IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140107

Docket: 41696

Registry:
Kamloops

Between:

Michael Tataryn

Plaintiff

And

Adrianna Lee
Browne and Mrs. Debra Lee Browne

Defendants

And

Guldawood
Holdings Inc., Sunshine Eggs Inc. and
Zaitamyn Poultry Inc.

Third
Parties

– and –

Docket: 39621

Registry:
Kamloops

Between:

David William
Aldridge

Plaintiff

And

Adrianna Lee
Browne and Mrs. Debra Lee Browne

Defendants

And

Guldawood
Holdings Inc., Sunshine Eggs Inc. and
Zaitamyn Poultry Inc.

Third
Parties

– and –

Docket:
42143

Registry:
Kamloops

Between:

Paul Anhorn

Plaintiff

And

Adrianna Lee
Browne and Mrs. Debra Lee Browne

Defendants

And

Guldawood
Holdings Inc., Sunshine Eggs Inc. and
Zaitamyn Poultry Inc.

Third
Parties

– and –

Docket: 42020

Registry:
Kamloops

Between:

Stanley Lorne
Bernacki

Plaintiff

And

Adrianna Lee
Browne and Mrs. Debra Lee Browne

Defendants

And

Guldawood
Holdings Inc., Sunshine Eggs Inc. and
Zaitamyn Poultry Inc.

Third
Parties

–
and –

Docket:
42141

Registry: Kamloops

Between:

John
Junior Charlie

Plaintiff

And

Adrianna Lee
Browne and Mrs. Debra Lee Browne

Defendants

And

Guldawood
Holdings Inc., Sunshine Eggs Inc. and
Zaitamyn Poultry Inc.

Third
Parties

– and –

Docket: 40771

Registry:
Kamloops

Between:

Mario Douglas
Ficarini

Plaintiff

And

Adrianna Lee
Browne and Mrs. Debra Lee Browne

Defendants

And

Guldawood
Holdings Inc., Sunshine Eggs Inc. and
Zaitamyn Poultry Inc.

Third
Parties

– and –

Docket: 40773

Registry:
Kamloops

Between:

William John
Grierson

Plaintiff

And

Adrianna Lee
Browne and Mrs. Debra Lee Browne

Defendants

And

Guldawood
Holdings Inc., Sunshine Eggs Inc. and
Zaitamyn Poultry Inc.

Third
Parties

– and –

Docket: 40314

Registry:
Kamloops

Between:

Christine
Leicester

Plaintiff

And

Adrianna Lee
Browne and Mrs. Debra Lee Browne

Defendants

And

Guldawood
Holdings Inc., Sunshine Eggs Inc. and
Zaitamyn Poultry Inc.

Third
Parties

– and –

Docket: 40775

Registry:
Kamloops

Between:

Robin Jesse Moore

Plaintiff

And

Adrianna Lee Browne
and Mrs. Debra Lee Browne

Defendants

And

Guldawood
Holdings Inc., Sunshine Eggs Inc. and
Zaitamyn Poultry Inc.

Third
Parties

– and –

Docket: 40769

Registry:
Kamloops

Between:

Adam Nicholas Moss

Plaintiff

And

Adrianna Lee
Browne and Mrs. Debra Lee Browne

Defendants

And

Guldawood
Holdings Inc., Sunshine Eggs Inc. and
Zaitamyn Poultry Inc.

Third
Parties

– and –

Docket: 40059

Registry:
Kamloops

Between:

Ernest Joseph
Proulx

Plaintiff

And

Adrianna Lee
Browne and Mrs. Debra Lee Browne

Defendants

And

Guldawood
Holdings Inc., Sunshine Eggs Inc. and
Zaitamyn Poultry Inc.

Third
Parties

– and –

Docket: 42140

Registry:
Kamloops

Between:

Burke Schulz

Plaintiff

And

Adrianna Lee
Browne and Mrs. Debra Lee Browne

Defendants

And

Guldawood
Holdings Inc., Sunshine Eggs Inc. and
Zaitamyn Poultry Inc.

Third
Parties

– and –

Docket: 42142

Registry:
Kamloops

Between:

Bradley Allan Wood

Plaintiff

And

Adrianna Lee
Browne and Mrs. Debra Lee Browne

Defendants

And

Guldawood
Holdings Inc., Sunshine Eggs Inc. and
Zaitamyn Poultry Inc.

Third
Parties

Before:
The Honourable Madam Justice Hyslop

Reasons for Judgment

INTRODUCTION

[1]            
On November 17, 2006, at about 11:20 p.m., temporary farm workers were
being transported in a pickup truck from a Knutsford farm to the New Life
Mission (“NLM”) in downtown Kamloops. The pickup truck was driven the defendant,
Adrianna Lee Browne (“Annie”), and owned by her mother, Mrs. Debra Lee Browne (“Mrs.
Browne”). The truck and the workers did not reach Kamloops. Within a few
minutes of the truck leaving the farm, the truck left Long Lake Road and
tumbled down an embankment, rolling over several times and landing on its side (the
“accident”).

[2]            
There were fourteen workers in the truck. Each of the fourteen workers
commenced an action seeking damages for injuries that each of them suffered in
the accident. One of the injured worker’s action was dismissed for want of
prosecution.

[3]            
The thirteen plaintiffs each allege that Annie was negligent when she
drove carelessly and lost control of the pickup truck, causing it to roll down
the embankment. These workers allege that Mrs. Browne is vicariously liable for
Annie’s actions, pursuant to s. 86 of Motor Vehicle Act, R.S.B.C. 1996,
c. 318 [MVA].

[4]            
Mrs. Browne and Annie joined Guldawood Holdings Inc. (“Guldawood”),
Sunshine Eggs Inc. (“Sunshine”), and Zaitamyn Poultry Inc. (“Zaitamyn”) as
third parties. The defendants have discontinued their claims against Guldawood and
Zaitamyn. Ms. Leicester, one of the thirteen workers, has discontinued her
claim against all three third parties.

[5]            
Except for Mr. Tataryn and Mr. Schulz, Annie and Mrs. Browne allege that
the plaintiffs were contributorily negligent pursuant to ss. 1 and 4 of the Negligence
Act, R.S.B.C. 1996, c. 333. Annie and Mrs. Browne allege that if they are
responsible to any one of the thirteen plaintiffs for the injuries they
suffered, then the damages they suffered were caused or contributed to by
Sunshine pursuant to ss. 1 and 4 of the Negligence Act. Annie and Mrs.
Browne seek a declaration pursuant to s. 10(7) of the Workers Compensation
Act, R.S.B.C. 1996, c. 492 [WCA] that the damages or a portion of
the damages suffered by each plaintiff were the fault of Sunshine.

[6]            
Annie and Mrs. Browne also claim that s. 10(1) of the WCA bars
the plaintiffs’ claims against the defendants. Lastly, Annie and Mrs. Browne
claim that they were the agents and servants of Sunshine, making Sunshine
liable for the accident.

[7]            
It is admitted that:

·      
Mrs. Browne was the registered owner of a 2002 Ford F-350 pickup truck
bearing British Columbia license plate number 7878HN (the “truck”), which was
the only vehicle involved in the accident. The truck had a canopy that was
destroyed in the accident. It had been installed over its “short box”. The
truck had five seatbelts installed in the cab. Annie was aware that there were
five passengers in the truck, plus herself, when she left the egg farm;

·      
When Annie left the egg farm to travel to the NLM, she was aware
that there were occupants in the box of the truck;

·      
There were no seatbelts in the box;

·      
At the time of the accident, Annie was transporting six
passengers in the cab of the truck, including herself, and additional
passengers in the box of the truck enclosed by the canopy;

·      
The accident occurred at approximately 11:20 p.m. on November 17,
2006 on Long Lake Road, approximately one to two kilometres from Sunshine’s
farm (the “egg farm”), when Annie was returning to the NLM. The vehicle left
the travelled portion of the road and entered the ditch located to Annie’s
right, where it rolled several times;

·      
The accident occurred in the vicinity of civic address 3042 Long
Lake Road, at a location where Long Lake Road curves first in a
counter-clockwise direction and then in a clockwise direction;

·      
At the time of the accident, the tailgate and canopy doors were
closed;

·      
Annie, at the time of the accident, was residing with her mother,
Mrs. Browne, and Annie was driving the truck with Mrs. Browne’s consent;

·      
The egg farm is approximately 15 kilometres from the NLM;

·      
It takes approximately 25 to 30 minutes to drive from the NLM to
the egg farm;

·      
The temporary farm workers were hired by Sunshine, a commercial
enterprise, on November 17, 2006, to restock the chickens at its farm;

·      
The egg farm is a British Columbia corporation located at 100
Edith Lake Road;

·      
Alfred Goossen, at the time of the accident, was the manager of
the egg farm;

·      
The egg farm recruited the temporary workers by locating posters
at the NLM and Miracle Centre;

·      
Annie picked up the workers at the NLM and took them to the egg farm;

·      
Annie was born May 20, 1988. She was 18 years old at the time of
the accident;

·      
At the time of the accident, Annie had held a valid novice
British Columbia driver’s license in excess of a year;

·      
At the time of the accident, Annie was aware that she had to
attach or display her “N” on any motor vehicle that she drove, but it was not
attached or displayed on the truck;

·      
Annie was comfortable driving the truck;

·      
Annie had driven the Long Lake Road in excess of 50 times prior
to November 17, 2006;

·      
On the day of the accident, Annie had worked ten hours at Tim
Horton’s, starting at 5 a.m., and she did not take a nap before going to work
at the egg farm at 8 p.m.;

·      
Following the accident, Annie was issued a violation ticket for
driving contrary to her license’s restrictions and for driving without due care
and attention. She voluntarily paid the fines associated with this ticket;

·      
The plaintiff, Mr. Ficarini, was a passenger in the truck riding
in the rear seat of the cab;

·      
The plaintiffs, Mr. Proulx, Mr. Moss, Mr. Grierson, Mr. Moore,
and Mr. Bernacki, were riding in the box of the truck;

·      
The thirteen plaintiffs were injured.

[8]            
Throughout these reasons there is reference to the NLM, the Miracle
Centre, the egg farm or chicken farm, and Knutsford. The NLM is located in downtown
Kamloops. It provides help and accommodation to the homeless. The Miracle
Centre is located in North Kamloops and provides assistance to people who are
down and out. Knutsford is an unincorporated rural area south of Kamloops where
the chicken or egg farm is located.

[9]            
In order to attract workers to go to the egg farm, Cherry Ebl, an
employee of the egg farm, made up a poster and posted it at the NLM.

[10]        
I will review the testimony of the thirteen plaintiffs, the defendants,
the representatives of the third party, and the two other witnesses called by
the defendants. In reviewing the plaintiffs’ evidence as to their injuries, it is
only a summary. Should their injuries be assessed by the court for damages, I
am not limiting the description of their injuries to that stated at this trial.

[11]        
It has already been admitted that the plaintiffs were injured. I make no
findings of fact as to their specific injuries.

[12]        
The plaintiffs, unless specifically stated, did not know Annie, Mrs. Browne,
Alfred (Fred) Goossen, or Cherry Ebl before or at the time of the accident. They
did not know them by name. They often referred to Mr. Goossen as the “old man”,
“old fellow”, the “grandfather” or the “older gentleman”, and to Annie as the
“young girl” or “woman”. After the accident, the plaintiffs came to know these
people by their names. In reviewing the plaintiffs’ evidence, I will refer to
Annie, Fred Goossen and Cherry Ebl by their names, knowing that the plaintiffs
did not refer to them by their names as most of them did not know their names.

ISSUES

[13]        
The following issues must be determined:

1)    Was Annie
negligent, and, if so, did that negligence result in the motor vehicle accident
that occurred on November 17, 2008?

2)    Is Mrs. Browne
vicariously liable for the negligence of her daughter, Annie?

3)    In the
circumstances, were the plaintiffs contributorily negligent?

4)    Did the third
party, Sunshine, cause or contribute to the accident or injuries sustained by
the plaintiffs, requiring a declaration pursuant to s. 10(7) of the WCA?

5)    Are the
plaintiffs’ claims against the defendants barred by s. 10(1) of the WCA?

EVIDENCE

Adam Nicholas Moss

[14]        
Mr. Moss was born on June 1, 1980. He presently lives in Edmonton,
Alberta, with his common-law wife. They are expecting the birth of their first
child in July of 2013. Mr. Moss relocated in 2010 to Edmonton, where he has
been employed with different employers.

[15]        
Mr. Moss is originally from Ontario, where he completed grade 11. In
1997, he moved to Edmonton. Mr. Moss developed an addiction to illegal drugs,
in particular to crack cocaine. He has been clean and sober since December 2006.
In order to maintain his sobriety and dependent upon his work schedule, he
attends Narcotics Anonymous (“NA”) meetings two to four times a week. He has a
criminal record which involves convictions for theft-related offences.

[16]        
In 2006, Mr. Moss briefly lived in Kelowna. He then moved to Kamloops on
November 10, 2006. At that time he was attempting to turn his life around.

[17]        
On November 17, 2006, he had not used drugs or alcohol, although he had
used cocaine on the day before the accident. On the date of the accident, he
was living at the hostel next door to the NLM.

[18]        
He stated that he heard that there were workers needed for a chicken farm
minutes before the vehicles arrived at the NLM to pick up the workers. He was
standing outside the NLM when a truck with a canopy driven by a female arrived.
People were getting into the truck and it filled up. Mr. Moss paid little
attention to the truck. A minivan came along driven by an older man, who has
been identified in this trial as Fred Goossen. Mr. Moss stated that two
vehicles pulled up at the same time as he was waiting for a ride up to the
chicken farm, and that both the truck and the minivan were being loaded at the
same time in the presence of Annie and Mr. Goossen. Mr. Moss testified that he
jumped into the back seat of the minivan. He had a seatbelt. After the minivan
filled up with workers, they drove to the chicken farm. It took about 30
minutes.

[19]        
At the chicken farm, the group proceeded into the barn and Mr. Goossen
briefed the workers as to what they would be doing. He worked for three hours. During
that time, he testified that he was treated in a calm and respectful manner. He
last saw Mr. Goossen in the barn, 30 minutes before he left the egg farm.

[20]        
Mr. Moss thought that Mr. Goossen and Annie were arguing. He could not
hear them arguing, but he said he could see, even from a distance, when people
are not in the best mood. He was not 100% sure if Mr. Goossen was distraught.

[21]        
 He noticed when he came out of the barn that the minivan was full. The
truck was located about 50 yards from the barn. He observed the driver of the
truck at the passenger side and back end of the truck. Mr. Moss identified
Annie as the driver of the truck at this trial. Annie stated, “Get in the back
of the truck or you’re fucking walking”. When he was getting into the pickup,
he noticed Annie was unhappy. Mr. Moss described Annie’s body language as sharp
and aggravated. He did not know where Mr. Goossen was. The cab of the truck was
full, so he sat at the back of the box on the passenger side. He stated
that one more person got in the box of the truck after he did and before Annie
closed the tailgate and canopy of the truck. The truck left two minutes later.
He estimated that there were six to nine people in the box of the truck.

[22]        
Mr. Moss stated that the truck took off pretty fast. It was accelerating
and the ride was rough. He was rolling around in the back of the pickup truck,
and he recalls hearing a person say, “Whoa, is she going fast!” He stated that
the accident took place two to three minutes from leaving the farm.

[23]        
Just prior to the accident, he felt the truck fishtail and then he hit
his head against the canopy. He recalls waking up in the ambulance. He was
hospitalized for three days. He injured his neck and back and he had cuts to
his body.

[24]        
When Mr. Moss was asked why he did not protest riding in the back of the
pickup truck for the trip back to the NLM, he stated that he was a “bum” at the
time – a useless person for whom society did not have much use. He said,
“that’s just the way things are.”

[25]        
At the time of the accident, he had been on the streets for seven years.
In his situation, he would not even consider protesting a ride in a pickup
truck. He was poor and addicted to drugs. I conclude that Mr. Moss would not
have approached Mr. Goossen about riding in the back of the pickup truck. Mr.
Moss lacked confidence and felt shame, which prevented him from protesting
about riding in the back of the truck.

[26]        
Annie expressed contempt for these workers, describing them as homeless
bums. Her contempt was expressed in the manner in which she spoke to the
workers and how she treated them, and this is how Mr. Moss felt about himself.

Mario Davis Ficarini

[27]        
Mr. Ficarini is now age 43. He is single and he has a 17-year-old son.
He resides in Kamloops. At the time of trial and since July of 2012, he was
employed as a union organizer.

[28]        
Mr. Ficarini did not complete grade 11. Over the years, he was employed
as a blaster, driller, labourer in the oil sands, heavy equipment operator, and
a road builder.

[29]        
On November 17, 2006, he was living at the NLM, where he had lived since
August 2006. He was supported by social assistance.

[30]        
Mr. Ficarini had addictions to crack cocaine and crystal meth. As a
result of these addictions, he had psychological problems and was out of work. He
suffered from depression, auditory delusions, and suicidal and homicidal
ideations. In August 2005, he suffered a brain injury in a fight. On the day of
the accident, he had been clean and sober for 90 days and attending Alcoholics
Anonymous (“AA”) meetings. At the time of the trial, he had been clean and
sober since December 2011.

[31]        
Mr. Ficarini learned of the job at the chicken farm as a result of a
poster he saw posted in the day room of the NLM and by word of mouth. The job
was to pay $30.00, which he testified was a lot of money for a person on social
assistance. He was familiar with the area where the egg farm was located, as he
had been ice fishing in the area.

[32]        
He knew of Mr. Goossen as a pastor involved with the Christian ministry
at the Miracle Centre in Kamloops.

[33]        
Mr. Ficarini had been picked up at the NLM in a truck to go the farm. He
was seated in the cab of the truck on the trip up to the farm, although he did
not recall where he sat or who was driving. He did not know whether it was the
same truck that was in the accident when he left the farm to travel to the NLM.
Nor did he know whether there were other vehicles loading people at the NLM. Mr.
Ficarini testified that the trip up to the farm was uneventful and his
expectation was that he would return to the NLM the same way he travelled to
the farm.

[34]        
Upon his arrival at the farm, he went to the back of the barn, where he
worked with the chickens for about two and a half hours to three hours. He
testified that he had no interaction with Mr. Goossen during this time.

[35]        
When the work ended, he left the barn and went out to the parking lot. As
he was about to exit the barn, he heard a conversation between Mr. Goossen and
Annie. In that conversation, Mr. Ficarini stated that he overheard Mr. Goossen tell
Annie that she would have to take two trips to Kamloops. Annie responded that
she was going to take only one.

[36]        
Mr. Ficarini went straight to the truck. As Annie was getting into the
truck, she stated to those workers both inside and outside the truck that she
was making only “one fucking trip”. By this time, he was already seated in the
middle of the back seat of the cab of the truck with three other workers. He
did not see people load into the box of the truck.

[37]        
In his examination for discovery, Mr. Ficarini stated that Annie used
the words “one fucking trip” when having the conversation with her grandfather.
Contrary to his evidence-in-chief, however, he said that this conversation
happened when he was getting into the truck. Yet, in his evidence-in-chief, he
stated that he last saw Mr. Goossen in the barn while he was working.

[38]        
Mr. Ficarini stated that he did not raise the matter of not having a
seatbelt, as he just wanted to get home. He felt he had no other options
available to him other than to get into the cab without a seatbelt.

[39]        
Mr. Ficarini stated that Annie left the parking lot fast and that he was
scared and felt intimidated. He testified that the truck sped up even faster.
He recalls someone saying, “Whoa, slow down”. Within two to three minutes, the
accident occurred.

[40]        
Mr. Ficarini stated that as a corner came up on the road, the truck
started to skid and the truck’s back end went to the right. The driver attempted
to correct, but this caused the truck to shoot back and roll over, landing on
the driver’s side. He recalls striking his head and then there was a big blank
in his memory. He testified that he had no idea how he got out of the truck. He
recalls people moaning and crying. After seeing a porch light on a house, he
and another worker walked up the bank to the house, where they asked that
someone call the ambulance and fire department.

[41]        
Mr. Ficarini was delivered by ambulance to the hospital. He did not stay,
however, because other people were priorities. His injuries related to soft
tissue and included abrasions.

[42]        
Mr. Ficarini acknowledged that the purpose of seatbelts are for safety
and that they can lessen injuries. He was asked why he did not wear a seatbelt
while riding in the back seat of the cab to the NLM. He said that he could not
because there were four people in the back and they were all squished in.

[43]        
Mr. Ficarini knew Mr. Goossen was a lay pastor from the Miracle Centre.
He was asked that since he knew Mr. Goossen, why he did not approach Mr. Goossen
about riding without a seatbelt in the cab. Mr. Ficarini stated that he did not
protest riding without a seatbelt because there simply was no time to do so.

William John Grierson

[44]        
At the time of trial, Mr. Grierson was age 28 and living in Kamloops. He
receives a social assistance disability pension. At the time of the accident,
he was age 21.

[45]        
Mr. Grierson was raised in Edmonton by his mother, who was on social
assistance. He described his childhood marred by poverty and violence. Mr.
Grierson attained grade 10 and took upgrading at a college. He fell into drug
and alcohol addictions in 2005 and 2006. At the time of trial, he was 2084 days
clean and sober (since October 28, 2006). In order to maintain his sobriety, he
attends 12-step programs.

[46]        
Mr. Grierson, prior to the accident, had worked as a labourer, welder,
and restaurant employee. He is a self-taught tattoo artist, and his last job
was in a tattoo shop.

[47]        
On the day of the accident, Mr. Grierson was living in Kamloops. He had
come to Kamloops to see his father. He was staying at the hostel next to the
NLM.

[48]        
Mr. Grierson saw a poster seeking people to work at a chicken farm. He
had also heard about the work from Bert Schulz. He expected to earn between $30
and $50, which he intended use to buy telephone cards to phone his mother and
girlfriend.

[49]        
Mr. Grierson went to the NLM to get a ride to the chicken farm. He estimated
that there were about 12 to18 people waiting, and that he waited in the parking
lot for about 20 minutes. A smoky black Ford F-350 pickup truck with a long box
entered the NLM. A woman about his age with glasses and brown hair was driving.
He testified that he stood close to the truck so he would get a seat. He sat in
a seat behind the front passenger with his seatbelt buckled. There were two
people in the front of the cab. He could not hear the people who were in the
back of the truck. He testified that the trip to the farm was fine and that it
took under 30 minutes.

[50]        
When they arrived at the farm, they went around the side of a building
and an older gentleman spoke to them about what they were to do. They waited
for the truck carrying the chickens to arrive.

[51]        
He did not interact with the older gentleman while working because there
was no reason to do so.

[52]        
Mr. Grierson described the job as “cut and dried”. It ended between 10
p.m. and 10:30 p.m. While standing around, he heard an argument between the
older gentleman and a person named “Annie”. He could not hear what was said
other than Annie was complaining. Annie then came out of the barn. He said that
she was very angry and that she stated, “Get your asses into the truck or
you’re fucking walking.” He never saw the older gentleman after he finished the
work.

[53]        
When he left the barn, it was dark outside and he did not know where he
was. He stated that Annie was anxious to get going so he boarded the truck
after she got into the truck.

[54]        
The cab of the truck was full, so Mr. Grierson loaded himself in the box
on the wheel well of the driver’s side. He did not know who closed the tailgate
and the canopy. Mr. Grierson stated that Annie appeared to him to be a spoiled
brat who thought she was better than him and the others.

[55]        
The truck moved fast out of the parking area. Mr. Grierson stated that
people in the box were banging around. He stated that it was absurd how fast
the truck was travelling. Some of the people in the box were saying “slow down”.

[56]        
The accident happened in less than ten minutes within leaving the farm. He
stated that the truck skidded to the left. As it did, he held on to the person
next to him. The next thing he remembers is waking up in the mud and dirt. He
recalls the person next to him kicking him and screaming. He recalls Mr. Schulz
coming along.

[57]        
He stated that Annie worked alongside him. She was not dressed as if she
was going to work with the chickens, but rather as if she was going to work at
Tim Horton’s. He did not see the Tim Horton’s logo, but her attire had
something to do with coffee shops.

[58]        
He acknowledged that he entered the truck on his own free will and that
the truck was over-loaded. Mr. Grierson stated, however, that he felt he had no
other choice other than to get into the truck. Any choice had been taken away
from him. In this regard, Mr. Grierson was asked the following questions and
gave the following answers at his examination for discovery:

Q         Okay. Before you got in the truck did it occur
to you to go and say anything to anyone about how you felt about getting herded
back in a pickup truck in a flatbed?

A          I looked around and it was dark and I didn’t
know where I was and I thought that I hadn’t, I didn’t know the way back and I
was in a place I had never been before and then she seemed really anxious to go
so I boarded the truck.

Q         And you didn’t say anything to her?

A          There was no way that I could. She was
already in the truck.

Q         Sorry, I’m not clear on this. Did you get into
the truck after she got in?

A          Yes.

[59]        
Mr. Grierson said he saw another lady in the barn, but he did not know
her name and he did not see her when the truck was loaded. Mr. Grierson’s view
was that “the train was leaving – you have to get on board.”

[60]        
Mr. Grierson said he got into the truck and did what everybody else
would do in his circumstances. He said that he “had no choice.”

[61]        
I conclude that Annie made Mr. Grierson feel that she was better than
him. This was displayed when she yell at them, “Get your ass into the truck.”
He stated that she was angry and unapproachable. He said he had no option but
to get into the truck. Everyone was heading for the truck and he needed a ride.
When asked why he did not approach Mr. Goossen, he responded, “Mr. Goossen was
not there, he was in the barn.”

Ernest Joseph Proulx

[62]        
At the time of the trial, Mr. Proulx was age 42 and living in Kelowna. At
the time of the accident, he was age 36. He is single and without children. Since
September 2012, he had lived in a treatment residence for men. Despite
completing his treatment program, he has continued to reside there. He
regularly attends Coping Anonymous, NA, and AA. He has been clean of alcohol
and drugs since May 19, 2012.

[63]        
At the age of 13, Mr. Proulx ran away from an abusive home life. He had
a grade six education. He lived on the streets of Vancouver from ages 13 to16. He
started using drugs and alcohol at age 13. He has some health problems as a
result of his drug addiction. He also has a criminal record.

[64]        
He obtained his grade 12 diploma at the street school in Kamloops. Between
the ages of 20 to 36, Mr. Proulx held a variety of jobs, although none were
long term. He was last employed at $15.00 per hour in the spring of 2006 for an
asphalt paving company. The work was part-time and seasonal. November 17, 2006
was his last day of work. During the time that he was working, he was not
consuming alcohol or drugs. At the time of the accident, he was living in a
room near downtown Kamloops. Before the accident, he relied on unemployment and
social assistance.

[65]        
Mr. Proulx was familiar with the NLM, as he had taken counselling there
and had lived there in 2004 and 2005.

[66]        
He heard about the chicken farm work through a friend. He had no knowledge
as to what the work entailed. Christmas was coming up and he testified that he
could use the $30.00.

[67]        
He was told to be at the NLM. He went to the NLM somewhere between the
hours of 7 and 9 p.m. He had no idea where the farm was and had never been
there before. Other people waiting for rides. He testified that he hopped into
a vehicle. His recollection is that it was the only vehicle there. He has
little recollection of the ride up to the farm, except that it was dark and
cold when they arrived.

[68]        
Upon arrival, Mr. Proulx went directly to the barn where there were
other people. He worked for two or three hours carrying chickens and handing
them to others who put them in cages. He testified that he did not mind doing
the work and that he found the work easy. He briefly saw an “older gentlemen”
in about his fifties in the barn who was involved in the movement of the
chickens. Mr. Proulx had no interaction with this man.

[69]        
Mr. Proulx testified that the work came to an end between 11:30 p.m. and
midnight. He left the barn to go outside to have a cigarette. Just before he
left the barn, he observed the older gentleman, who was the driver of the
vehicle that he came up in, involved in a family “scrabble” with “the girl”,
later identified as Annie. All he heard from the conversation was that Annie
had to drive them home, she was tired and voices were raised. Annie then came
out of the barn, went to the truck and said, “Get in the fucking truck. I’m
going to make one trip back.”

[70]        
Ten to fifteen people were standing outside the barn. Mr. Proulx
testified that they piled into the back of the truck and Annie pulled up the
tailgate and pulled down the canopy door. Mr. Proulx described Annie’s mood as
angry and upset. At the examination for discovery, he gave the following
answers to the following questions:

Q         Okay. Could you see them while they were
arguing or could you just hear it?

A          Passing by I believe it was like an entrance
area or something and we all have to pass that area to come out and they were
bickering back and forth. I just went outside for a cigarette to see what
vehicle I’m going to squeeze into.

Q         Do you remember what the grandfather was
saying?

A          Not offhand, no.

Q         But you recall the gist of it he was saying
“you have to drive them”?

A          Yeah, basically
they needed her help regardless if she just worked at Timmy’s or not and she’s
tired. They needed her help and I guess she was being uncooperative.

[71]        
Mr. Proulx had no recollection whether the cab of the truck had two or
four doors. He thought that there were nine people in the box of the truck. He
last saw the older gentleman inside the barn; he was not outside when they loaded
up. He did not observe other vehicles loading up workers.

[72]        
He stated that he had no concern for his safety riding in the box of the
truck. He expected to get home safely.

[73]        
As the truck was about to leave, he recalls it backing up and them
leaving the farm. He said that the vehicle was travelling fast and that some of
the people in the box stated that she should slow down. He recalled the truck
sliding, his ears popping, and then the truck fishtailing and flipping. His
next recollection is being in and out consciousness, the paramedics, and being
in the hospital in Kamloops. He was eventually moved to the hospital in Kelowna.
He summarized his injuries as severed tendons in his right hand, injuries to
his fingers, a neck fracture, and bruises.

[74]        
He testified that he had no money for a taxi and there was no other way
home. He stated that it never crossed his mind to object to this mode of
transportation or to speak to Mr. Goossen.

[75]        
Mr. Proulx acknowledged at trial that riding in the box of a pickup
truck was unsafe.

[76]        
I conclude that Mr. Proulx knew that riding in the box of a pickup truck
could be dangerous, but that this was not a consideration for him that night.
This is not something he thought about on the night of the accident and before
he got into the pickup truck. Mr. Proulx stated that the trip going up was
safe, and he expected to return home safely. He had no money or other means for
alternate transportation. He felt he was “between a rock and a hard place”. I
conclude he had no other option. I conclude that he was tired and that Annie
told him she was making only one trip. It never crossed his mind to speak to
Mr. Goossen.

Robin Jesse Moore

[77]        
Since 2002 and at the time of the accident, Mr. Moore was a resident of
Merritt. He resided with his widowed mother. He has received disability
benefits for the last ten to twelve years as a result of a bi-polar condition he
was diagnosed with in the 1990s. He takes medication for the condition. At the
time of the accident, he was age 33; at the time of trial he was age 39. Prior
to living in Merritt, he lived in the Lower Mainland, where he had some
employment. He was last employed in Merritt for a couple of months.

[78]        
On the day of the accident, he was at the NLM intending on staying the
night. He had learned of the job that day. He heard that there were two part-time
shifts and that he could work for $10.00 per hour. He had worked at a chicken
farm previously. He testified that he needed the money so that he could buy gas
for his car to get back to Merritt.

[79]        
He testified that he waited with other people in the dark in front of
the NLM between 6 to 7 p.m. He described that a black three-quarter ton pickup,
with an extended cab and canopy, pulled up. It was driven by a blonde girl who
was younger than him. There were no other vehicles there. The cab was full. She
talked on the telephone as she was driving. He was one of the last two people
to get into the box of the pickup. He stated that there were eight or nine
people in the box with him. He sat on the driver’s side near the wheel well. There
was a rubber mat in the box of the pickup. He did not know where he was going
other than being told he was going to the Knutsford area. He had not been there
before.

[80]        
He stated that he felt fine in the box of the pickup and that it took
under ten minutes to get to the egg farm. He acknowledged in cross-examination
that the trip up to the farm took more than ten minutes. He went to work within
ten minutes of his arrival and worked about three to four hours that evening in
the barn. He found the work straightforward, as he had done this work
previously. Just before leaving the barn, Mr. Goossen told the workers to go
home and “I will see you tomorrow”.

[81]        
When Mr. Moore left the barn, Annie was standing by the truck on the
driver’s side. The truck was running. There were already five people in the
cab. She told him to get into the truck. He had no discussion with her. She was
impatient. He had been outside of the barn for about five minutes before
getting into the box of the truck for the trip home. He sat in the same place
as he sat on the trip up. There were other people in the box of the truck.

[82]        
Mr. Moore was uncertain whether he saw the old fellow outside when he
and the other workers got into the truck.

[83]        
When the truck left the farm, it drove quickly and was accelerating to a
high rate of speed. When it accelerated, it went sideways. He felt insecure. The
accident happened within five minutes of leaving the farm. He recalls the truck
skidding, then braking. The next thing he remembers is being outside the truck.
The paramedics arrived within 20 to 30 minutes. He was taken to hospital in
Kamloops, where he remained for four and a half days.

[84]        
He suffered three compression fractures to his vertebrae, two cracked
collar bones, and a cracked sternum.

[85]        
Mr. Moore acknowledged that when he got into the truck at the NLM, he
knew that he would be riding up to the farm without a seatbelt. He assumed that
Annie would be a good driver because the truck appeared expensive, although he acknowledged
that he did not know whether Annie was a good or a bad driver. When asked why
he got into the back of the pickup truck, he said he wanted the money.

[86]        
Mr. Moore said that he did not know where the farm was. It was cold and
dark, and he had to get back to the NLM to take his medication. He stated that
if he did not take his medication, it would cause him difficulties.

[87]        
As a witness, Mr. Moore, whether in cross-examination or in-chief, was
not spontaneous in his answers. I conclude that was in part due to his health.
I could not imagine Mr. Moore refusing the transportation or making it known
that the transportation was inappropriate.

Stanley Lorne Bernacki

[88]        
At the time of the accident, he was age 33. Mr. Bernacki, at the time of
trial, was age 39, and had been a resident of Kamloops since 1994. Also, at the
time he was working part time for a car dealership in Kamloops.

[89]        
In the 1990s, Mr. Bernacki was involved in a motor vehicle accident in
which he suffered an injury to his spine and brain. As a result, he receives
money each month from a structured settlement.

[90]        
Mr. Bernacki has a history of abuse of alcohol and drugs. He used crack
cocaine and speed. Since September 11, 2008 and at the time of trial, he had
been clean and sober.

[91]        
In Revelstoke, Mr. Bernacki left high school in grade 11. He completed
his grade 12 at a street school. Over the years, Mr. Bernacki held a number of
jobs.

[92]        
On November 17, 2006, Mr. Bernacki and Ms. Leicester (another plaintiff)
had been in a romantic relationship and had resided together at the Crossroads
Hotel. Mr. Bernacki learned of the opportunity to work at the egg farm from Ms.
Leicester. Although their relationship had ended that day, they went over to
the NLM so they could go up to the egg farm to earn $30.00. Mr. Bernacki was
not employed and needed the money.

[93]        
When Mr. Bernacki arrived at the NLM at 6:30 p.m., there were 12 to 15
people waiting in front of the NLM. He testified that a black crew cab with
four doors and a long box pulled up. It was driven by a girl with dark hair and
about age 19 or 20. He did not see anyone else in the vehicle. The girl got out
of the truck. He did not speak to her. He saw no other vehicles there. There
were people in the cab, so he, Ms. Leicester and others got into the box of the
truck. The tailgate and the canopy on the truck were closed, although he did
not know who closed them.

[94]        
He knew where Knutsford was, but he had not been to the farm. He had
never worked with chickens. Nothing out of the ordinary occurred on the trip
up. He was not concerned for his safety.

[95]        
When he arrived at the barn, it was dark, cool and crisp. He walked
around waiting for the chickens to arrive. They arrived in a five-ton cube van.
Mr. Bernacki and others received instructions about unloading the chickens from
the crates by the legs. He testified that the work went well and that he worked
for about three hours, ending at around 11:00 p.m.

[96]        
 He went inside the barn and saw the older gentleman with whom he had no
interaction during the evening. He walked down to a part of the barn where he
washed up. The grandfather came into the barn and told him that his ride had
arrived. The girl who drove him up walked past him, appearing irritated. She
said with a raised voice, “Get in the truck.”

[97]        
At this time, there were workers outside smoking. The same black truck
was out there. The canopy door was up and the tailgate down. Again, the cab was
full, so Mr. Bernacki got into the box of the truck and in the same position
that he came up in. The truck left five minutes later. Mr. Bernacki testified
that the older gentleman was not outside when the truck was loading.

[98]        
Initially, he had no concerns about his safety riding in the box of the pickup,
as the ride up was safe. However, the truck backed up and accelerated quickly
away from the farm. It continued to accelerate as it went down the road. Mr.
Bernacki was wondering why there was a big rush. Mr. Bernacki described the
driver’s manner of driving as erratic.

[99]        
Within five to ten minutes of leaving the farm the accident happened. The
back end of the truck kicked over to the driver’s side and then to the
passenger side. As a result of Annie’s driving, Ms. Leicester lunged or flew at
him as if to attack him and he grabbed her by the scruff of her coat. He then recalls
feeling pain in the left side of his ribs as he lay in a field, with the canopy
to his left, Ms. Leicester in front of him, and Ernie to his far right, crying.
He tried to get up twice and could not.

[100]     Mr. Bernacki
was taken away on a stretcher to Royal Inland Hospital, where he remained for
13 days. Mr. Bernacki suffered spinal fractures, collapsed and puncture lungs,
fractured ribs, and a detached retina.

[101]     Mr. Bernacki
acknowledged that the law in British Columbia requires passengers in vehicles
to wear seatbelts. He acknowledged that he knew there was a risk in getting
into the box of the pickup truck, but at the time he got into the box he gave
it no thought.

Paul Anhorn

[102]     Mr. Anhorn,
at the time of trial, was age 47. He reached grade 10 and he went back to
school in Vernon in 1996. Mr. Anhorn has a criminal record. Eighteen months
prior to the accident he had been in jail. About a month before the accident,
he was living at the NLM because his employment insurance had run out. He
struggled with drug addiction (although he had been clean of drugs for about
three years at the time of trial). On the day of the accident, however, he had
not been using drugs.

[103]     Mr. Anhorn
heard from Burke Schulz about the job at the chicken farm. He thought that the
work was outside of Merritt. He was not familiar with Knutsford, or Sunshine. Nor
did he know the relationship between Annie and Sunshine. Mr. Anhorn stated that
he had no money and he would do anything for $30.00.

[104]     He was
outside the NLM at 7:30 p.m., when a man unknown to him turned up driving a light
brown van. Mr. Anhorn got into the back seat. He had a seatbelt. At that time,
there were other workers there who were going painting. They were transported
by a blue and white crew cab truck with four doors and a canopy. The trip up to
the farm took between 30 and 40 minutes. Mr. Anhorn stated that he slept most
of the way up to the farm. He stated that after they arrived at the farm, they
waited outside for a truck to arrive with the chickens. They were divided into two
groups and they worked inside at the end of the barn.

[105]     The man
that drove him up in the van was in charge of the work. He did not speak to him
on the way to the farm. He recalls having a 30-minute break during the work,
and that a forklift got stuck in the mud. They worked until 11:30 p.m., when
there were no more chickens to move. He was told to go to the vehicles, although
he does not know by whom.

[106]     The only
vehicle outside was there was the pickup truck. He was told that the van was
full, and when the driver arrived, she said, “Get into the truck or walk”.

[107]     There were
14 to 15 workers waiting. Everyone rushed to the cab, filling it up quickly.
Mr. Anhorn got into the box of the truck. He warned people not to sit high and to
try to sit as low as possible.

[108]     He stated
that he was tired and that he wanted to get home. He was not comfortable with
riding in the box of the truck. When asked why he did not speak to Mr. Goossen,
he stated that he did not know where he was. Mr. Anhorn stated that, in reality,
it was “walking or riding”. As such, he was in a “sticky situation”.

John Gene Charlie or John Junior Charlie

[109]     At the
time of trial, Mr. Charlie was age 39 and a resident of Lytton. He was in
foster care until the age of six when he was legally adopted. In his grade 8
year, however, he re-entered the foster care system and was cared for in
different foster care homes until age 18. He eventually met his biological
mother.

[110]     Mr.
Charlie was familiar with the NLM, as he worked there from the summer of 2005 until
the middle of 2006 handing out prescribed medication. He left his employment
with the NLM and received medical unemployment insurance. On the date of the
accident, he was receiving social assistance.

[111]     Before the
accident, Mr. Charlie had been treated for cocaine addiction. He struggled with
drug addiction. At the time of the accident, he was not under the influence of
drugs or alcohol. He stated that he suffers from fetal alcohol syndrome.

[112]     Mr.
Charlie learned of the job at the chicken farm from Burke Schulz. He had no
money and wanted to do the job. He did not know how much he would be paid, but
he thought it would be for three or four hours of work.

[113]     At the
time of the accident, Mr. Charlie was living near the downtown area of Kamloops,
not far from the NLM. He was told that he would be picked up around 7 or 8 p.m.
at the NLM’s parking lot. As promised, while waiting at the NLM, a four-door
Ford truck arrived. There were 14 people in the NLM parking lot. Mr. Charlie
testified that there were a “bunch” of people in the cab of the truck. He
testified that the same lady who was driving the truck when it was in the
accident opened the tailgate and said, “Get in”. Mr. Charlie jumped into the
box of the truck, which was full of seven or eight people. There were no other
vehicles transporting the workers.

[114]     Mr.
Charlie states that there was discussion amongst the people located in the back
that it was illegal. He does not recall who said this.

[115]     He stated
that the drive up to the farm was fine. However, when confronted with a written
statement given to an insurance adjuster shortly after the accident, which
stated that the driver was speeding, Mr. Charlie conceded the statement was
accurate.

[116]     When they
arrived at the farm, a gentleman instructed them on what it was that they would
be doing. He stated that they were divided into a “couple” of groups. Mr.
Charlie’s job was to stuff chickens into crates. After some time, the gentleman
told them that the work was at an end and he and the workers headed out of the
barn.

[117]     The driver
of truck was standing by it. She announced that she was only going to take one trip,
so the workers should “get in the fucking truck” or they would be walking. Mr.
Charlie said she was in a bad mood and in a rush.

[118]      Mr.
Charlie said that he did not want to walk. Accordingly, he got into the cab of
the truck with three other people. He testified that there were only three
seats available. He was seated right behind the front seat passenger against
the door. He testified that he attempted to put on the seatbelt, but it was too
tight because there were too many people in the back seat.

[119]     Mr.
Charlie said that the truck sped off out of the driveway of the farm and
proceeded to go faster. Within minutes, four different people in the cab had
told the driver to slow down, including Mr. Schulz and himself. He did not know
the names of the other two who voiced their concern. Mr. Charlie stated that
the driver did not respond.

[120]     When the
truck came to corner, it started to fishtail. Mr. Charlie woke up and the truck
was on its side. Mr. Charlie’s injuries were bruised ribs and a hurt back. He
also suffers from headaches.

[121]     He
acknowledged in response to questions put to him that riding in a pickup truck
box is illegal and dangerous. Mr. Charlie testified that he was not happy about
being transported that way and he did not want to go back to Kamloops in the
back of the pickup truck.

David William Aldridge

[122]     Mr. Aldridge,
at the time of trial, was age 40, lived in Trail: was single and without
children. He is on a disability pension and lives alone. In 1990, he received a
high school diploma.

[123]     Mr.
Aldridge was in Kamloops two weeks before the accident. He had been out of the
detox centre where he was being treated for morphine addiction, and staying at
the NLM for two days before the accident.

[124]     He had
learned of the work at the chicken farm as a result of a sign posted at the NLM
and through “Burke” who told him the time when the ride was departing for the
chicken farm.

[125]     Mr. Aldridge
testified that an 18-year-old lady stated that anyone who wanted a ride should
get in. The cab of the truck was full; however, she opened the tailgate and
directed several people to get in. Mr. Aldridge obliged. He thought it might be
risky, particularly since he had no idea as to where he was going, but there
was no other vehicle there. It was getting dark as the truck drove away. Mr.
Aldridge said the driving was fine. She was “not a crazy driver,” and it took
approximately 15 to 20 minutes to reach the farm. He stated that there had been
a delay of 15 minutes before leaving the NLM, as the driver was on the telephone.

[126]     When they
arrived at the farm, they got out and stood by the barn. A gentleman showed up.
He told them what they would be doing and he placed them in two groups. Mr. Aldridge
stated he was stuffing chickens into crates. He expected to be paid for three
or four hours of work.

[127]     The older
gentleman told them that they were done at some point. The driver was standing
beside the truck outside the barn. She said, “Get in the fucking truck.” She
was in a bad mood and in a rush. Mr. Aldridge commented at trial that he had
not done anything to her.

[128]     Mr. Aldridge
stated that he rode in the same place going down as coming up, which was at the
tailgate, but he was not sitting against it. He stated that there were no workers
left waiting for a ride. He is not certain, but he thought that the people in
the box of the truck were the same people in the box as when coming up to the
farm.

[129]     The truck
fishtailed then came crashing on top of him. He remembers being outside and
bleeding. He said that he was in and out of blackness. He recalls a man
carrying him away, a doctor talking to him, and having problems with his
throat.

[130]     Mr. Aldridge
signed a statement prepared by his then counsel. The statement is more detailed
than his evidence at trial. The statement was signed on December 18, 2006. For
instance, he said that they waited for about one hour before they started work;
the trip took 30 minutes from the NLM to the farm; the work stopped at 11:30
p.m.; and the girl said, “Get in the truck I am leaving.” Mr. Aldridge does not
remember the day that he signed this statement, but he agreed that the
signature on the statement was his.

[131]      He
confirmed in cross-examination that it was risky riding in the box of a pickup
truck. He acknowledged that he could have walked away at the NLM. All he was
thinking about, however, was the work and the money he would earn.

[132]     Mr. Aldridge
was in hospital for a period of one and a half months. He fractured the
vertebrae in his neck and back, broke his jaw, and suffered other injuries.

 Burke Schulz

[133]     Mr. Schulz
was born on July 10, 1975. At the time of the trial, he was 38 years old and unemployed.
He has a common-law spouse and a daughter age 10. He came to Kamloops in 1999.
Although he only has a grade 11 education, he has held a variety of jobs. He
has had his troubles. He is a member of NA for a cocaine addiction, has attention
deficit hyperactivity disorder, and he suffered a head injury a year before the
accident when someone struck him on the head with an axe. He also has a
criminal record.

[134]     On the
date of the accident, he was living at the NLM. He saw on the posting board
there notice of jobs at the chicken farm. He wanted to work, as he needed the
money. He had not used drugs or alcohol that day.

[135]     There were
14 to 15 people waiting at the NLM to go to the chicken farm when a lady showed
up in a large F-350 truck. Six people, including the driver, got in the cab of
the truck. The others had to wait for another vehicle. He did not know the
driver. Mr. Schulz said that he was riding in the cab of the truck in the
passenger seat. He was wearing his seatbelt. He stated that there was no one in
the box of the truck.

[136]     Mr. Schulz
knew Fred Goossen, Cherry Ebl, and her husband. He had worked at the farm
previously.

[137]     Mr. Schulz
stated that the driver was “kinda in a rush to get to the farm,” although it
was snowing out. It took about 20 to 30 minutes to get to the farm. While
driving up to the farm, he had a discussion with the girl, who stated that she
did not want to be there. He and those riding in the cab got out of the truck
and waited for the other people to arrive in the van. There was then a meeting
with Mr. Goossen, Cherry Ebl, and the girl who was driving the truck as to how
to do the job.

[138]     He
considers himself friends with Mr. Goossen, as he attended the church at which Mr.
Goossen preached.

[139]     Mr. Schulz
said that he worked four to six hours. While he was uncertain about the exact
amount of time, it was a long time. Mr. Schulz was paid in cash and went
outside for his ride home. He went to the truck that drove him up. The driver
was the same person as before. She said, “If you want a ride, get in now or you
will walk home.” Mr. Schulz seated himself in the cab in the same position as
in the ride coming up and he fastened his seatbelt. In the back seat of the cab
were three or four people, the same number as coming up. He testified that
there were people in the box of the truck. He said that he did not know who was
in the box, as he was not paying attention.

[140]     They
travelled on a windy road. The truck was going pretty fast, though it was still
snowing. In fact, it was travelling faster going down than it was going up. Music
was on in the truck and it was loud. Eventually, the truck skidded and rolled a
couple of times. He ended up hanging upside down looking at the grass. He
kicked out the front windshield, released his seatbelt, and got out.

[141]     He had
injuries to his neck, back and right elbow.

Bradley Allan Wood

[142]     Mr. Wood,
at the time of trial, was age 39 and a resident of Kamloops. He and Ms.
Leicester, another plaintiff, have a child together.

[143]     Mr. Wood
came to Kamloops from Vancouver the day before the accident and was staying at
the NLM. He learned of the work at the chicken farm through the NLM. He said
that he was not picky about the work he accepted. He went to the NLM parking
lot to get a ride up to the chicken farm. Around 14 to 15 others were also
waiting for a ride to the farm. Eventually, a F-350 truck arrived. The cab
filled up, so Mr. Wood found a place to sit in the box. He had “no clue“ where
he was going.

[144]     He stated
that driver of the truck, who was the same person involved in the accident, was
speeding as she drove up to the farm. Mr. Wood estimated that Annie was driving
100 kilometres per hour up to the farm and about 140 kilometres per hour on the
way back. Mr. Wood testified that people in the box were pounding on the window
of the cab telling the driver to slow down, both on the way up and on the way
down to the farm. He also stated that people commented that she was speeding
and driving carelessly. In that regard, he described the return trip as the
“drive from hell”.

[145]     Upon arriving
at the farm, they waited in the barn for another group of workers. He stated
that he then worked for about three hours.

[146]     Mr. Wood
said that he overheard a conversation between Cherry Ebl and Annie that
occurred in the barn, during which Annie told Ms. Ebl that she needed to get
home as she had to work a shift at Tim Horton’s and she did not want to make
two trips. Mr. Wood also overheard that she had worked at Tim Horton’s and the
farm that day. Mr. Wood did not hear Ms. Ebl’s response.

[147]    
After finishing work, Mr. Wood came out of the barn and Annie was
standing by the truck on the driver’s side. She stated that she was doing one
trip only and that it was a long trip back. Mr. Wood adopted his evidence from
the examination for discovery on this point as follows:

Q         Did you say anything to her about please go
slower or slow down or anything like that?

A          All she told us
was to get in the truck. It was a long up and walk back. She got in and shut
her door and if we didn’t get in we were walking back and I was brand new to
Kamloops. I didn’t know nothing, it was dark, it was cold. I didn’t even have a
winter coat on.

[148]     Mr. Wood
got into the box of the truck in the same place that he drove up, which was on
the right at the tailgate. It was the only spot left. He has no recollection of
who shut the tailgate, either going to or from the farm.

[149]     Mr. Wood’s
evidence was that he had no alcohol or drug addictions. He had a history of
employment with his family’s company in Grande Prairie, Alberta. In cross-examination,
he said that he made a choice to get into the box of the pickup, but that he
would not drive people in the box of a pickup. He stated that he did not think
of speaking to Mr. Goossen about riding in the box of the truck. He just wanted
to get the job done and get home, and he had no money and no cell phone.

[150]      Mr. Wood
observed that the van was loaded before he came out of the barn. He also stated
that neither Ms. Ebl nor Mr. Goossen were outside of the barn in the area where
the truck was loaded.

[151]     Mr. Wood
suffered injuries to his right side, particularly to his ribs, and an injury to
his head, all of which resolved within three months.

Christine Leicester

[152]     Ms. Leicester
was age 26 at the time of the trial. At the time of the accident, she was age
20 and the mother of one child. She is now the mother of three children. She
has lived in Kamloops since she was five years old. She has a sister and a
brother. She left home when she was 14 years old due to difficulties in the
family. Between the ages of 14 and 19, she was in foster care or group homes. She
lived in about five or six foster homes.

[153]      At the
age of 16, Ms. Leicester started using illegal drugs recreationally and
eventually became addicted. She used speed, crack and heroin. At the time of
the accident, she had been clean and sober for two weeks and dependent on
social assistance. Ms. Leicester had lived with Mr. Bernacki, one of the other
plaintiffs. They broke off their relationship on the day of the accident just
before they travelled to the farm.

[154]     Ms. Leicester
had worked at the chicken farm on two or three previous occasions, about a year
before the accident.

[155]      Ms.
Leicester candidly admitted that she did not know what kind of vehicle it was
that she travelled in going to the chicken farm. Her recollection is that it
was a new vehicle because it smelled like a new vehicle. She thought that a
blonde lady by the name of Sandy had driven her up. She stated that a truck was
also there to pick up workers at the same time as the car, but they arrived at
the NLM at different times. A truck was there “for sure” and she was “pretty
sure “ that the car was there. She has no recollection of getting into the back
of the pickup truck on the way up to the farm.

[156]     She
testified that her previous trips to and from the chicken farm had been
uneventful. She admitted that she may have been mixing up the details of the
trip with the other trips she made.

[157]     She became
aware of this job as a result of a “flyer” at the NLM. She needed the cash,
even though she did not know how the job would pay.

[158]     Her
recollection was that the trip to the farm took about 45 minutes. It was very
dark and cold at the farm.

[159]     After
finishing the work, she observed Ms. Ebl (who Ms. Leicester thought was named
Sandy) and Annie in the barn having a conversation. Although, she could not
hear what they said, it was clear that Annie was upset.

[160]     Her
recollection is that the “grandfather” made no announcements. The truck was
parked outside, about eight to ten feet from the barn. She thought she also saw
in her peripheral vision another vehicle.

[161]     The driver
of the truck, a young girl, then said “Get in or you are walkin.” She got into
the truck and slammed the door of the cab. Ms. Leicester said there was no
profanity from the girl, but she did recall that the girl was “pissed off”.

[162]     Ms.
Leicester said that she did not think about protesting the manner of
transportation. The work was done and the truck was leaving, and there was no
one to protest to about being transported in the box in any event.

[163]      The cab
of the truck was full, so she got into the box of the truck. She recalls
someone opening and closing the back of the truck, but she did not know who
that was. In order to make room for everyone, Ms. Leicester sat on a box. She
could not see out of the canopy window. She stated that Mr. Bernacki was also
in the box of the truck.

[164]     Ms.
Leicester testified that she did not see the vehicle that she came up to the
farm in, but she was not looking for it.

[165]     Ms. Leicester
recalls that the truck fishtailed on the road, causing her to be thrown forward
and then back in the canopy. She tried to hold onto the canopy edge. The next
event that she remembers is lying on the ground and someone touching her head. She
had dried blood on her face. She recalls ambulance attendants being there.

[166]     She
testified that she fractured her hip and both pelvises, bruised her lungs,
injured her head, and chipped her teeth. She was hospitalized for a week.

Michael Tataryn

[167]     Mr.
Tataryn was age 48 at the time of trial. Since January 2013, he was a resident
of the Howard Johnson motel. Prior to that, he was homeless. He is an alcoholic
and he has been drinking since he was age nine. For the past twenty years, he
was also addicted to drugs, although he has ceased using drugs. He suffers from
hepatitis C as a result of intravenous drug use. He acknowledges that he also
has a poor memory as a result of his lifestyle. For most of his life, he has
relied upon social assistance. At the time of the accident, he was staying at
the hotel next to the NLM. He believed that Burke (Schulz) was in charge of the
farm labour.

[168]     That day,
he went to the NLM parking lot to go to a farm and earn $10.00 per hour. At the
parking lot, there was another vehicle – a caravan – taking workers to the farm.
He rode in the box of the truck. He stated that he complained to other workers
and Burke Schulz about having to ride in the box of the truck. When asked why
he did not complain to Mr. Goossen, he said that he wanted to keep the job and
that Mr. Schulz was his boss. When he arrived at the farm, the workers were
divided into groups.

[169]     The work
finished at midnight. On the way back to the NLM, Mr. Tataryn rode in the back
seat of the cab along with three other men. He described the pickup as a
half-ton truck. Mr. Tataryn testified that he was wearing his seatbelt and that
Mr. Schulz was riding in the front passenger seat.

[170]     Mr.
Tataryn stated that as the truck was about to leave the farm, it travelled
around a semi-truck and trailer and into a ditch. Once on the highway, it drove
through a curved section. Just before the truck went out of control, he looked
over Annie’s shoulder and saw that the speedometer registered 100 kilometres
per hour.

[171]     He said
that he was the last one out of the truck after the accident as those in the
back seat had landed on top of him. After he was out of the truck, he was
placed in the van, and then eventually moved to an ambulance and taken to the
hospital. The injuries he suffered were to his back, knees, shoulder and head,
as well as soft tissue injuries.

[172]     After the
accident, Mr. Tataryn gave an interview to the press. In that interview, he
claimed that the driver, Annie, was peer-pressured into driving in excess of
the speed limit. He claimed that the passengers encouraged her to drive faster.

[173]     I do not
accept Mr. Tataryn’s statements that Annie was peer-pressured into driving the
excess speed and that her passengers encouraged her to drive faster. The facts
that Mr. Tataryn gave to the press are not corroborated by any of the witnesses
who gave evidence at this trial. None of this evidence was put to the front
seat passengers.

Adrian Olsen

[174]     Adrian
Olsen was an emergency nurse working at Royal Inland Hospital on the night of
the accident. She examined Mr. Tataryn and she noticed swelling around the area
of his left shoulder. The inference is that Mr. Tataryn was wearing his
seatbelt. The defendants accept this as there is no other evidence to the
contrary.

Mrs. Debra Lee Browne

[175]     Mrs.
Browne is the mother of Annie, sister of Ms. Ebl, and daughter of Mr. Goossen. At
the time of the accident and at the time of trial, she was an employee of a
bank.

[176]     Despite her
employment at the bank, she had from time to time worked at the farm when the
old flock was removed and the new flock installed. Mrs. Browne had transported
workers to and from the farm. Others also transported workers, including her
father, her sister, and a woman named Louise.

[177]      Mrs.
Browne had owned another truck before owning the Ford F-350. She owned the Ford
F-350 as a result of her husband passing away in 2004. Mrs. Browne described
her truck as in “perfect working order,” and she believed that the seatbelts
were working. She based this belief on the fact that she regularly cleaned the
truck in the winter and spring seasons, and made the observation that the seatbelts
were operable when she fastened them during the cleaning process.

[178]     Mrs.
Browne stated that it was a common occurrence when transporting workers to
transport them in the box of a pickup truck between the NLM and the farm. She
said that she had done this on one occasion with a truck that she owned before
the Ford F-350, but she could not remember how many workers she had
transported.

[179]     Mrs.
Browne stated that at no time, at a meeting or on any other occasion, did her
father tell her that there would be no transporting of workers in the box of a pickup
truck.

[180]     Mrs.
Browne testified that on the evening of November 16, 2006, her sister, Ms. Ebl,
called and asked if she would be driving the workers. She said that she could
not. Her sister then asked if Annie would do it. Annie agreed. In doing so, she
asked her mother if she could use the truck to transport the workers. Mrs.
Browne agreed.

[181]    
Mrs. Browne stated that driving for her father was a favour and an
expectation. In her examination for discovery, which took place on May 30, 2007,
Mrs. Browne was asked the following question and she gave this response:

Q         With respect to the transporting of people
back and forth, which you have described as a favour, in your own mind was that
just a favour?

A          It’s something
that I’m not going to say it’s an expectation but in order for us to do the job
that we need to do to get the chickens in and out of the barn we need somebody
to be able to take people from the farm and back to where they live so that the
job can be completed. If we don’t have somebody who picks up these people and
takes them home we have nobody, we will be there for hours and hours and hours
doing this ourselves.

[182]    
After this question and answer, she stated that a favour and expectation
were the same. Mrs. Browne was also asked the following questions to which she
responded:

Q         Do you agree with that final conclusion that
the transporting of people was a favour and not work?

A          I would consider it a favour, yes, the reason
being is because we are not getting paid for it, but in order for us to be able
to complete the work as I said before somebody has to be able to do this. So
all in all even though we don’t get paid for it it’s a family thing what we do
together.

Q         There is some things you do for which you
don’t expect to be paid and other things you do for which you do expect to be
paid?

A          Correct.

Q         And the transporting of people was one of
those things that you did without expectation of any payment?

A          Correct.

[183]     Mrs.
Browne described her father as strong and manipulative. He made a person feel
guilty and got them to do what he wanted. That was when you were in his good
books.

[184]     Mrs.
Browne was aware that Annie held a novice license. She explained this detail
had “skipped her mind.” Thus, there was no discussion with Annie about her
driving status. She also stated that she had no discussion with Annie as to how
she would transport the workers.

[185]     Mrs.
Browne testified that Annie had never transported the workers before the
accident, but that she knew the type of workers they were. Mrs. Browne stated
that she was not concerned about Annie transporting these workers and that
Annie voiced no concerns.

[186]     In cross-examination,
it was put to Mrs. Browne that her father, Mr. Goossen, had never transported
workers in the cab and box of a truck. She responded: “I tried to tell you that
is a lie.”

Adrianna Lee Browne

[187]     At the
time of this trial, Annie was age 24 and living in Fort McMurray where she
works as a labourer and equipment operator. At the time of the accident, she
was age 18.

[188]     Annie’s
evidence is the same as her mother’s as to how it came about that she accepted
the request from her aunt to drive the workers to and from the farm. Annie,
like her mother, described driving the workers as a favour to the family.

[189]     Annie,
while going to high school, worked bussing tables at a restaurant and worked at
the farm. In grades 11 and 12, she worked because she owned a car and she
needed money to operate it. During her final year in high school, she worked
full time at Tim Horton’s. On the day of the accident, Annie got up at 4 a.m. to
work a shift at Tim Horton’s which started at 5 a.m. and ended at 3 p.m. At
6:45 p.m., she left for the NLM, arriving there at about 7 p.m.

[190]     Annie, at
the time of the accident, held a novice driver’s license. She was familiar with
the restrictions of her license when she accepted the request from her aunt to
transport the workers to and from the farm.

[191]     Annie
testified that she drove a motor vehicle every day. She testified that she was
familiar with Long Lake Road, as she had travelled on it since she was born. She
stated that she had driven Long Lake Road at least 50 times.

[192]     She
testified that she was comfortable driving her mother’s truck, but that she had
driven with only a couple of people in it before the accident. In that regard,
she confirmed that she had never driven the truck with four people in the back
seat and another passenger in the cab of the truck. Until the day of the
accident, Annie had never transported workers to the farm, although she was
aware that her mother had transported workers in the back of the truck.

[193]     Annie was
aware that her grandfather, Mr. Goossen, would be transporting workers to the farm
on the day of the accident.

[194]    
Annie stated that on the day of the accident, she decided that she did
not want to drive the workers. She telephoned her mother “a thousand times”
before the accident. In her evidence, she explained as follows:

Q         And why were you phoning your mom?

A          [NO ANSWER]

Q         After the accident or before the accident?

A          This is before.

Q         Okay. Why were you phoning your mom?

A          I called her because I didn’t want to drive
them anymore.

Q         After taking them up there?

A          No, this was even before I went down to the
Mission and picked them up.

Q         Why didn’t you want to drive?

A          Because I didn’t want to. They’re a bunch of
bums and strangers.

Q         Is that how you felt about them?

A          That is how I
feel about them.

[195]     Annie
testified that she knew that the law did not allow her to transport workers in
the box of a pickup truck and that it required all people travelling in a
vehicle to wear seatbelts.

[196]     On the day
of the accident, Annie drove the truck to the parking lot of the NLM. She estimated
that there were about 12 to15 workers waiting for a ride. She stated that she
stayed in the truck and did not have any conversation with any of the workers.
There was no discussion with anyone about seatbelts. She testified that Burke
Schulz opened and closed the tailgate of the truck and the canopy so the
workers could get into the box. She was at the NLM for about five minutes
before leaving with the workers in the truck for the farm.

[197]     She
testified that the trip to the farm was uneventful. However, she stated that on
her way to the farm she met her grandfather in his van on the road travelling
in the opposite direction. He was going down to pick up more people. She told
him that there were more people down there to be picked up.

[198]     Upon
reaching the farm, Annie then drove to her grandmother’s home, which was ten
minutes away. She did this because she did not know anyone and she felt
uncomfortable and “not very safe”. Her grandmother was not home, however, so
she proceeded to Ms. Ebl’s home, where she encountered her cousin, Lisa. She
returned to the farm and noticed that her cousin, David, was there. She went
and stood beside him. When her grandfather returned, he explained to the
workers what was to be done. Her best estimate was that there were about 30
workers there.

[199]     Annie’s
boyfriend was also at the farm that night. His vehicle was damaged at the farm
when a forklift hit it. Annie testified that this event caused her no concern.

[200]     Annie
worked alongside the workers. At about 11 p.m., the work was completed. At
about 11:10 p.m., she picked up the keys to the truck from her grandfather. She
and her grandfather had a conversation.

[201]    
In that conversation, Annie acknowledges that her grandfather told her
that she would to have to take two trips with the workers to the NLM. She
refused. She told him that she was only going to take one trip. She said that he
did not say anything about transporting people in the box of the truck or about
seatbelts. In Annie’s examination for discovery on August 1, 2012, she was
asked questions to which she responded as follows:

Q         Okay. So now it is time to go back, eleven or
11:15 p.m., true?

A          Yes.

Q         What conversations occur about transporting
people back?

A          My grandpa told me to take two trips.

Q         Your grandpa is Fred Goossen?

Q         Mr. Jensen asked you about Mr. Goossen’s
statement and words to the effect “take as many as you can, I will look after
the rest”. What I wrote down as your answer was, “I don’t recall him saying
that”.

A          No, I honestly — like he told me to take two
trips.

Q         So again are you saying that he never said
those words, “I can take the rest” or are you just saying I don’t recall if he
said it or not?

A          I don’t remember if he told me told me that
or not. I don’t.

Q         So my question is simply, were they urging
you? Were they in some way — urge means what it means. It’s not the word I’ve
chosen but it’s the word I’m dealing with.

A          I felt pressured.

Q         You’ve given that evidence concerning your
trip when you arrived at New Life Mission.

A          And on the way back.

Q         Why did you feel that pressure?

A          Because I had spoke to my auntie and I had
asked her “can you please take some of these people”? She said, “no I do not
want to get my truck dirty” or whatever.

Q         So you felt pressure but the things that had
been told to you by for example your grandpa, he in fact told you the opposite.
He told you to not take more people than there were seatbelts, correct?

A          He told me to take two trips.

Q         And you said “no”?

A          Correct.

Q         And you decided to do otherwise. Correct?

A          I guess so, yeah.

Q         Okay, I just want to be fair. Did you know
that there was people in the box of your truck?

A          I guess so, yeah.

Q         Okay. So with that knowledge you made the
decision to start driving back to town?

A          Yes.

Q         Nobody told you that you had to drive back to
town with people in the box of the truck?

A          No.

Q         Nobody said that?

A          [WITNESS SHAKES HEAD]

Q         You’re agreeing with me?

A          Yes, I’m agreeing with you.

Q         So you felt that pressure but the things that
had been told to you by for example your grandpa, he in fact told you the opposite.
He told you to not take more people than there were seatbelts, correct?

A          He told me to take two trips.

Q         And you said “no”?

A          Correct.

Q         He said to take only as many people as there
were seatbelts, correct?

A          Correct.

Q         And you decided to do otherwise. Correct?

A          Correct.

[202]     At trial, Annie
testified that she decided to take only one trip because she wanted to go home.

[203]     Annie
stated that she was not feeling good about her conversation with her
grandfather. She said that she was not grumpy, but she was annoyed. She
testified that she told the workers that she was leaving and that she was
taking only one trip, although she did not recall saying, “Get in the fucking
truck; I’m only taking one trip.” Annie stated that she would not have used
profanity in front of her grandfather. Nor did she remember telling them that
they would be walking if they did not get in the truck. She stated that she
would not have made them walk, as her grandfather was still there. Two of the
workers in the truck were going somewhere other than the NLM, so she told them
to get out as she was only going to one place. They exited the vehicle and two
other workers took their place.

[204]     Annie
stated that her aunt and grandfather were still at the farm when she left with
the workers. She stated that she went directly into the driver’s side of the
truck. It was Burke Schulz who closed the tailgate and canopy.

[205]     Annie
testified that before she left the farm, she had a conversation with Ms. Ebl
while Annie was in the driver’s seat of the truck. The truck was about 30 to 40
feet from the barn with all the workers either already in the truck or getting
into the truck. Her aunt’s truck was beside hers or about 10 feet away, and Ms.
Ebl was standing beside the truck. Annie testified that she asked Ms. Ebl to
take some of the workers, but her aunt refused because she did not want her
truck “full of shit.”

[206]    
Annie testified that she felt pressured into driving the workers. In her
examination-in-chief, she stated that the pressure initially came from Ms. Ebl
the night before, after her mother refused to drive. She said that she also
felt pressured by her grandfather because he needed the help. She said that she
felt pressure from the workers because they had been promised work. She stated
that when it came time to go back to the NLM, it was part of the
favour/agreement. In Annie’s May 30, 2007 examination for discovery, she
provided the following evidence:

Q         So there are various comments in here
including some attributed to you and I just want to get your direct evidence on
this, you agreed to transport these people as a favour?

A          Yes I did.

Q         Could you explain that, please, what did you
mean by that?

A          By like a favour?

Q         A favour to whom and why?

A          Well like it’s a family thing, I just want
like okay, family asks, I do. That’s it. Like it’s, I don’t know, it was just
there was nothing in return, there was nothing like oh well I’ll let you do
this if you help me. It was nothing. It was just a favour. It’s just like one
big family thing. So that’s it.

Q         You had never done that before?

A          A favour?

Q         No, I mean transporting people as a favour?

A          No.

Q         So why did you do it this time?

A          They needed help. They didn’t have enough
people.

Q         Do you know, when you say they do you mean Mr.
Goossen in particular?

A          Yeah, I’m talking
about my auntie and my grandpa.

[207]      Annie
stated that the accident happened within five minutes of leaving the farm. She
had driven only about two kilometres. Music was playing in the cab of the truck,
which Mr. Schulz initiated.

[208]     Annie gave
statements to the police and a representative of WorkSafe B.C. She told the
police that she was going “a little bit too fast.” The police recorded that Annie
attributed the accident to “probably speeding a bit and probably carelessness”.
Annie acknowledged making these statements and that they were accurate.

[209]     In her
examination for discovery of August 1, 2012, Annie provided the following
explanation of how the accident occurred:

Q         So we are doing our best verbally to
reconstruct this accident which I know happens in a couple of blinks of an eye.
So you recollect that at least one tire gets into the gravel portion of the
righthand side of the road as you’re going down?

A          Yes.

Q         So tell me what you recollect after that?

A          I remember the truck kind of catching and
like you know, fishtailing and I tried to correct it and I over corrected
because it went back on the road like it should have and then I don’t know, I
was in a mad panic I guess and I over corrected and ended up in the ditch.

Q         All right. It’s what we call a multiple
rollover. It rolls over more than once, true?

A          True. Now that could have been just because
like it felt like it rolled over that many times. I don’t know how many times
it rolled over.

Q         But would it be fair to say that you do know
that it rolled over more than once?

A          Yes.

Q         Can you remember how it landed?

A          It landed on the
driver’s side.

[210]     The
particular portion of the road where the accident happened was windy and the
posted speed limit was 50 kilometres per hour. Annie acknowledged that she was
driving over the speed limit. She guessed that she was driving 60 kilometres
per hour. At trial, she again conceded that she came into the curve too quickly,
tried to correct the truck after it started to fishtail, and went into the ditch.

[211]     Annie
stated that Burke Schulz then kicked out the windshield. After she got her foot
unstuck from the brake and undid her seatbelt, she left the truck and ran up
the bank to her grandfather. She whispered to him that she had crashed the
truck, as she did not want anyone to hear. She thought she had killed someone. She
got into her grandfather’s van. They went to his home and called 9-1-1. They
then drove back to the scene of the accident. She recalls hearing someone
shouting “Fuck you, you stupid fucking bitch”. She stated that she did not mean
to hurt anyone. Throughout this period of time, Annie was very emotional. All
the adult members of the family, including her mother, gathered at the scene of
the accident.

Alfred (Fred) Goossen

[212]     At the
time of this trial, Fred Goossen was age 73. At the time of the accident, he
was the manager of two chicken farms, one of which was owned and operated by
Sunshine, located in the Knutsford area. He started his employment with Sunshine
in 1999 or 2000. He retired from his employment with Sunshine at age 69.

[213]     Mr. Goossen’s
duties as a manager included picking eggs, cleaning the barn, and maintaining
appropriate feed and water for the birds. Once a year he was required to
arrange for the old hens to be culled and replaced. On November 1, 2006, the
old hens were culled. After that date, the barn was cleaned and readied to
receive the new hens. On November 17, 2006, workers were transported to the
Knutsford farm to place the new hens in cages. In order to complete the task,
Mr. Goossen hired 30 to 32 workers to help.

[214]     In order
to attract workers, the poster was placed in the NLM, the Miracle Centre and an
apartment building on Singh Road. The workers were to be paid $10.00 per hour. Those
working only on November 17 were to be paid immediately after completing their
work; those who intended to work the next day would be paid after they
completed their work the next day. In order to pay the workers, Mr. Goossen
obtained the cash from his bank account and Sunshine would reimburse him. When
members of the Goossen family worked, their pay was the same.

[215]     There were
no vehicles provided by Sunshine for use at the farm or for transporting
workers. Rather, members of Mr. Goossen’s family used their own vehicles for transporting
workers. No one was paid for the service or reimbursed for gas or any other
kind of expense.

[216]     On the
evening of the accident, Mr. Goossen was driving his wife’s Windstar van, which
he stated accommodated seven passengers, including the driver. Mr. Goossen
stated that there were no rules about transporting workers, but it was presumed
they would be transported safely. About a year before the accident, his
daughter, Mrs. Browne, had transported workers in the box of her pickup. The
principal of Sunshine, Mr. Dawood Alibhai, told Mr. Goossen that this practice
was not to happen again. Mr. Goossen, at a family dinner, informed family
members that this could not occur in the future. Present at the dinner were
himself, his wife, his daughter, Ms. Ebl, and her husband, and his other
daughter, Mrs. Browne. Mr. Goossen stated that Mr. Alibhai may have learned
that Mrs. Browne transported workers in the box of the pickup truck after the
accident.

[217]     Mr. Goossen
stated that it first came to his attention that his granddaughter, Annie, was
transporting workers when she arrived at the farm. He had expected his
daughter, Mrs. Browne, to transport the workers.

[218]     Mr. Goossen
stated that while he was transporting workers, he did not see his granddaughter
at any of the centres where workers were being picked up. Mr. Goossen
understood that Annie had made two trips to the barn to deliver workers, but he
was “not sure”.

[219]     Mr. Goossen
was aware that Annie held a novice license. He understood that this designation
was a signal to experienced drivers on the road to give some leeway when they
saw such drivers.

[220]     During the
evening work, Mr. Goossen observed Annie working with the chickens. When the
work ended, he started a conversation with Annie. He had heard for the first
time during the evening that Annie had transported the workers in the back of
the truck.

[221]     In his
examination-in-chief, Mr. Goossen provided his version of the conversation
between he and his granddaughter as follows:

Q         And then, did you have any discussion with
your granddaughter Adrianna, just before or at any time before she left the
barn to transport workers back, if she — did she transport workers back?

A          She transported workers back. She took one
trip and it ended shortly. But yes.

Q         All right. And did you have any discussion
with her before that occurring?

A          Yes, I wanted her to take two trips and she
didn’t want to, she was tired and had a long day. And I said, “Fine, take one
trip. Take only the guys that you can in the truck and deliver them, drop them
to the Mission and go to only one place, in the Mission only. And I’ll look
after the rest.”

Q         My learned friend keeps interrupting my — my
examination. Could you repeat what you said to her?

A          I said to her take only what you have seats
for in the truck. And then that was — that was where it was left and she was
sent and left. And I was dealing with workers at the — in the barn, inside of
the office. You know, so I have no idea what happened after that, she went out.

Q         Did you talk to her about seatbelts in the
truck?

A          By saying for the seats you have, naturally
it’s seatbelts.

Q         And then what was your plan then after she
took the one trip? What were you going to do then?

A          Well, I was going
to call my wife who was at home and say, “Take my truck and take another trip
for me.” which we did.

[222]    
In cross-examination of Mr. Goossen:

Q         Okay, sir, so which version that you’ve given
today of what you said to Andy actually took place? Was it the first version of
the discussion when you said essentially only take what you can get into the
truck? Or it was the second version after my friend asked you what did you mean
by that, when you said only take what you have seats for? Which version is the
true version of what you said?

A          The true version
would have probably been take what’s –only would you could put in the truck.

[223]    
Mr. Goossen’s cross-examination extended over parts of two days. On the
second day, Mr. Goossen told the court that he had lost confidence in what he
testified to the previous day and that he had been worrying about it all night.
He thought he was having problems with his memory. This led to the following
exchange:

THE CLERK:   You’re reminded of your affirmation.

A          You know what, I really — I really have to
take that back because obviously I’m not convinced, I don’t really know the
truth, and so I can’t promise to give you the whole truth and nothing but the
truth because obviously —

THE COURT:  Well do your best.

A          Okay.

THE COURT:  All right.

[224]    
In a statement given by Mr. Goossen within four days of the accident to
a representative from the Insurance Corporation of British Columbia (“ICBC”),
he stated that he had become aware that Annie would be driving a day before the
accident. Mr. Goossen gave the following responses at his examination for
discovery on November 28, 2012:

Q         Okay. So did you have a phone conversation
with your granddaughter, Annie, on the day of the accident before she picked
the workers up?

A          No so I recall.

Q         Now when did you first become aware of the
fact that Annie was driving people on that day, the day of the accident?

A          I would expect when she arrived with them.

Q         Okay. And were you there when she arrived?

A          Possibly. I’m sure I was either on the road
or there. I’m not — can’t — can’t say.

Q         Okay. So it was your understanding that Annie
was going to be going to the New Life Mission to pick people up; correct?

A          No, I don’t think
I — I even knew that Annie was driving.

[225]    
Mr. Goossen, in his cross-examination, stated the following relating to
the statement he gave to an ICBC adjuster on November 26, 2006:

Q         Okay. And I want to put — this is the
statement you gave on November 22^nd, 2006 to the ICBC adjuster.

A          Mm-hmm.

MR. BRUN:     If your counsel wants to put that in front
of you.

MR. TAYLOR: Is this the handwritten?

MR. BRUN:     The handwritten one.

THE COURT:  Okay, what’s the date again, please?

MR. BRUN:     November 22, 2006. I’d like your counsel
to put page 8 in front of you.

MR. TAYLOR: Page 8?

MR. BRUN:     Yes.

MR. TAYLOR: November 22^nd ’04, handwritten
statement?

MR. BRUN:     It’s actually ’06. It looks like ’04 —

MR. TAYLOR: ’06, okay.

MR. BRUN:     — which is why I made that mistake
yesterday, but you quite correctly corrected me on that and now I’m correct.

MR. TAYLOR: Very well.

MR. BRUN:     Right at the third line (as read in):

Q         How did Adrianna come to drive on the 17^th
of November 2006?

And right after
that there is a signature, I take it that’s your initial, is that correct?

A          Yes.

Q         Okay.
[As read in]:

A          Cherry had a recital. She said she told me,
but I don’t remember. I said who is going to drive? She said she would get
someone. I think I found out Adrianna was going to drive the day before, and I
spoke to her and told her just go to the Mission and I’ll do the rest.

Do you remember saying that?

A          Not so I could say honestly I remember it,
no. But I would expect at that time I would have remembered it and signed for
it and said yes.

Q         So you’ll agree with me yesterday when Mr.
Taylor was asking you questions about whether you knew [indiscernible]. you’re
simply mistaken on that point when you said you didn’t know that?

A          Yes, my memory says no, but

THE COURT:  Your memory says no?

A          I don’t remember.

THE COURT:  All right.

A          But — but
obviously I knew.

[226]     Mr. Goossen,
in cross-examination, acknowledged that on one occasion, when transporting
workers, there were more workers than there were seatbelts to accommodate them,
and when his van was full, he had stuck an extra person in the van. He said
that his daughter, Mrs. Browne, drove a truck with extra people in the back.

[227]     This
evidence, upon which the defendants rely, became confusing. Mr. Goossen did not
use a pickup truck to transport workers. Further, Mr. Goossen mistook the
number of people he transported in his van on the date of the accident. Mr.
Goossen assumed that the Windstar carried eight passengers, including himself,
but he confused the number of people his van would carry with a previous van
which did carry eight passengers. I conclude that on the day of the accident,
Mr. Goossen transported only seven people, including himself. On the day of the
accident, all workers that Mr. Goossen transported had seatbelts.

[228]     Mr.
Goossen said that after he left the farm with the workers in his van, he came
upon Annie running towards him on the road. He picked her up and put her in the
van. He let the workers out of the van and drove to his home and called the
police. He then went back to the scene of the accident, which he described as
horrible. People were screaming, crying and hollering. He held the hands of the
workers and tried to comfort them. After the accident and days following, he
went to see the workers.

[229]     Mr.
Goossen denies stopping and speaking with Annie as he was driving towards
Kamloops. None of the plaintiffs who were driving in the pickup from the NLM
were asked whether Annie stopped the truck on the road to the farm. I accept
Mr. Goossen’s evidence.

[230]     I also
conclude that Mr. Goossen was not at the NLM when Annie was loading the truck
for the trip to the farm, nor was he outside when the truck was loaded for the
trip back to the NLM.

[231]     Mr.
Goossen’s evidence was confusing. It was obvious that Mr. Goossen was doing his
best to answer the questions posed to him, but that his memory was failing. In
trying to recall events, he relied on things that other people told him,
accepted those facts, and then tried to figure out the facts that he should
know.

[232]     Mr.
Goossen was not deceitful and he has no motive to be. He tried the best he
could.

 Cherry Lynn Ebl

[233]     At the
time of the trial, Ms. Ebl was age 38. At the time of the accident, she was a
salaried employee of Sunshine, having worked for them for four years. Her
immediate boss was her father, Fred Goossen.

[234]     On the day
of the accident, Ms. Ebl could not drive the workers to the farm. She was
committed to sing at a concert that started at 8 p.m. After the concert, around
10 p.m., Ms. Ebl returned to the farm and worked with the chickens. She
intended on driving some of the workers home.

[235]     Ms. Ebl
testified that she told her father of her commitment to sing at the concert
only the day before. Her father asked her to ask her sister, Mrs. Browne, to
drive. Ms. Ebl did so, and her sister agreed to drive. Ms. Ebl testified that
she did not know that Annie would be driving.

[236]     Ms. Ebl
denies that any conversation took place between herself and her sister and
Annie as described by Annie and Mrs. Browne the evening before the accident.

[237]     She
testified that she saw Annie when she arrived at the barn, but she did not
remember seeing the truck. She did not suggest that it was not there, but
rather that it was dark outside. While Ms. Ebl acknowledged that she stood by
Annie at the chicken picking machine and that they engaged in a conversation.
She denied having the conversation as described by Annie at the side of Annie’s
truck with the workers either loaded or being loaded.

[238]     Ms. Ebl
had driven workers on six previous occasions. It was not by a truck, but by an
old station wagon that she had. All workers had seatbelts. She was very clear
that her rule was that no one could ride in her vehicle unless they were
seatbelted.

[239]     She stated
that she had never observed her father driving workers without seatbelts. She also
had no memory of her sister transporting workers in the box of a pickup truck,
but she vaguely recalls a family meeting about transporting workers in the box
of the pickup. She could not recall any specifics of the discussion.

[240]     After a
lengthy cross-examination, Ms. Ebl acknowledged that she gave a statement to an
ICBC adjuster that she knew, prior to the accident, that Annie would be driving
some of the workers.

[241]     Ms. Ebl
testified that after Annie left the barn and the farm, she intended to go home
and get another vehicle for the purpose of transporting the workers home. Her
father persuaded her to take her truck; however, on the basis that Sunshine
would clean it after transporting the workers. Ms. Ebl said she had the truck
only for about a month and did not want to get it dirty.

[242]     Ms. Ebl’s
evidence is confusing as to her actions on leaving the farm. She initially
stated that she left the farm with the workers in the truck and could not
proceed any further, as the road was blocked due to the accident. In
cross-examination, however, she said that she learned of the accident when she
was at her parents’ home after her father arrived and told her that Annie had
been in an accident.

[243]     In giving
her testimony, Ms. Ebl was trying very hard to recall the events of the night
of the accident. It was clear that she was having difficulties with her memory
and she was visibly upset.

[244]     On the
evening of the accident, Ms. Ebl’s son, David, was at the barn working. At that
time, David did not have a driver’s license. Ms. Ebl could not explain how he
got from her home to the barn, unless he drove a car without a driver’s
license. She said that if this happened, she had not consented to it. This
evidence was elicited from Ms. Ebl by the defendants. According to the
defendants it goes to show that Ms. Ebl and her father disobeyed the rules for
transporting workers. This evidence does not determine anything and I do not
find it helpful.

Other Witnesses

[245]     The
Brownes called two other witnesses: Mr. Alibhai and Mr. Goth.

[246]    
Mr. Alibhai was the occupational health and safety officer who travelled
to Kamloops to investigate the accident. During his investigation on November
23, 2006, he interviewed Annie, Mr. Goossen and Mr. Alibhai, the latter two at
times together. As a result of his investigation, he prepared a report. I
admitted only the following evidence from his report:

This is in contravention of the Workers Compensation Act
Section 115(1).

Every employer must ensure the health and safety of:

 (i) all workers working for that employer, and

 (ii) any other workers present at a workplace at
which that employer’s work is being carried out, and

(b)        comply with this Part,
the regulations and any applicable orders.

[247]     Mr. Goth
gave evidence as to the seating capacity of a Windstar van. It is seven people,
including the driver.

THE LAW

Contributory Negligence

Seatbelts

[248]    
The relevant sections of the MVA are as follows:

Seat belt assembly

220 (1) In this section, "seat belt
assembly" means a device or assembly suitably fastened to the motor
vehicle composed of straps, webbing or similar material that restrains the
movement of a person in order to prevent or mitigate injury to the person and
includes a pelvic restraint, an upper torso restraint or both of them.

(4) A person in a motor vehicle
being driven or operated on a highway must, if the motor vehicle has properly
attached to it a seat belt assembly for the seating position occupied by that
person, wear the complete seat belt assembly in a properly adjusted and
securely fastened manner.

[249]    
The relevant sections of the Negligence Act are as follows:

Apportionment of liability for damages

1 (1) If by the fault of 2 or more persons damage or
loss is caused to one or more of them, the liability to make good the damage or
loss is in proportion to the degree to which each person was at fault.

(2) Despite subsection (1), if, having regard to all the
circumstances of the case, it is not possible to establish different degrees of
fault, the liability must be apportioned equally.

(3) Nothing in this section operates to make a person liable
for damage or loss to which the person’s fault has not contributed.

Awarding of damages

2 The awarding of damage or loss in every action to
which section 1 applies is governed by the following rules:

(a) the damage or loss, if any, sustained by each person
must be ascertained and expressed in dollars;

(b) the degree to which each person was at fault must be
ascertained and expressed as a percentage of the total fault;

(c) as between each person who has sustained damage or loss
and each other person who is liable to make good the damage or loss, the person
sustaining the damage or loss is entitled to recover from that other person the
percentage of the damage or loss sustained that corresponds to the degree of
fault of that other person;

(d) as between 2 persons each of whom has sustained damage
or loss and is entitled to recover a percentage of it from the other, the
amounts to which they are respectively entitled must be set off one against the
other, and if either person is entitled to a greater amount than the other, the
person is entitled to judgment against that other for the excess.

Liability and right of contribution

4 (1) If damage or loss has been caused by the fault
of 2 or more persons, the court must determine the degree to which each person
was at fault.

(2) Except as provided in section 5 if 2 or more persons are
found at fault

(a) they are jointly and severally liable to the person
suffering the damage or loss, and

(b) as between themselves, in the absence of a contract
express or implied, they are liable to contribute to and indemnify each other
in the degree to which they are respectively found to have been at fault.

[250]     Counsel
for the plaintiffs referred me to a number of cases which included situations
where plaintiffs have no other option other than to ride in the back of a pickup
truck, in the cab, or in a motor vehicle without the use of seatbelts.

Bissky v. Trottier (1984), 54 B.C.L.R. 288 (S.C.)

[251]     Prior to
the defendant’s motor vehicle turning into the path of a motor vehicle that Mr.
Bissky was riding in, Mr. Bissky was sitting on a cushion on the console of an
El Camino sport truck. No seatbelt was available for Mr. Bissky at the time of
the accident.

[252]     While the
court found the defendant driver responsible for the accident, it considered
the issue of contributory negligence arising from Mr. Bissky sitting on the
console not belted in by a seatbelt. The defendants claimed that Mr. Bissky accepted
a position of vulnerability and thereby took a calculated risk.

[253]    
The owner of the vehicle had sought employment in northern British
Columbia. He suggested that Mr. Bissky accompany him on the chance that Mr.
Bissky might also obtain employment. They left Vancouver and stopped at Clinton
overnight. In Clinton, they met up with another friend who was also unemployed.
They persuaded him to accompany them on their trip. This friend was a large man
and it was impractical for him to sit on the console. Thus, it fell to Mr.
Bissky. At a gas station, the owner and the new man traded positions, leaving
Mr. Bissky to continue on the console. Mr. Justice Macdonald made this
observation:

[25] Bissky was not aware
when he left Vancouver that he would end up riding on the console. That
eventuality did not present itself until Wheelihan decided to accompany them.
Once he did, Wheelihan’s size and Young’s ownership of the El Camino [relegated]
Bissky to his position on the console. His only alternative would have been to
refuse to continue the trip and to return to Vancouver by bus with his baggage
and rifles.

[254]    
Mr. Justice Macdonald, after considering similar cases, concluded:

[27] … In some cases,
special circumstances will justify a departure from the general rule. It was reasonable
for Bissky to elect to sit on the console, despite the absence of adequate
restraints in that location, rather than refuse to continue the trip.

[255]     The court
found no contributory negligence.

Massey (Guardian ad litem of) v. Donze, [1984] B.C.J. No. 162 (S.C.)

[256]     The
plaintiff brought two actions for damages which were heard at the same time.
Both actions involved motor vehicle accidents.

[257]     In the
first action, contributory negligence was raised as against the plaintiff for
not wearing a seatbelt.

[258]     The plaintiff,
in the early hours of the morning, was sitting on a console between two bucket
seats in the front of a motor vehicle driven by the defendant, Mr. Donze. Mr.
Donze ran into the vehicle in front of him, which resulted in injuries to the
plaintiff.

[259]     Prior to
the accident, the plaintiff and defendant had been to a party. When they left,
the plaintiff was a front-seat passenger and there were two occupants in the
back of the car. As the defendant drove, the defendant stopped and picked up
two other people. The plaintiff slid over and sat on the console between the
two seats. One person sat in the passenger seat and the other sat in a seat in
the back of the truck. There were no seatbelts for the plaintiff sitting on the
console.

[260]    
It was winter, and the defendant did not intend on driving a long
distance. The court found the plaintiff had no control over who the driver
invited to ride in his car. Mr. Justice Hinds stated:

[22] On the evening of January the 8th, 1982 the
plaintiff was at the Langley Hotel drinking beer. She was then just over
eighteen years of age. The defendant, Randy Donze, entered the beer parlor and
he and the plaintiff each consumed one beer. They went in the defendant Donze’s
motor vehicle to a party at the equestrian centre, a short distance north of
Langley where they stayed for approximately one and a half hours. When they
left the party, after midnight, there were four occupants in the motor vehicle.
There were two young men in the back seat. The plaintiff in the front
passenger’s seat, and the defendant Donze was driving. They were returning
towards the centre of Langley. Donze stopped and picked up two more young men.
One got in the back seat. The plaintiff slid over and sat on the console
located between the two bucket seats which were positioned in the front of the
car. The other young man sat in the passenger bucket seat in the front of the
car. There were seatbelts for the two bucket seats, but there was no seatbelt
provided for a person such as the plaintiff who sat on the console.

[23] After driving a relatively short distance, Mr.
Donze ran into the back of a motor vehicle that was in front of him. His car
was damaged beyond repair.

[24] …I do not consider
it would be realistic for the plaintiff to have refused to have sat on the
console, or to have got out of the car when Mr. Donze stopped to pick up the
two additional passengers. It was not unreasonable for the plaintiff to have
moved from the right bucket seat and to sit on the console despite the absence
of an available seatbelt for a person sitting in that position. Under the
foregoing circumstances, I am not satisfied that the plaintiff was
contributorily negligent with respect to the injuries she received in the
accident as a result of sitting on the console where no seatbelt was available
for her to wear: See Bissky v. Trottier (1984), 54 B.C.L.R. 288, a decision of
MacDonald J., dated April 26th, 1984, B820611, Vancouver Registry.

Iannone v. Hoogenraad, (1990), 50 B.C.L.R. (2d) 390 (S.C.)

[261]     In Iannone,
the plaintiff was injured in a motor vehicle accident. He and a friend had
travelled from White Rock to the B.C. Lions’ game  in his friend’s vehicle. The
plaintiff’s friend wanted to party. The plaintiff wanted to go home. Another
friend of the plaintiff offered him a ride in a pickup truck with the seats
removed. The plaintiff accepted the ride. He rode against the back of the front
seat on the floor. The vehicle was struck broadside, causing injuries to the
plaintiff.

[262]    
The defendants pleaded contributory negligence. Mr. Justice Maczko
considered both Bissky and Scopazzo v. Campbell, S.C.B.C.
Vancouver Registry Action No. C830674 and Action No. B840070, March 14, 1986,
Hinds J. Maczko J. stated:

In order to establish contributory negligence the defendant must
prove two elements: first, that the plaintiff’s conduct showed a want of
reasonable care for his own safety which caused or rendered the injuries more
serious and, secondly, that had he conducted himself in a reasonable manner his
injuries would have been avoided or lessened … No such evidence was presented
here.

I believe that riding in the back
of the Blazer was the only realistic alternative the plaintiff had for
returning from Vancouver to White Rock. The issue, of what are realistic
alternatives, has been dealt with by this court. In Bissky v. Trottier et al.
the plaintiff was seated on a cushion on the centre console of the car and as a
result of the accident was very seriously injured. It was argued that the
plaintiff had been contributorily negligent in sitting in a position where no
seatbelt was available to him. It was held that the plaintiff was not
contributorily negligent as he had not been aware when he departed Vancouver
that he would end up riding on the console. That eventuality did not present
itself until another party decided to accompany them on their trip to northern
British Columbia. Once he did, one party’s ownership of the car and the
passenger’s large size relegated the plaintiff to his position on the console.
it was reasonable for him to elect to sit on the console, despite the absence
of restraints in that location, rather than refuse to continue the trip. If the
plaintiff had refused to occupy the console his only alternative would have
been to return to Vancouver by bus with his baggage and rifles. A parallel can
be drawn to the case at bar in which the plaintiff had no cab fare or alternate
transportation for the trip to White Rock.

[263]     Maczko J.
found that the plaintiff had no money for a cab and that it was the only ride
available to White Rock. As such, it was not realistic for him to call his
father or brother to pick him up.

Fennellow v. Falez, [1993] B.C.J. No. 2445 (S.C.)

[264]     In Fennellow,
the 15-year-old plaintiff was riding in the open back of a pickup truck when
the driver lost control. The plaintiff and two others riding in the back of the
pickup with him were thrown from the vehicle.

[265]     The
plaintiff had gone to a party with friends. The hosts of the party were not
known to him, and the person who had driven him there disappeared shortly after
arriving. Moreover, to the plaintiff’s surprise, this was a “biker’s party” and
most of the people were much older than him. He was quite frightened. There was
drinking and fights were breaking out.

[266]     Eventually,
the plaintiff wanted to leave the party. He telephoned home, but no one
answered. There was no one else he could call for a ride, and his home was 20
to 40 minutes away. He had no money for a taxi. Therefore, his only option was
to take a ride with his friend and the driver defendant. There was no room in
the cab of the truck, so the plaintiff rode in the open back of the truck as
close to the cab as possible.

[267]     In
discussing contributory negligence, Mr. Justice Coultas observed that the facts
were very similar to those in Iannone. He concluded that the plaintiff
was not contributorily negligent, stating:

[95] I find that the
Plaintiff was not contributorily negligent in accepting a lift in the truck in
the circumstances. He tried to get a lift from his family. He had no money.
Being only 15 years of age at a party of this character, it is understandable
that he was frightened and wished to leave with the only friends he knew there.

Fraser v. Arnold, [1991] B.C.J. No. 3038 (S.C.)

[268]     In Fraser,
the plaintiff was riding in the back of a pickup truck when it left a forest
road, hit a stump, and overturned. The surface of the road consisted of “pot
holes and ruts”.

[269]     The
plaintiff and two others had been to a concert. They met up with two other
friends at midnight. They set off to attend a party at a nearby lake. The five
of them decided to go in the pickup truck, despite the fact that one of the
people had a car with her.

[270]     Those
riding in the cab were not seriously injured. A young man riding in the back of
the truck with the plaintiff also received “no severe injuries.” The plaintiff,
as observed by the trial judge, had the presence of mind to tuck his head and
roll, which resulted in less serious injuries.

[271]    
In assessing contributory negligence at 10 percent, Mr. Justice Boyle
stated:

[41] 1. Was there
contributory negligence? Riding in the back of the pickup was in no sense a
necessity. The case is distinguishable from Iannone v. Hoogenraad and
others (Vancouver Registry No. B880680, October 1990). "Socially
preferable" is a better description than necessity, even given the
evidence for the Plaintiff of unreliability of the other car available. A risk
that could reasonably have been foreseen in these days of Rick Hanson’s example
was assumed. In all the circumstances that risk was no higher than 10% of the
total negligence. It will be fixed in that amount. [Emphasis added]

Scopazzo v. Campbell, (March 14, 1986), Vancouver C830674/B840070
(BCSC)

[272]     In Scopazzo,
the court was required to assess damages for two separate motor vehicle
accidents in which the plaintiff had been involved. In the second accident, the
defence of contributory negligence was raised.

[273]     The
plaintiff went to an all-day softball tournament. He rode with a friend, who at
some point in time left the tournament. At the end of the tournament, the
plaintiff asked his friend, the defendant, if he and two other people could
ride towards Vancouver in the back of a pickup truck. The cab of the truck had
two other passengers in it.

[274]    
The two other passengers in the back of the pickup were let off and the
plaintiff continued in the box with his head pointed towards the cab. When the
defendant’s vehicle struck the truck, the plaintiff was pushed forward and he
struck his back on the front of the box. He suffered fractures to his spine. After
considering a number of authorities, Mr. Justice Hinds stated:

[52] The foregoing authorities  reveal that consideration
must be given to all of the circumstances surrounding the injury of a person
riding

(a)        in the back of a camper mounted
on a pickup truck (the Bennett case);

(b)        on the front fender of a
vehicle (the Frehlick case);

(c)        on the tow bar of a traxcavator
(the Jones case);

(d)        on a cushion on the centre console
located between two bucket seats (the Bissky case);

(e)        in the back of a van (the Higgins
case);

(f)         on the rear of a flatbed farm
truck (the Levesque case);

(g)        the open deck or box of a pickup
truck (the Van DeSype case).

[54] Taking into consideration
the circumstances of this case and the authorities above-noted, I find that the
defendants have not established on a balance of probabilities that the
plaintiff was contributorily negligent and accordingly that defence with
respect to the second accident does not succeed.

[275]     When
considering the authorities related to seatbelts, there are two lines of cases:
(i) where the plaintiff rides in a motor vehicle unrestrained; and (ii) where
the plaintiff rides in the box of a pickup truck. Again, the cases above were
cited to me by the plaintiffs, where the contributory negligence defence was
raised for failure to wear a seatbelt. The cases cited to me by the defendants,
Annie and Mrs. Browne are Fraser; James (Guardian ad litem of) v. Hruschak,
[1997] B.C.J. No. 185 (S.C.); Kendall v. Fontaine, [1995] B.C.J. No.
1636 (S.C.); and Thon v. Podollan, 2001 BCSC 194. These cases are
distinguishable. In each case, there was no necessity for the plaintiffs to
accept a ride where there was no seatbelt or where the plaintiff was asked to
ride in the box of a pickup truck.

[276]    
Mr. Justice Parrett makes the distinction in Kendall:

[45] The decision to ride
in the box of the defendant’s pickup, was not brought about by necessity, Ms.
Joseph’s vehicle had broken down some four to five hours earlier on their way
to Troy Rainbow’s, and taxis had already been called to the residence by some
of those in attendance. It was hardly necessary for the plaintiff to continue
to "party" at yet another location.

Discussion

[277]     Contributory
negligence is not a defence against Mr. Schulz and Mr. Tataryn as they were
seatbelted. The issue of contributory negligence relates to Messrs. Aldridge,
Anhorn, Bernacki, Charlie, Ficarini, Grierson, Moore, Moss, Proulx, and Wood,
and Ms. Leicester.

[278]    
The allegations of contributory negligence in the statement of defence
are as follows:

4.         In further answer to the whole of the Statement of
Claim herein, the Defendants say that if an accident occurred, which is not
admitted but which is specifically denied, then the accident was caused or
contributed to by the negligence of the Plaintiff. Particulars of the
negligence of the Plaintiff are as follows:

a.         in getting into an overcrowded
motor vehicle which did not have a proper seat or a proper seatbelt assembly
installed for the Plaintiff’s use;

b.         in not wearing and having
properly adjusted and securely fastened the complete seatbelt assembly
installed in the motor vehicle in which the Plaintiff was riding, contrary to
the provisions of s. 220 of the Motor Vehicle Act, R.S.B.C. 1996, c.
318, and amendments thereto;

c.         in failing to have adjusted
properly the headrest devices installed in the motor vehicle in which the
Plaintiff was riding;

d.         in failing to warn the
Defendant, ADRIANNA LEE BROWNE, to reduce the speed of the motor vehicle having
regard to the time and place of the accident, the climatic conditions, the
nature of the roadway, and his own physical and mental condition; and

e.         in urging the Defendant,
ADRIANNA LEE BROWNE, to drive the motor vehicle when it was overcrowded.

5.         In further answer to
the whole of the Statement of Claim, the Defendants plead and relies on the
provisions of the Negligence Act, R.S.B.C. 1996, c. 333, and amendments
thereto.

[279]     The onus
is on the defendants to prove contributory negligence. In reviewing the
allegations in paragraph 4 of the statement of defence, there was no evidence
called regarding the use or non-use of headrests, or that the plaintiffs urged
Annie to overcrowd the vehicle.

[280]     Both the
plaintiffs and defendants emphasize the mode of transportation which each of
the workers used to travel to the farm. The difference was whether they
travelled with a seatbelt in the van and cab of the truck, or whether they
travelled in the box of the pickup. The importance of this evidence is only as
to narrative and the expectations of the workers. No accident occurred prior to
reaching the farm. The issue of contributory negligence in these circumstances
should only be considered in the circumstances of Annie’s negligence as she
drove towards the NLM and on Long Lake Road.

[281]     The
defence alleged that the plaintiffs, Messrs. Anhorn, Bernacki, Charlie,
Ficarini, Grierson, Moore, Moss, Proulx, Wood, and Ms. Leicester were
contributorily negligent in getting into either the box of the pickup truck or
the cab of the truck without seatbelt restraints.

[282]     I think it
is obvious that the purpose of the box of the pickup is to carry cargo and not
people.

[283]    
Mr. Justice Parrett defines contributory negligence in Kendall at
paras. 30-32:

[30] It is the value of individual responsibility
which underlies, in my respectful view, the fifth element of the cause of
action of negligence identified by Professor Fleming in his text The Law of
Torts, (6th ed, 1983). The first four elements are (1) the existence of a duty,
(2) a failure to conform to the standard required, (3) a reasonably close
causal connection between the conduct and the resulting injury, and (4) actual
loss or damage. To this Professor Fleming adds a fifth element: (5) the absence
of any conduct by the injured party which would preclude him from recovering.
Within this element is subsumed the concepts of contributory negligence and
voluntary assumption of risk.

[31] Conduct is negligent when it creates an
unreasonable risk of harm. In determining this issue the law is asked to
balance the danger created against the social value or utility of the activity.

[32] The standard of care
required of an injured party is no different than that required of a defendant.
Put simply, each person must act reasonably to ensure their own safety, as they
must to ensure that of others.

[284]     I have
dealt with the circumstances and backgrounds of each of the thirteen workers, I
have come to the following conclusions:

1)    Sunshine sought
workers who were residing in shelters by posting notices of the work. This was
not the first time that they relied on such individuals;

2)    Mr. Goossen, the
manager of Sunshine, was familiar with homeless people. He thought that in
hiring these people, he was doing a kindness;

3)    Mr. Goossen and
his family worked alongside these workers. On the evening of November 17, 2006,
Annie, Mr. Goossen and Ms. Ebl performed the same tasks as the plaintiffs, and
at the same rate of pay;

4)    The farm on
which the work was done was in an unincorporated area, having no public transportation,
no street lights, or sidewalks;

5)    On the evening
of November 17, 2006, when the workers were to return home, it was late (after
11 p.m.) and dark and cold;

6)    The workers were
poor. Most were homeless, on social assistance, and addicted to drugs or alcohol,
or both. One plaintiff had a mental health condition for which he was
medicated.

[285]     I reject
the evidence that Annie was speeding on her way to the farm. None of the
workers who said that she was speeding stated how they came to this conclusion.

[286]     Each of
the plaintiffs worked for about three hours. Mr. Goossen told the workers that
the work was finished. He paid cash to some of the workers and postponed the
payment of the workers who were coming back the next day.

[287]     Before the
workers left the farm, a conversation occurred between Annie and Mr. Goossen.
Parts of the conversation were overheard by the workers. Those parts were not
exactly the same, but were consistent as to what took place between Annie and
her grandfather, as stated in their evidence.

[288]     The
defendants claim that Mr. Ficarini overheard the whole conversation and adopt
what he said, except for that part of the conversation where Annie used the
words, “one fucking trip.” Mr. Ficarini, at trial, said he overheard the
conversation between Annie and her grandfather when he was in the barn. At his
examination for discovery, Mr. Ficarini stated the conversation took place when
he was getting into the truck. He also stated at that time that he caught the
tail end of the conversation. Various workers overheard parts of the
conversations. Others heard none of the conversation, but observed that an
argument had occurred between Mr. Goossen and Annie and that they were unhappy.

[289]     Mr. Wood
said that he overheard a conversation between Ms. Ebl and Annie in the barn
during which Annie told her aunt that she needed to get home. She had to work
at Tim Horton’s. Plus, she had worked at Tim Horton’s and the farm that day.
Ms. Ebl said that she had a conversation with Annie, but that it was by the
chicken-picking machine when they were working.

[290]     I conclude
that it had come to Mr. Goossen’s attention that Annie had driven up to the
farm with the workers in the box of the truck. That is what Mr. Goossen wanted
to address in his conversation with Annie. Mr. Goossen told Annie that she
should take two trips, whereupon Annie responded by saying she was taking “only
one fucking trip.” She had to drive home and she was tired.

[291]     Probably
the most reliable version of the conversation comes from Mr. Goossen and Annie.
Mr. Goossen had difficulty recalling the exact words of the conversation. Annie
acknowledged that her grandfather told her she should take two trips to the
NLM. Annie said she was only going to take one. I find that she knew her
grandfather wanted her to transport the workers safely; that is, all wearing
seatbelts.

[292]      I find
that Annie knew that the people were required to wear seatbelts in vehicles
when travelling on the highway. Annie knew that when she told her grandfather
she would make only one trip, her grandfather then said, “I will take the
rest.” I also find that Annie knew that her grandfather expected her to take
the workers in the cab of the truck and only so many as there were seatbelts.
Her responses to the questions posed to her at her examination for discovery
confirm this. I do not accept her explanation that the questions were
confusing.

[293]     After the
conversation with her grandfather, it was obvious to the workers that Annie was
in a bad mood and that she was in a hurry. She is alleged to have said “Get in
the back of the truck or you’re fucking walking” (Moss); “Get your asses in the
truck or you’re fucking walking” (Grierson); “Get into the truck” (Moore); “Get
in the truck” (Bernacki); “Get in the truck or walk” (Anhorn); “I’m only taking
one trip. Get in the fucking truck or you’re walking” (Charlie); “Get into the
truck, I’m leaving”. (Aldridge); “If you want a ride, get in now or you’ll walk
home” (Schulz). I conclude that Annie had no respect for these workers and did
not care about them. They were “bums”. I conclude that Annie told the workers
that she was taking one trip only. I also conclude that Annie likely used
profanity. She had no difficulty in her evidence calling her grandfather an
“asshole”.

[294]     Although
there are different versions from the workers as to what Annie said, she may
have made her intentions known more than once. In any event, her intentions
were clear – she was making one trip; she was leaving right away; and if any of
the workers were not in the truck when she left, they would have to walk home.

[295]     What Annie
did not tell the workers was that although she was only taking one trip, Mr.
Goossen would take the rest of the workers home. Annie also did not tell the
workers that she knew her grandfather wanted her to take only a number of workers
where there would be sufficient seatbelts in the truck.

[296]     Annie
controlled the workers’ transportation and she called the shots.

[297]     The
workers were poor, homeless, and sick. They were told by Annie if they did not
get in the truck they would have to walk home. Walking home was not an option.
It was 15 kilometres to the NLM. It was dark. It was cold. There were no
sidewalks, and no public transportation. Some, if not all of the workers, were
not properly clothed and Mr. Moore needed his medication.

[298]     By necessity,
the workers had no option but to be passengers in the truck without seatbelts,
either in the cab or the box of the pickup truck.

[299]     These
thirteen men and one woman were facing conditions more severe than those facing
the plaintiffs in Iannone, Bissky, Massey and Fraser.

[300]     Based on
the circumstances facing each of these workers, I conclude that not one of them
was contributorily negligent.

Liability of the Defendants, Annie
and Mrs. Browne

[301]     I conclude
that Annie drove the truck recklessly and at a rate of speed which was
excessive given the nature of Long Lake Road. I find that Annie was negligent. Her
novice license, as opposed to a full license, had nothing to do with why the
accident occurred. Given her age, she was an experienced driver and she drover
every day. She was very familiar with the route from the NLM to the farm and
back, particularly along Long Lake Road. I reject any of the evidence of the
workers who stated that Annie was driving to the farm at an excessive rate of
speed.

[302]    
Some of the people assumed and believed that Annie, when she left the
farm in the truck to transport the workers back to the NLM, was tired. I do not
accept this. At her examination for discovery on August 1, 2012, she stated:

Q         How would you describe your alertness level or
fatigue level is you like depending where you want to put it by the time we’ve
now reached 11:00 p.m. on November 17^th, 2006?

A          I don’t remember.

Q         All right. What I’m asking you to put your
mind to is that you had worked all day?

A          Yes.

Q         You were up early obviously?

A          Yes.

Q         I haven’t asked you, but did you nap between
those two jobs?

A          No.

Q         No. You now have been up from four in the
morning until eleven in the evening, does that feel about right?

A          Yes.

Q         Did you feel the effects of that at all by
eleven p.m. the evening of November 17^th, 2006?

A          Not that I
recall.

[303]     I find that
Annie was negligent. I also find that Mrs. Browne is vicariously liable for the
negligence of her daughter, Annie, for the accident, as a result of s. 86 of
the MVA, which occurred on November 17, 2006.

WORKERS COMPENSATION ACT

[304]     The last
two issues involve sections of the WCA.

[305]    
The Workers’ Compensation Appeal Tribunal (“WCAT”) heard an appeal
initiated by the defendants. As a result of that appeal, WCAT filed a s. 257
certificate in each of the thirteen actions started by each plaintiff. Each
certificate states the following:

 UPON APPLICATION of the Defendants, ADRIANNA LEE
BROWNE and MRS. DEBRA LEE BROWNE, in this action for a determination pursuant
to section 257 of the Workers Compensation Act;

 AND UPON NOTICE having been given to the parties
to this action and other interested persons of the matters relevant to this
action and within the jurisdiction of the Workers’ Compensation Appeal
Tribunal;

 AND AFTER an opportunity having been provided to
all parties and other interested persons to submit evidence and argument;

 AND UPON READING the pleadings in this action,
and the submissions and material filed by the parties;

 AND HAVING CONSIDERED the evidence and
submissions;

 THE WORKERS’ COMPENSATION APPEAL TRIBUNAL
DETERMINES THAT at the time the cause of action arose, November 17, 2008:

1.         The
Plaintiff … was a worker within the meaning of Part 1 of the Workers
Compensation Act.

2.         The
injuries suffered by the Plaintiff … arose out of and in the course of his
employment within the scope of Part 1 of the Workers Compensation Act/

3.         The
Third Party, GULDAWOOD HOLDINGS INC., was an employer engaged in an industry
within the meaning of Part 1 of the Workers Compensation Act.

4.         The
Third Party, SUNSHINE EGGS INC., was an employer engaged in an industry within
the meaning of Part 1 of the Workers Compensation Act.

5.         The
Third Party, ZAITAMYN POULTRY INC., was an employer engaged in an industry
within the meaning of Part 1 of the Workers Compensation Act.

6.         The
Defendant, ADRIANNA LEE BROWNE, was a worker within the meaning of Part 1 of
the Workers Compensation Act.

7.         Any
action or conduct of the Defendant, ADRIANNA LEE BROWNE, which caused the
alleged breach of duty of care, did not arise out of and in the course of her
employment within the meaning of Part 1 of the Workers Compensation Act.

8.         The
Defendant, MRS. DEBRA LEE BROWNE, was a worker within the meaning of Part 1 of
the Workers Compensation Act (in relation to her employment as a bank
manager).

9.         The
Defendant, MRS. DEBRA LEE BROWNE, was not a worker within the meaning of Part 1
of the Workers Compensation Act (in relation to the events which
occurred on November 16 and 17, 2006 involving her provision of consent or
authorization to the Defendant, ADRIANNA LEE BROWNE, to use MRS. DEBRA LEE
BROWNE’s vehicle to transport workers to and from the farm).

10.       Any action or conduct of the
Defendant, MRS. DEBRA LEE BROWNE, which caused the alleged breach of duty of
care, did not arise out of and in the course of her employment within the scope
of Part 1 of the Workers Compensation Act.

[306]     The
defendants petitioned the court for judicial review of the WCAT decision. Mr.
Justice Leask, who heard the petition, dismissed it. At the time of this trial,
Leask J.’s decision was under appeal. On November 7, 2013, the appeal was heard
and on November 8, 2013 it was dismissed.

[307]    
As it relates to the s. 257 certificate, the relevant sections in the WCA
are:

Exclusive jurisdiction

254 The appeal tribunal has exclusive jurisdiction to
inquire into, hear and determine all those matters and questions of fact, law
and discretion arising or required to be determined under this Part and to make
any order permitted to be made, including the following:

(a)        all appeals from review
officers’ decisions as permitted under section 239;

(b)        all appeals from Board
decisions or orders as permitted under section 240;

(c)        all matters that the appeal
tribunal is requested to determine under section 257;

(d)        all other matters for which the
Lieutenant Governor in Council by regulation permits an appeal to the appeal
tribunal under this Part.

Appeal tribunal decision or action final

255 (1) Any decision or action of the chair or the
appeal tribunal under this Part is final and conclusive and is not open to
question or review in any court.

(2) Proceedings by or before the chair or appeal tribunal
under this Part must not

(a)        be restrained by injunction,
prohibition or other process or proceeding in any court, or

(b)        be removed by certiorari or
otherwise into any court.

(3) The Board must comply with a final decision of the appeal
tribunal made in an appeal under this Part.

(4) A party in whose favour the appeal tribunal makes a final
decision, or a person designated in the final decision, may file a certified
copy of the final decision with the Supreme Court.

(5) A final decision filed under subsection (4) has the same
force and effect, and all proceedings may be taken on it, as if it were a
judgment of the Supreme Court.

Certification to court

257 (1) Where an action is commenced based on

(a) a disability caused by occupational disease,

(b) a personal injury, or

(c) death

the court or a party to the action may request the appeal
tribunal to make a determination under subsection (2) and to certify that
determination to the court.

(2) For the purposes of subsection (1), the appeal tribunal
may determine any matter that is relevant to the action and within the Board’s
jurisdiction under this Act, including determining whether

(a)        a person was, at the time the
cause of action arose, a worker,

(b)        the injury, disability or death
of a worker arose out of, and in the course of, the worker’s employment,

(c)        an employer or the employer’s
servant or agent was, at the time the cause of action arose, employed by
another employer, or

(d)        an employer was, at the time
the cause of action arose, engaged in an industry within the meaning of Part 1.

(3) This Part, except section 253
(4), applies to proceedings under this section as if the proceedings were an
appeal under this Part.

[308]     Section
255(5) of the WCA states that a final decision filed under s. 255(4) has
the same force and effect as if it is a judgment of the Supreme Court of
British Columbia.

[309]    
Section 10 of the WCA has the following provisions which are
relevant to the last two issues before me:

Limitation of actions, election and subrogation

10 (1) The provisions of this Part are in lieu of
any right and rights of action, statutory or otherwise, founded on a
breach of duty of care or any other cause of action, whether that duty or cause
of action is imposed by or arises by reason of law or contract, express or
implied, to which a worker, dependant or member of the family of the
worker is or may be entitled against the employer of the worker, or against
any employer within the scope of this Part, or against any worker, in
respect of any personal injury, disablement or death arising out of and in the
course of employment and no action in respect of it lies. This provision
applies only when the action or conduct of the employer, the employer’s servant
or agent, or the worker, which caused the breach of duty arose out of and in
the course of employment within the scope of this Part.

(2) Where the cause of the injury, disablement or death of
a worker is such that an action lies against some person, other than an
employer or worker within the scope of this Part, the worker or
dependant may claim compensation or may bring an action. If the worker or
dependant elects to claim compensation, he or she must do so within 3 months of
the occurrence of the injury or any longer period that the Board allows.

(7) If, in an action brought by a worker or dependant of a
worker or by the Board, it is found that the injury, disablement or death, as
the case may be, was due partly to a breach of duty of care of one or more
employers or workers under this Part, no damages, contributions or indemnity
are recoverable for the portion of the loss or damage caused by the negligence
of that employer or worker; but the portion of the loss or damage caused by
that negligence must be determined although the employer or worker is not a
party to the action.

[Underlining in original; italic
emphasis added]

DID THE THIRD PARTY, SUNSHINE, CAUSE OR CONTRIBUTE TO THE ACCIDENT OR
INJURIES SUSTAINED BY THE PLAINTIFFS REQUIRING A DECLARATION PURSUANT TO S.
10(7) OF THE WCA?

POSITIONS

The Plaintiffs

[310]     Some of
the plaintiffs’ submissions are directed to the facts; that is, whether Mr.
Goossen and Ms. Ebl’s actions, on behalf of Sunshine, were negligent. That
negligence is whether Annie should have been driving and, secondly, Mr. Goossen
and Ms. Ebl’s knowledge as to the workers riding in the truck without
seatbelts.

[311]    
Messrs. Moss, Ficarini, Grierson, Moore, Bernacki and Proulx submit:

I have set out below two
decisions involving the concept of social host liability. I submit that the
duty and accompanying standard of care in the context of a social host case far
exceeds any duty that would be owed by the Third Party to Ms. Browne and is
consistent with the standard owed to the Plaintiffs by the Third Party.

[312]     Mr.
Tataryn submits that s. 10(7) of the WCA is not applicable because, at
the relevant time, neither Annie nor Mrs. Browne “were engaged in the course of
their employment, and thus had no employer,” consequently there is no merit to
the assertion made by the defendants that the plaintiffs’ claims are barred or
affected by the WCA.

[313]     Mr.
Tataryn states that it is irrelevant that either Sunshine or Mr. Goossen are
potentially negligent in transporting the workers. These allegations, made by
the defendants in the submissions of Mr. Tataryn, are a collateral attack
against the findings of WCAT and Mr. Justice Leask.

[314]     Ms.
Leicester argues that the attempt to attribute employer negligence is an
attempt to re-argue those arguments made to WCAT. She makes arguments relating
to whether Sunshine owed a duty of care to the workers, whether harm was
foreseeable, and whether Sunshine was implicated in the creation of the risk.
This latter argument was made by Messrs. Anhorn, Charlie, Schulz, and Wood.

The Defendants

[315]     The
defendants’ position is that Sunshine, through its representatives, Mr. Goossen
and Ms. Ebl by their actions were negligent or contributory negligent on
November 16 and 17, 2006.

[316]     The
defendants argue that Sunshine fostered, through the actions of Mr. Goossen and
Ms. Ebl, the overloading of the truck and encouraged the truck to be operated
by an inexperienced driver “which made the situation more dangerous” [para. 135
of defendants’ submissions].

[317]     The
defendants argue that Sunshine participated in a culture of transporting
workers in a dangerous situation such as transporting them without seatbelts.

Third Party – Sunshine

[318]     Sunshine
states that it is immune from liability pursuant to s. 10(1) of the WCA.

[319]     Sunshine
argues that the s. 257 certificate determines that the activities of Annie were
in the nature of a favour to the family, in particular Mr. Goossen, the manager
of Sunshine at the time of the accident. Similarly, Mrs. Browne’s action, that
is the use of her truck, was also a favour to the family.

[320]     The legal
effect of a s. 257 certificate is that Annie and Mrs. Browne were not in the
course of their employment as was found by the Vice-Chairman of WCAT, that
Annie and Mrs. Browne’s activities were a favour to their relative, Mr.
Goossen.

[321]     Further,
that the issuing of a s. 257 certificate pursuant to the WCA and by
WCAT, is conclusive and determines matters pursuant to s. 10(1) of the WCA:
Aitken v. Bethell, 2012 BCSC 260.

[322]    
Sunshine argues that Annie’s N license and not having a full license is
not the cause of the accident, rather the cause of the accident was Annie’s
careless driving. Sunshine further argues that:

…It is up to the defendants to
prove that the third party failed to take reasonable steps, in light of its
knowledge, and that those failures were the cause of the plaintiffs’ injuries.

[323]     Sunshine
argues that with any apportionment as to fault there must be evidence that Mr.
Goossen and Ms. Ebl knew that Annie would act in the manner that she did.

Contributory Negligence of the Third
Party

Discussion

[324]     It is not
disputed that Sunshine owed to each of the thirteen plaintiffs a duty of care.
In order to find contributory negligence on the part of Sunshine, I must find
that it breached its duty of care by being negligent on their part in the
transporting of the workers on November 17, 2006.

[325]     If I find
that Sunshine is in breach of its duty of care and it breached it and it was
negligent, I then must determine pursuant to the Negligence Act, that
portion of fault for which Sunshine is responsible. After making that
determination, it is only then that s. 10(7) of the WCA comes into play.
After their assessment of damages for their injuries, each of the plaintiffs’
claims is then reduced by the percentage of fault against Sunshine.

[326]     I conclude
that Ms. Ebl telephoned her sister, Mrs. Browne, the day before the accident.
The purpose of the call was to determine whether Mrs. Browne was driving the
workers the following day. In that telephone conversation, Ms. Ebl learned that
her sister would not be driving and Ms. Ebl then asked if Annie could drive.
The telephone was then passed to Annie, who agreed to drive the workers. Annie
asked her mother if she could have her mother’s truck to drive the workers and
Mrs. Browne gave that consent to Annie.

[327]     On the
night of the accident, Ms. Ebl arrived at the farm at about 10:00 p.m. She
stood beside Annie working at the chicken picking machine. I conclude that she
and Annie had no discussion about the transportation of the workers that
evening.

[328]     I also
conclude that Ms. Ebl was not outside Annie’s truck in conversation with Annie
as the workers were loading into the truck or were loaded. None of the workers
were asked if they observed a person talking to Annie as they were getting into
the truck. I do not accept that Annie asked Ms. Ebl to help her with the
transportation of the workers. There was no reason for Annie to ask Ms. Ebl to
help her transport the workers, as Annie knew her grandfather would take the rest
of the workers. Further, there was no need to ask Ms. Ebl to transport the
workers as Annie, despite the instructions she received from Mr. Goossen, told
the workers to get into the cab and the box of the truck as she was leaving and
would only be transporting workers to the NLM.

[329]     I have
concluded that Ms. Ebl had no knowledge of Annie transporting the workers in
the pickup truck without seatbelts.

[330]     Mr.
Goossen was not at the NLM when Annie was picking up workers to travel to the
farm; nor was he in the yard when the workers were being loaded into the truck
for the trip back to Kamloops. He did not know that Annie had transported the
workers to the farm in the back of the pickup and in the cab without seatbelts.
He only learned of this while the work was being done at the farm or after the
work was completed.

[331]     I conclude
that Mr. Goossen did not know the workers were riding in the box of the pickup
truck and that some of the workers were riding in the cab of the pickup without
seatbelts.

[332]     I find
that, based on the conversation that took place between Mr. Goossen and Annie
after the work at the farm was completed, that Annie was told that she should
only take workers for which seatbelts were available and that Mr. Goossen would
take the rest of the workers.

[333]     It was
reasonable for Mr. Goossen to assume that Annie would follow his instructions,
which were that she would take only workers in the truck where there was
sufficient seatbelts and that he would transport the rest of the workers. When
Mr. Goossen told Annie that he would take the rest of the workers back to
Kamloops, this made it possible for Annie to take one trip only. Having had
this conversation with Annie, there was no need for Mr. Goossen to follow Annie
outside to make sure that his direction was followed.

[334]     I do not
find that it was the habit or culture for Sunshine to transport workers without
seatbelts or to transport workers in the back of a pickup truck. There was only
one occasion that this occurred; that was when Mrs. Browne on a previous occasion
transported workers in the back of her then pickup truck. Mr. Goossen
acknowledged that on occasion he squeezed in another worker into his van
without a seatbelt. I find that did not occur on the evening of the accident.

[335]     I find
that neither Mr. Goossen nor Ms. Ebl knew that Annie would act in the manner
that she did.

[336]     I cannot
find that either Ms. Ebl or Mr. Goossen had any reason to believe that Annie
would drive at an excess speed or in a careless manner. The sole cause of the
accident was the negligence of Annie. I conclude that Sunshine was not
contributorily negligent and did not contribute to the cause of the accident.

WHETHER THE PLAINTIFFS’ CLAIMS ARE STATUTE BARRED AS A RESULT OF S. 10(1)
OF THE WCA?

[337]    
I will deal with Sunshine’s position and some of the plaintiffs’
positions that the WCAT s. 257 certificates determines whether the plaintiffs’
claims are statute barred.

[338]    
It is the court who determines whether an action is statute barred by s.
10(1) of the WCA, and not WCAT. Aitken, cited by Sunshine, was
reversed on appeal: Aitken v. Bethel, 2013 BCCA 29. Mr. Justice
Groberman, for the court stated:

[19]      I am of the view that the judge erred in finding
that the WCAT had effectively decided the issue of whether s. 10(1) of the Workers
Compensation Act bars the action. While the WCAT had determined that the
Minister was not per se an employer under the Act, it had not gone so
far as to determine that the statutory bar was inapplicable. It rightly left
that determination to the courts.

[20]      In Hunt v. T & N, plc (1994), 96
B.C.L.R. (2d) 300 (B.C.S.C.), Thackray J. (as he then was), discussed the
relationship between the jurisdiction of the Workers’ Compensation Board and
that of the courts in determining whether the statutory bar is applicable. He
said:

[11] The foundation upon which the
statutory bar determination rests is within the exclusive jurisdiction of the
Board. Section 96 [a provision corresponding to the current s. 254] provides
that it is within the exclusive jurisdiction of the Board to determine whether
persons are workers or employers within Pt. 1 of the Act.

[12] If at trial these matters, and
others within s. 96, need to be determined then the court would have no
alternative but to request such a determination by the Board. The Board is then
required by s. 11 [a provision corresponding to the current s. 257] to make the
determination and pursuant to s. 96 it is only the Board that may make
this determination.

…

[17] There may be cases where the court’s function of
answering the ultimate issue of a statute bar will require findings beyond
those matters over which the Board has exclusive jurisdiction …. [W]here the
issue, as here, is based solely on a determination of the employer/employee
relationship, this court’s function will be limited to pronouncing the legal
result of the Board’s determination.

[339]    
In the s. 257 certificate, Vice-Chairman Morton was aware of the
responsibilities of the court when he stated:

[12]      The court determines
the effect of the certificate on the legal action (see WCAT-2007-02502,
summarized as noteworthy on the WCAT website). In Clapp v. Marcro Industries
Inc., 2007 BCSC 840, Parrett J. reasoned:

36 it is for the
court to control its process and to determine the effect of the certificate,
once it is issued and filed, on the legal proceedings in this court. It is,
with respect, not a part of WCAT’s jurisdiction under the Act to
determine if an action commenced in this court is statute barred although that
may be the end result of the findings they are empowered to make.

37 The process in
this court encompasses, in my view, not simply a determination of costs in the
proceedings which have taken place, but also the possibility that the WCAT
findings and certificate does not dispose of the whole of the issues raised in
the action brought in this court. These issues, and others, are properly within
the jurisdiction of this court to be determined.

38 In my view, even actions determined by the
findings under s. 257 are subject to a final decision of the court as to the
effect of the certificate. In these circumstances it is perhaps inaccurate and
unwise to refer to the underlying action as being a nullity or as being void ab
initio.

[340]    
Madam Justice Wedge in Hommel v. Cook, 2005 BCSC 658, stated at
para. 29:

Section 257 merely describes the
procedure by which a party to the action or the court, on its own motion, may
refer a question to WCAT once a civil action is commenced. The court remains
the master of its own procedure, and, having received a ruling from WCAT, is
the entity that ultimately decides whether to stay the civil action in light of
that ruling. Nevertheless, the court is clearly bound by whatever determinations
WCAT makes under s. 257.

[341]     At the
time of the accident, the plaintiffs were workers pursuant to Part 1 of the WCA.
WCAT found that the plaintiffs’ injuries arose during the course of their
employment as this was the only way, as found by WCAT that they could perform
their work for such modest pay.

[342]     Sunshine
was found by WCAT as an employer engaged in an industry within the meaning of
Part 1 of the WCA.

[343]     On the
evening of the accident, Annie was a worker as defined by Part 1 of the WCA
as she performed the same duties as the plaintiffs did in restocking the
chickens.

[344]     WCAT found
that Annie’s breach of duty of care (when Annie was driving) did not arise in the
course of her employment. It found that Annie was transporting the workers as a
favour to her grandfather and her aunt, she received no payment or
reimbursement for driving the workers, the vehicle that she drove was mainly
for personal use, it was not used or owned by Sunshine, and Annie was not
normally employed at the farm, nor did she live there.

[345]     Mrs.
Browne was found not to be a worker in relation to the events that occurred on
November 16 and 17, 2007, despite being a worker as a bank employee. Her
activities in consenting and authorizing Annie to drive her vehicle was to
assist her sister and father and she was found not to be a worker in the course
of her employment.

[346]    
The defendants state in their written submissions:

Similarly, the Workers
Compensation Board has determined that the Defendants Adrianna Browne and Mrs.
Browne were both workers within the meaning of the Act at the time of
the accident. The WCAT has determined that Adrianna Browne, although a worker
employed by Sunshine Eggs Inc., was not acting in the course and scope of her
employment, within the meaning of the Act, when the accident occurred.
The question becomes whether the Plaintiffs’ claim is barred by section 10(1)
in all of these circumstances. Section 10(2) provides that where the cause of
injury is such that an action lies against some person, other than an employer
or worker within the scope of this part, the worker or dependent may claim
compensation or bring an action. It should be noted that on the determination
of WCAT the Brownes were both workers within the scope of part 1 of the Act
when the accident occurred.

[347]     This is
incorrectly stated as it relates to Mrs. Browne. Though found to be a worker as
it relates to her employment as a bank manager, she was found not to be a
worker in relation to the events that occurred on November 16 and 17, 2007. It
was found that the alleged breach of duty of care did not arise in the course
of Mrs. Browne’s employment. (Paragraphs 8, 9, and 10 of the s. 257
certificates.)

[348]     To suggest
that Mrs. Browne’s employment as a worker at the bank would shield her from
liability pursuant to s. 10(1) of the WCA is nonsense. This would mean
that no matter what she was doing, her status as a worker at the bank would
shield her from all liability.

[349]     The
defendants argue that s. 10(1) of the WCA should bar the plaintiff’s
claims. It is not disputed that within Part 1 of the WCA, the plaintiffs
were workers, Sunshine was an employer, and Annie was a worker. The motor
vehicle accident for which Annie breached her duty of care did not arise in the
course of her employment.

[350]    
By breaking down s. 10(1), provides the test as to whether the
plaintiffs’ claims are barred.

The provisions of this Part are
in lieu of any right and rights of action, … founded on a breach of duty of
care … to which a worker, … is or may be entitled against the employer of the
worker, or against any employer within the scope of this Part, or against any
worker, in respect of any personal injury, …arising out of and in the course of
employment and no action in respect of it lies. This provision applies only
when the action or conduct of the employer, the employer’s servant or agent or
the worker, which caused the breach of duty arose out of and in the course of
employment within the scope of this Part.

[351]    
The words of Mr. Justice Hollinrake in Hoschka v. Nijjar, 2002
BCCA 256, provides the answer to the interpretation of s. 10(1) and (2) of the WCA:

[22]      In the case before us
Amrik has been found to be a "worker" within the Act and Devinder has
been found to be a worker whose "action or conduct … which caused the
breach of duty arose out of and in the course of his employment." This
latter finding triggers the first sentence in s. 10(1) which bars "any
right … to which a worker … is or may be entitled … against any worker,
in respect of any personal injury …". That is to say, Devinder having
been found to be a worker and within the course of his employment and being the
one who caused the breach of duty, any action of the appellant against Amrik, a
worker within the Act, is barred by s. 10(1) of the Act as a matter of statutory
interpretation and precedent.

[352]     In this
case though Annie was a worker, her breach of duty to the plaintiffs and her
negligence did not arise out of the course of her employment within the scope
of Part 1 of the WCA.

[353]     I conclude
that the plaintiffs’ claims are not statute barred pursuant to s. 10(1) of the WCA.

AGENCY LAW AND THE SALMOND TEST

[354]    
During this trial there was some controversy between the plaintiffs, the
defendants and Sunshine as to whether WCAT determined whether Annie was an
agent of Sunshine. Vice-Chairman Mr. Herb Morton stated:

84.       Determinations have not
been requested concerning the action or conduct of the third parties, or of
their servants or agents. In the event any further determinations are required,
a supplemental certificate may be requested.

[355]     However,
it is not for the court to make that determination for WCAT.

[356]     The
defendants argue that but for s. 10 of the WCA, that Sunshine would at
common law be vicariously liable for the actions of Annie on the basis of the
Salmond Test. The defendants argue that if Sunshine is vicariously liable then
s. 10(7) must be considered.

[357]     The
defendants argue that the behaviour of Sunshine is that Mr. Goossen directed
Annie to transport workers when he knew that Annie was tired, was an
inexperienced driver, and that he knew Mrs. Browne had overloaded vehicles in
the past. The defendants also argue that Sunshine breached the WCA regulations
relating to the use of seatbelts in the vehicle and the operation of the vehicle
by a competent licensed driver and seating design.

[358]    
The defendants seek to make Annie an agent of Sunshine at common law. By
doing so, the defendants argue that Sunshine is vicariously liable for Annie’s
acts. Those acts are authorized or unauthorized acts. The unauthorized act is
“sufficiently related to conduct authorized by the employer to justify the
imposition of vicarious liability”: Bazley v. Curry, [1999] 2 S.C.R.
534. This is further annunciated by Madam Justice Huddart in the appeal
decision P.A.B. v. Curry, [1997] B.C.J. No. 692 (C.A.), aff’d [1999]
2 S.C.R. 534:

[23]  When the issue before the court is the scope
of employee behaviour for which an employer is to be held responsible, the
limits justice truly requires have been determined consistently by the course
of employment test, authoritatively stated in R.F.V. Heuston & R.A.
Buckley, Salmond and Heuston on the Law of Torts, 20th ed. (London: Sweet &
Maxwell, 1992) at 456-57:

A master is not responsible for a wrongful act done by his
servant unless it is done in the course of his employment. It is deemed to be
so done if it is either (1) a wrongful act authorised by the master, or (2) a
wrongful and unauthorised mode of doing some act authorised by the master.
Although there are few decisions on the point, it is clear that the master is
responsible for acts actually authorised by him: for liability would exist in
this case, even if the relation between the parties was merely one of agency,
and not one of service at all. But a master, as opposed to the employer of an
independent contractor, is liable even for acts which he has not authorised,
provided they are so connected with acts which he has authorised that they may
rightly be regarded as modes — although improper modes — of doing them. In other
words, a master is responsible not merely for what he authorises his servant to
do, but also for the way in which he does it.

[359]     The
plaintiffs Moss, Ficarini, Grierson, Moore, Bernacki and Proulx argue two
social host cases, Stewart v. Pettie, [1995] 1 S.C.R. 131 and Gouge v. Three
Top Investment Holdings Inc.(c.o.b. Windsor Park Hotel), [1994] O.J. 751. I
have read those cases and I agree with the defendants, that these cases are not
helpful.

[360]    
Sunshine referred to Randhawa v. Cowick, [1991] B.C.J. No 884.
Randhawa was an off-duty police officer at a club incorporated under the Society
Act. The club had one of the individual defendants temporarily acting as a
doorman for which he was compensated by a limited allowance for drinks. An altercation
occurred between the doorman and the plaintiff who fell down the stairs. The
society was sued. Mr. Justice Drake concluded that the relationship of master
and servant was appropriate to apply in this case. Mr. Justice Drake said the
following:

…In my view, he was more than a mere volunteer, as the club
to some slight degree recompensed him for what he did by the provision of
refreshments gratis.

 In a case of this kind, there is no difference,
so far as effect in law is concerned, between the relationship of master and
servant and that of agency. As Chief Justice Duff pointed out in Lockhart v.
Stinson & CPR, [1941] S.C.R. 278:

"If the servant commits the
wrongful act, in respect of which the master is charged, within the scope and
in the course of his agency, (in the sense in which these words are used and
understood in the law) then it is immaterial that he is acting, in fact,
against his master’s interests and for his own convenience and benefit."

 The question is whether or not Cowick was acting
within the scope of his employment when he failed in his duty of care to the
plaintiff. There are limits to the scope of an agent or servant’s employment:
if the servant’s tortious act is entirely unrelated to his employment, then no
liability therefore can attach vicariously to the master. Authorities for this
proposition are legion: see for example Lockhart v. Stinson & CPR, op.
cit., and the recent case of Miller v. Lougheed Ventures Ltd., [1990] B.C.J.
No. 737 (C.A.011749).

 In this case, Cowick’s tort was not unrelated to
his employment as doorman of the club for the evening in question. His
negligence was the sort of thing which could foreseeably happen, given the
small size of the landing and the position of the stairs leading to the club
premises; unfortunately in this instance, the consequences of this foreseeable
misfortune were serious.

 The club’s exposure to liability, then, is
established, prima facie, by its relationship to Cowick, the Occupier’s
Liability Act and the common law. But whether or not liability attaches in the
circumstances here, is another matter.

 To say that an
occupier’s duty of care to patrons of its premises, members of the club in this
instance, extends so far as a positive requirement that it guard against
accidents which it is in the circumstances powerless to prevent, seems to me to
carry the extent of its duty to impossible lengths.

[361]     The other
case cited by Sunshine is Penney v. Fort Nelson Hotel Ltd., [1988]
B.C.J. No. 2506, Vancouver Registry No. C866153. This is a situation where a
fight broke out between patrons in which the plaintiff was injured. The
plaintiff’s case was dismissed because Mr. Justice Legg found that the fight
broke out so quickly, with such little warning to those staff in attendance, that
they were not in a position to prevent it occurring and was not reasonably
foreseeable.

[362]     I found
that Annie drove carelessly, too fast and, by doing so, lost control of the
pickup truck. Annie was negligent. It was admitted that Annie was comfortable
driving the pickup truck. The cause of the accident was Annie’s negligence, not
breaches of the WCA regulations.

[363]     I also
found earlier in these reasons, based on an answer given by Annie in an
examination for discovery, that she stated that she was not tired at the time
of the accident. I also found in these reasons that despite the N license, that
Annie had a great deal of experience and was very familiar with the road on
which the accident occurred.

[364]     The
defendants’ argument in applying the Salmond Test presumed that Annie was an
agent of Sunshine.

[365]     In order
for Annie to be an agent for Sunshine, there must have been a legal obligation
between Sunshine and Annie. The only legal obligation between Sunshine and
Annie, was that Annie worked with the chickens at the farm and Sunshine was
legally obligated to pay Annie $30 for her work.

[366]     Annie was
under no legal obligation to Sunshine to transport the workers on the day of
the accident. Annie was a volunteer who volunteered to drive the workers to and
from the farm at the request of her aunt, Ms. Ebl. Earlier in the day, before
picking up the workers, Annie was trying to reach her mother by telephone
because she did not want to drive the workers. She did not reach her mother.
She made no attempt to contact either Mr. Goossen or Ms. Ebl.

[367]     I cannot
find that Annie of common law was an agent for Sunshine, making Sunshine
vicariously liable for Annie’s actions.

COSTS

[368]     Each of
the plaintiffs will have their costs, party/party Appendix B, Scale B and their
reasonable disbursements.

[369]     Several of
the plaintiffs were represented by common counsel. Each plaintiff will have a
separate bill of costs, but with this direction to the registrar, that there
will be no duplication of items as a result of plaintiffs being represented by
the same counsel.

SUMMARY

[370]     I
summarize as follows:

1.     The
defendant, Adrianna Lee Brown was negligent on November 17, 2006, and that her
negligence caused the accident in which the plaintiffs were injured;

2.     Debra Lee
Browne is vicariously liable for the negligence of her daughter, Adrianna Lee
Brown pursuant to s. 86 of the MVA;

3.     None of
the plaintiffs were contributorily negligent when they rode in the pickup truck
owned by the defendant, Debra Lee Browne and operated by Adrianna Lee Brown;

4.     Sunshine
eggs did not cause or contribute to the accident in which the plaintiffs were
injured; and

5.    
The plaintiffs’ claims are not barred by s. 10(1) of the WCA.

‘H.C.
Hyslop J.”

HYSLOP J.