COURT OF APPEAL FOR ONTARIO

DATE: 20000615

DOCKET: C30828

RE: ROBERT BURNS, MARGARET BURNS, JAMES BURNS by his
Litigation Guardian MARGARET BURNS, ALDEN HALLETT,
JEANNETTE HALLETT and LOIS BURNS (Plaintiffs)
v. CANADIAN NATIONAL RAILWAY COMPANY (Defendant/
Appellant) and THE CORPORATION OF THE CITY OF
NEPEAN (Defendant/Respondent)

BEFORE: LABROSSE, ROSENBERG and MacPHERSON JJ.A.

COUNSEL: Kenneth R. Peel,
for the appellant

Mark O. Charron,
for the respondent

HEARD: June 13, 2000

On appeal from the decision of Mr. Justice H. Soublière dated
September 10, 1998

E N D O R S E M E N T

[1] The plaintiffs’ action for damages arising out of the death
of seven-year-old Jason Burns was settled and paid equally by the
parties to this appeal, Canadian National Railway (“CN”) and The
Corporation of the City of Nepean (“Nepean”). The accident took
place at a CN railway crossing in the immediate vicinity of a
pedestrian underpass in the City of Nepean.

[2] In the absence of agreement between the parties, the matter
proceeded to trial with respect to liability on the issues raised
by the cross-claim of each party against the other. Soublière J.
(“the trial judge”) granted judgment to Nepean against CN for 75%
of the settlement of the action and to CN against Nepean for 25%
of the settlement. The parties were granted their costs of the
action in the same proportion as the division of liability.

[3] Both CN and Nepean ask that the finding of liability made
against them be struck out or, in the alternative, that it be
reduced.

[4] The trial judge found that both CN and Nepean owed a duty of
care to the infant plaintiff killed in the accident and that they
failed to carry out that duty.

[5] Both parties had clear knowledge or ought to have known of
the existing danger to persons crossing the railway. The absence
of the fencing required by statute for the railway and the
inadequate fencing relating to the recreational buffer zone
adjoining the railway and the pedestrian underpass constituted a
very dangerous situation. It is difficult to understand the
inaction of both parties while facing a potential disaster
waiting to happen. They were satisfied to exchange letters and
wait for the other party to move and they failed to take
appropriate steps to ensure the safety of the citizens.

[6] The finding of the trial judge that both parties had a duty
of care, particularly to children, and that they failed to carry
out that duty, is unassailable. There was evidence that both
parties owed a duty of care as described in Kamloops (City of) v.
Nielsen, [1984] 2 S.C.R. 2. Assuming that the duty owed by CN
was that described in s. 4(1) of the Occupiers' Liability Act,
R.S.O. 1990, c. O.2, there was ample evidence that CN failed to
meet that duty to act with common humanity. As to Nepean, this
was not a policy decision as explained in Just v. The Queen,
1989 CanLII 16 (SCC), [1989] 2 S.C.R. 1228. The policy decision was to construct the
underpass. Having taken that decision, Nepean was to construct it
and the surrounding fences in a non-negligent manner. The
parties now seek a variation of the apportionment of negligence
on the same facts which were considered by the trial judge. The
trial judge saw the witnesses and heard the evidence. There was
no misapprehension of the evidence. He was in the best position
to determine the respective proportion of negligence and we see
no basis to interfere.

[7] Finally, it is not necessary to rule on the question of the
admissibility of the Transportation Safety Board’s report. Its
contents would not, in any event, change our view on the issue of
liability.

[8] Accordingly, the appeal and the cross-appeal are both
dismissed with costs.

(signed) "J. M. Labrosse J.A."

(signed) "M. Rosenberg J.A."

(signed) "J. C. MacPherson J.A."