DATE: 20010518

DOCKET: C33569

COURT OF APPEAL FOR ONTARIO

RE:

TYSON UDO DAVID, DIANE ELIZABETH DAVID, UDO DAVID and DIANA LYNN DAVID (Plaintiffs/Appellants) –and– BILL CHIVERS-WILSON (Defendant/Respondent)

BEFORE:

FINLAYSON, CARTHY and CHARRON JJ.A.

COUNSEL:

Peter M. White, for the appellants

Gregory R. Birston, for the respondent

HEARD:

May 10, 2001

RELEASED ORALLY:

May 10, 2001

On appeal from the judgment of Justice John F. McCartney dated December 21, 1999.

E N D O R S E M E N T

[1] The appellant argues that the trial judge did not address the position of the plaintiff that the defendant’s vehicle and trailer were parked contrary to s. 170 of the Highway Traffic Act, R.S.O., 1990, c. H.8 and were not illuminated, contrary to s. 62 of the Highway Traffic Act.

[2] It is not at all clear whether these sections are applicable to the defendant’s vehicles but, in any event, it is apparent from the trial judge’s findings that the plaintiff had ample opportunity to see the vehicles and more than enough time to avoid a collision.

[3] The accident was caused by the plaintiff in that he had alcohol in his system, was carrying a passenger on a snowmobile that could not comfortably carry a passenger, and was swerving up and down the snowbanks at a speed which the driver placed at 50 km/h.

[4] The trial judge concluded as to the plaintiff:

[T]he Plaintiff, when all the evidence is considered, was probably going down the Road and up and down the banks. Just prior to the accident, he came down the bank on the West side of the Road heading for the East bank, and that is why he did not notice the truck/trailer unit until he was about 60 feet away from it. The light on his snow machine would not have illuminated the truck/trailer unit until he was heading down the bank and in its direction. If he had merely been travelling down the roadway, at a safe speed, the lights on his snow machine would surely have picked up the truck/trailer unit, and he would have noticed it, long before it became a danger since, as I indicated before, he could have either stopped or steered around it.

[5] It is unfortunate that the trial judge embarked upon a discussion of liability that appears to presuppose negligence on the part of the defendant but, on any legal analysis, his findings of fact with respect to the plaintiff could only result in a dismissal of the action. The trial judge clearly did not think that the parking of the vehicle contributed to the accident and causation is an essential ingredient of the plaintiff’s case.

[6] Accordingly, the appeal is dismissed with costs.

(signed) “G. D. Finlayson J.A.”

(signed) “J. J. Carthy J.A.”

(signed) “Louise Charron J.A.”