Court of Appeal for Ontario

Citation: Gaylor-King v. McElwain, 2012 ONCA 405

Date: 2012-06-12

Docket: C53072

Before: Doherty, Juriansz and Ducharme JJ.A.

Between:

Glenn Gaylor-King

Plaintiff (Appellant)

and

John David McElwain

Defendant (Respondent in Appeal)

Counsel:

Howard Smith, for the plaintiff (appellant)

David S. Young and Reheleh Pourkhodayar, for the defendant (respondent in appeal)

Heard: June 11, 2012

On appeal from the judgment of Justice Lack of the Superior Court of Justice, sitting with a jury, dated November 26, 2010.

APPEAL BOOK ENDORSEMENT

[1] We will deal with the issues in a reverse order. We agree with the trial judge’s analysis of s. 10 of Regulation 804 (Motorized Snow Vehicles Act). The appellant was “on a highway” regardless of whether he was on the paved portion or the shoulder of the highway. These references to “roadway” in s. 10, a differently defined term, do not assist the appellant. The section on its plain meaning applies to snowmobiles “on a highway”.

[2] The trial judge properly instructed the jury in respect of its determination of the negligence of the respondent should it find that the appellant was in breach of s. 10: see Walker v. Brownlee, 1952 (SCC), [1952] 2 D.L.R. 450 at para. 49.

[3] The admissibility of the marijuana related evidence is open to dispute, but we need not resolve that question. The jury, having been properly instructed on the respondent’s potential negligence, found that the respondent was not negligent. The marijuana related evidence, if admissible, was relevant to the appellant’s potential contributory negligence in the operation of the vehicle. The jury, given their determination that the respondent was not negligent, would not have reached that question of the appellant’s contributory negligence.

[4] The appellant abandoned the other grounds of appeal.

[5] The appeal is dismissed. The respondent is entitled to costs fixed at $9,000, inclusive of disbursements and applicable taxes.