COURT OF APPEAL FOR ONTARIO
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 SCC minicounsel 126, [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."
