onto
the roadway and into the northbound lane of Interurban road, in the approximate
area where the plaintiff lost control of her motorcycle. But there was evidence
given that could support the inference that the material tracked out of Alan
Road onto Interurban Road by truck tires (some of which trucks were owned by
MacNutt) would be scattered across Interurban Road into the northbound lane by
the actions of other motor vehicles travelling south past  the Alan Road
intersection.

Conclusion

[26]       
In my judgment, the evidence could support the inference sought by the
plaintiff, namely, that the material alleged to have been on the road in the
area where the plaintiff lost control of her motorcycle, originated from the
tires of MacNutt trucks driving out from Alan Road onto Interurban Road.

[27]       
A plaintiff who sues for damages for personal injury allegedly caused by
the defendant’s negligence, must prove:

a)    That the
defendant owed him or her a duty of care;

b)    That the
defendant did an act or failed to do an act, which act or omission fell below
the standard of care required of the defendant; and

c)    That the
defendant’s said act or omission caused an accident (which caused injury to the
plaintiff).

(See Linden & Feldthusen, Canadian Tort Law, 8^th
edition (2006), page 108)

[28]       
In my opinion, there is some evidence which, if believed, could support
findings of each and every essential element of the cause of action alleged
against MacNutt. To my mind, none of the disputed inferences required to
support the plaintiff’s case at this stage, would be “mere speculation.”

[29]       
It was for these reasons that I dismissed MacNutt’s motion for non-suit.

“D.A.
Halfyard, J.”
The Honourable Mr. Justice Halfyard