NOVA SCOTIA COURT OF APPEAL
Citation: Collins v. Queen Elizabeth II Health Sciences Centre,
2009 NSCA 52
Date: 20090522
Docket: CA 303926
Registry: Halifax
Between:
Christian Collins
Appellant
v.
The Queen Elizabeth II Health Sciences Centre (Capital
District Health Authority), a body corporate, and
Halifax Regional School Board, a body corporate, and
Halifax Regional Municipality, a body corporate
Respondents
Judges: Saunders, Oland and Fichaud, JJ.A.
Appeal Heard: May 21, 2009, in Halifax, Nova Scotia
Held: Appeal dismissed per reasons for judgment of Saunders, J.A.; Oland and Fichaud, JJ.A. concurring.
Counsel: Wayne A. Bacchus, for the appellant
Cheryl A. Canning, for the respondent the Halifax Regional School Board
Karen E. MacDonald, for the respondent Halifax, Regional Municipality
Reasons for judgment:
[1] After considering counsels’ submissions we recessed and then returned to Court to announce our unanimous decision that the appeal ought to be dismissed, with costs to the respondents, for reasons to follow. These are our reasons.
[2] The appellant appeals the unreported decision of Nova Scotia Supreme Court Justice Suzanne M. Hood rendered orally November 4, 2008 (S.H. No. 255504) and confirmatory orders of the same date, awarding summary judgment to the respondents, thereby dismissing the appellant’s lawsuit against the Municipality and the Board. The appellant had previously withdrawn his action against the QE II Health Sciences Centre.
[3] Mr. Collins claims to have been injured at approximately 11:00 p.m. on November 6, 2003, as his foot caught in a plastic snow fence which had fallen down and was lying on the spot where he had decided to cross, when walking from the parking lot of Queen Elizabeth High School to the nearby hospital where he worked.
[4] We see no error on the part of the Chambers judge. Justice Hood correctly articulated and applied the two-stage test for summary judgment. Young v. Meery, 2009 NSCA 47. The appellant has failed to persuade us that in allowing summary judgment, Hood, J. erred in law resulting in an injustice: see Frank v. Purdy Estate (1995), 142 N.S.R. (2d) 50 (C.A.).
[5] In our opinion the Chambers judge was correct in concluding that there was no arguable issue of material fact requiring trial, and that the appellant’s claim had no real chance of success. Here, to establish liability on the part of the respondents, Mr. Collins would have to prove that the acts or omissions of either or both respondents caused this mishap which led to his injury and resulting damages. That prospect is condemned to failure by the appellant’s account of what happened.
[6] By the appellant’s own admission, he pulled into the QEH parking lot, as was his custom, and as soon as he parked his car he could see that the plastic snow fence was lying down across the gravel path. The appellant observed other people walking across the fallen fence. The area was well lit. He decided to take that same route.
[7] Justice Hood was satisfied that Mr. Collins knew the fence was there, was aware that it had fallen down, and that he made a conscious decision to step over it rather than follow the path he customarily took on other nights when the fence had been standing upright. These unchallenged and uncontradicted facts are all contained in the appellant’s discovery evidence, and fully support Hood, J.’s decision that Mr. Collins’ own actions broke the chain of causation. His testimony at discovery established that he assessed the situation while still sitting in his car in the parking lot, and after observing that the fence was down and that other individuals were walking across it. He concluded, according to his evidence “Why go the other way when I don’t have to?”
[8] On the basis of this uncontradicted evidence, we see no error on the part of the Chambers judge in deciding that the effective cause of the appellant’s injuries was his decision, freely made, to cross over the fallen fence, rather than taking the alternate route he had used on previous occasions, without incident.
[9] Accordingly, there were no material issues of fact meriting a trial, and the appellant’s claim had no prospect of success.
[10] We would dismiss the appeal with costs of $1,000 including disbursements payable to each of the respondents.
Saunders, J.A.
Concurred in:
Oland, J.A.