C.A. No. 113979
NOVA SCOTIA COURT OF APPEAL
Cite as: Hirtle v. MacArthur, 1995 NSCA 166
Clarke, C.J.N.S., Matthews and Chipman, JJ.A.
IN THE MATTER OF AN APPLICATION by Judgment Recovery (N.S.) Ltd. pursuant to Section 216 of the Motor Vehicle Act 1989, c. 293 as amended to determine whether Canadian General Insurance Company or Judgment Recovery (N.S.) Ltd. is obligated to respond to the claims of the Plaintiff:
AND IN THE MATTER OF:
KAREN HIRTLE ) John MacL. Rogers
) Virve Sandstrom
) for Canadian General
Appellant ) Insurance Company
)
- and - ) David Graves
) for Judgment Recovery
) (N.S.) Ltd.
)
) Hugh MacIsaac
) for Karen Hirtle
)
) R. Malcolm MacLeod
) Jeffrey Hunt
) for Wawanesa Mutual
) Insurance Company
)
NEIL CHARLES MACARTHUR, )
STEVEN LEE MACLEAN and WAWANESA )
MUTUAL INSURANCE COMPANY )
)
Respondents ) Appeal Heard:
) September 14, 1995
)
)
) Judgment Delivered:
) September 14, 1995
)
THE COURT: Appeal dismissed with costs to each of the respondents in the amount of $1000.00 together with the disbursements of each on appeal per oral reasons for judgment of Matthews, J.A.; Clarke, C.J.N.S. and Chipman, J.A. concurring.
The reasons for judgment of the Court were delivered orally by:
MATTHEWS, J.A.:
Karen Hirtle, while a pedestrian, was injured when struck by a motor vehicle owned by the respondent, Neil Charles MacArthur. His son, Charles Bruce MacArthur, had obtained permission to operate the vehicle from his mother, Isabel MacArthur. At the time of the accident the vehicle was operated by Stephen Lee MacLean, who had been given permission to drive by Bruce.
The MacArthur vehicle was insured by Canadian General Insurance Company. It filed a defence to the action brought by Karen Hirtle pleading, in part, that MacLean did not operate the vehicle with the consent of the owner.
Pursuant to s. 216 of the Motor Vehicle Act, R.S.N.S. 1989, c. 293, (the Act) Judgment Recovery (N.S.) Ltd. applied to determine whether or not Canadian General is obligated to respond to Karen Hirtle's claim.
The issue before the Chambers judge was not to determine liability, it was to determine who now must respond to the claim of Karen Hirtle by defending her action, either Canadian General or Judgment Recovery. The resolution of the application does not determine the issue of liability in any aspect.
The application was heard by a Supreme Court justice in Chambers on June 27, 1994. The Chambers judge, inter alia, found that MacLean was operating the vehicle with the consent of the owner. He ordered that Canadian General on behalf of Neil Charles MacArthur and Steven Lee MacLean must respond to the claim of Karen Hirtle.
In what he termed as "the alternative", the Chambers judge, pursuant to s.
249 of the Act, held that Canadian General must, on behalf of the owner, respond to the claim.
Canadian General now appeals from that decision alleging several errors on the part of the Chambers judge.
It argues that the Chambers judge erred in placing the onus of proof in the application upon the appellant. At a pre-trial conference another Supreme Court justice ruled that the onus was upon the appellant. Although the Chambers judge, in his decision, referred to the rulings of the pre-trial judge, a study of that decision clearly discloses that he did not reach his conclusions based upon an application of the onus, but upon credibility and findings of fact.
We dismiss this ground of appeal.
The major thrust on appeal, as it was on the application, centres upon the issue of consent: did MacLean have the consent of the owner to operate the motor vehicle? After hearing extensive testimony on this issue, the Chambers judge made several definitive findings of fact before determining that indeed MacLean did have the implied consent of the owner. It is interesting that the appellant did not call Mrs. MacLean to testify although it was she who gave permission to Bruce to operate the vehicle that night. Determination of consent to drive is a finding of fact. Findings of fact must stand unless there was palpable and overriding error on the part of the Chambers judge. This is the more so, when, as here, findings of fact were based wholly or partly upon credibility. See among others, Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351; Bank of Montreal v. Bail Ltée, [1992] 2 S.C.R. 554 and Pax Management Ltd. v. CIBC, [1992] 2 S.C.R. 998.
Although the Chambers judge discussed the application of s. 249 of the Act, he expressed it as an alternative ruling in respect to the issue of the potential liability of the owner and Bruce. No mention is made of s. 249 in the Order. His discussion of s. 249 is dicta, not necessary for his finding that Canadian General must respond to the claim of Karen Hirtle.
With respect, there is no merit to the other grounds of appeal.
We dismiss the appeal with costs to each of the respondents in the amount of $1000.00 together with the disbursements of each on appeal.
J.A.
Concurred in:
Clarke, C.J.N.S.
Chipman, J.A.
C.A. No. 113979
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
KAREN HIRTLE
)
Appellant )
- and - ) REASONS
) FOR
) JUDGMENT
NEIL CHARLES MACARTHUR ) BY:
STEVEN LEE MACLEAN ) MATTHEWS,
and WAWANESA MUTUAL ) J.A.
INSURANCE COMPANY )
)
Respondents )
)