DATE: 20030828
DOCKET:C35587
COURT OF APPEAL FOR ONTARIO
McMURTRY C.J.O., LASKIN AND GOUDGE JJ.A.
B E T W E E N:
CAROLYN DESAUTELS AND ROBERT DESAUTELS
E. Hyer and C. Kish
for the appellants
Plaintiffs (Appellants)
B. A. Percival
for the respondents
- and -
Katimavik, OPCAN and Lise
Mercier
KATIMAVIK, OPCAN, LISE MERCIER, THE TOWN OF BEAVER LODGE, HER MAJESTY THE QUEEN AS REPRESENTED BY THE ATTORNEY GENERAL OF CANADA AND HER MAJESTY THE QUEEN AS REPRESENTED BY THE SECRETARY OF STATE
Valerie J. Anderson
and Liz Tinker
for the respondents
Her Majesty the Queen as
Represented by the Attorney
General of Canada and Her
Majesty the Queen as represented by the Secretary
of State
Defendants (Respondents)
Heard: February 4, 2003
On appeal from the judgment of Justice Margaret P. Eberhard of the Superior Court of Justice dated November 24, 2000.
GOUDGE J.A.:
[1] In the spring of 1984, Carolyn Desautels was accepted as a participant in Katimavik, a national youth volunteer program offering young Canadians the opportunity to combine useful volunteer service with personal development and discovery of their country. Katimavik was operated by OPCAN, a non-profit corporation which in turn received its funding from the federal government.
[2] In April 1985, Carolyn Desautels was coming to the end of her placement at Beaver Lodge, Alberta. Lise Mercier was the group leader for the program participants placed there.
[3] From time to time, the group planned “active leisure” events in which they all participated. One of these was a trail ride on horseback at a nearby stable, which took place on April 19, 1985.
[4] Although she was an inexperienced rider, Ms. Desautels was a keen group member and readily agreed to participate. Tragically, she fell when her horse stumbled, and she was catastrophically injured. She was 21 years old.
[5] On February 7, 1991, Carolyn Desautels and her husband sued Ms. Mercier, Katimavik, OPCAN and the federal Crown. They did not sue the operator of the trail ride and discontinued the action against the town of Beaver Lodge.
[6] On October 24, 2000, Eberhard J. dismissed the action. She held that while she was required to apply the two-year period provided by Alberta’s Limitation of Actions Act, R.S.A. 1980, c.L-15 she would exercise her discretion to relieve against this. She found that Katimavik and OPCAN were vicariously responsible for their group leader Ms. Mercier, and she also appears to have concluded that the Crown was vicariously responsible for OPCAN and Katimavik and therefore for Ms. Mercier. In addition, she concluded that each of these defendants owed a duty of care to Ms. Desautels and had breached the standard of care required of them. However, she found that none of these acts of negligence caused the accident that injured Ms. Desautels and therefore she dismissed the action.
[7] The plaintiffs appeal, arguing that the trial judge erred in her finding on causation. Ms. Mercier, Katimavik and OPCAN cross-appeal, saying that the trial judge erred in failing to find that this claim was statute-barred. The Crown also cross-appeals from the finding of liability against it.
[8] For the reasons that follow, we are unable to find reversible error in the trial judge’s disposition of causation. We must therefore dismiss the appeal.
ANALYSIS
[9] We see no error in the legal test for causation used by the trial judge. Contrary to the appellants’ assertion, she did not use an “all or nothing” approach but properly assessed whether the negligence attributable to the respondents materially contributed to Ms. Desautels’ injury.
[10] The appellants’ main attack on the causation finding of the trial judge is that she erred in failing to find that the respondents’ acts of negligence in fact materially contributed to the appellant’s injury. This is an attack on the fact-finding by the trial judge. That fact-finding is something to which we must accord significant deference and which we can reverse only on finding palpable and overriding error. See Housen v. Nikolaisen (2002), 2002 SCC 33, 211 D.L.R. (4th) 577 (S.C.C.).
[11] The appellants’ first challenge to the trial judge’s fact-finding was that she failed to conclude that the trail ride would have been cancelled if Ms. Mercier had properly applied Katimavik policies, particularly one which had temporarily suspended certain kinds of trips.
[12] We cannot agree with this argument. The temporary suspension policy related to four-day “out trips”. It did not apply to day trips like this trail ride. The trial judge concluded that had Ms. Mercier checked with her supervisors, the trail ride would still have gone ahead. We see no reason to interfere with that finding.
[13] Second, the appellants challenge the finding that the respondents’ failure to insist that Ms. Desautels wear a helmet on the trail ride was not shown to contribute to her injury.
[14] The answer to this submission is twofold. First, there was no evidence that wearing a helmet would have prevented the injury as it in fact occurred. Indeed, at the conclusion of argument the appellant sought to reopen the case to tender evidence to this effect. The trial judge refused to do so and there is no basis for us to interfere with that exercise of her discretion.
[15] More importantly, however, the trial judge found that in 1985, knowledge about riding helmets had not yet reached the point where the respondents could reasonably be expected to have required Ms. Desautels to wear one when on the trail ride. This is a finding which was entirely open to the trial judge and, though it concerns the standard of care, it is also to be accorded deference in this court. See Housen, supra.
[16] Third, the applicants argue that having found that Ms. Mercier breached her duty of care to Ms. Desautels by failing to consider in advance the safety of the proposed trail ride, the trial judge erred in finding that this was not a cause of Ms. Desautels’ injury.
[17] Again we disagree. The trial judge considered this issue and concluded that had Ms. Mercier done so and learned the specific nature of the trail ride and the facility, the activity would still have gone ahead. Moreover, as I have said, she found that there was no established standard that would have led Ms. Mercier to ensure that helmets were worn. Finally, she found that the appellants had not shown that the trail ride itself was operated negligently. Rather, the fall occurred without warning, without any prior instability, unsuitability, difficulty or non-compliance in managing the horse. These findings were all open to the trial judge on the record and there is no basis to interfere with them in this court.
[18] Finally, the appellants argue that the trial judge found that Ms. Mercier’s duty of care to Ms. Desautels extended to warning her that she need not feel compelled by peer pressure to participate in an activity with which she felt uncomfortable. The appellants say that having found that, the trial judge erred in not concluding that Ms. Mercier’s failure to do this materially contributed to the injury.
[19] In our view, this argument must also fail. While it is not as clear as the appellants suggest, we are prepared to assume that the trial judge found the applicable standard of care to encompass this warning to Ms. Desautels. What is clear is that the trial judge found Ms. Desautels to be a keen group member and a spunky young woman who did not shrink from new experiences and who, knowing the risk, readily agreed to participate in the trail ride. The trial judge concluded at para. 102:
If Lise Mercier had done everything she should, if Katimavik had done everything it should, the group would have gone riding that day anyway.
[20] In other words, the warning would not have changed anything. This finding too was entirely open to the trial judge on this record and we cannot interfere.
[21] In summary, the appellants’ attack on the trial judge’s conclusion about causation must fail. The appeal must therefore be dismissed.
[22] It is therefore unnecessary to deal with the cross-appeals and we do not do so.
[23] However, we should not be taken as agreeing with the finding of liability against the Crown. In the circumstances of this case, we are very dubious that the funding of Katimavik constitutes sufficient control to make the Crown vicariously liable or sufficiently proximate to impose a duty of care to Ms. Desautels on the Crown.
[24] Nor should we be taken to agree with the finding of the trial judge that the court can use its discretion to extend a statutory limitation period. That is the very question that was left open by the Supreme Court of Canada in Ordon Estate v. Grail, 1998 771 (SCC), [1998] 3 S.C.R. 437.
[25] The appeal must therefore be dismissed. Given the tragic circumstances, the respondents fairly and properly do not ask for costs and none are ordered.
Released: August 28, 2003 “RRM” “S.T. Goudge J.A.”
“I agree Roy McMurtry C.J.O.”
LASKIN J.A. (concurring in the result):
[26] I have had the benefit of reading my colleague Goudge J.A.’s reasons. Like him, I would uphold the trial judge’s dismissal of the action, but I would do so for different reasons.
[27] The appeal and the cross‑appeal raise these three questions:
Did the trial judge err in finding that the respondents’ acts of negligence did not cause Carolyn Desautels’ injuries?
Did the trial judge err in concluding that she could exercise her discretion to extend the limitation period under Alberta’s Limitation of Actions Act, R.S.A. 1980, c.L-15?
Did the trial judge err in concluding that the federal Crown would be liable for any negligence of Katimavik, OPCAN and Lise Mercier?
[28] Goudge J.A. concludes that the trial judge did not err in her treatment of the causation question. In his view her findings on causation are supported by the record. He therefore finds it unnecessary to deal with the second and third questions.
[29] In my view, the trial judge’s findings on the effect of Ms. Mercier’s failure to supervise are unsatisfactory and warrant appellate review. Were causation the only question on this appeal I would order a new trial. But I am also of the view that the trial judge erred in concluding that this action was not barred by s. 59(1) of Alberta’s Limitation of Actions Act. Although I agree with the trial judge that the application of s. 59(1) works an injustice for the appellants, regrettably for them, the case law in the Supreme Court of Canada and in this court stand in the way of invoking the court’s inherent discretion to extend a statutory limitation period. Because I would dismiss the appeal on the ground that the action is statute barred, like my colleague I need not address the difficult question of whether the Crown could be liable for Katimavik’s, OPCAN’s and Ms. Mercier’s negligence.
[30] Goudge J.A. has set out the relevant factual background. I will briefly discuss my conclusions on causation and the limitation period.
1. Did the trial judge err in finding that the respondents’ acts of negligence did not cause Carolyn Desautels’ injuries?
[31] To succeed in her claim, Ms. Desautels had to prove first that the respondents owed her a duty of care; second, that they breached the applicable standard of care; and third, that their conduct caused or materially contributed to her injuries. The trial judge found that Ms. Desautels met the first two components of her claim, but not the third.
[32] The trial judge found that the group leader, the respondent Lise Mercier, owed Ms. Desautels a duty of care and that she breached her duty of care because she “did not put her mind to the safety of the planned trail ride.” The trial judge found that Katimavik and OPCAN were vicariously liable for Ms. Mercier’s acts of negligence, and also breached their own duty to Ms. Desautels because, “having recognized the need for trained leadership, they insert[ed] a leader whom they [had] failed to train.” Finally, the trial judge found that the federal Crown owed a duty of care to Ms. Desautels and would be liable to her if Katimavik were liable.
[33] Thus, the success of Ms. Desautels’ claim turned on whether she could prove that the respondents’ negligence materially contributed to her injuries. The trial judge found that the trail ride itself was not operated negligently. That finding is not challenged on appeal. The trial judge also found that the respondents did not breach any duty of care in not making a riding helmet available to Ms. Desautels, and moreover, that there was no evidence that wearing a helmet would have prevented her injuries. I agree with Goudge J.A. that on the evidence it was open to the trial judge to make these findings.
[34] The critical causation issue is whether Ms. Desautels would have gone on the ride but for Ms. Mercier’s failure to fulfil her supervisory duties as group leader. In my view the trial judge did not deal adequately with Ms. Mercier’s failure to warn Ms. Desautels that she should not feel compelled to participate in the trail ride.
[35] Ms. Desautels was an inexperienced horseback rider and she was unhappy with the group’s decision to go horseback riding. The trial judge made two important and related findings about why she nonetheless decided to go on the ride. First, the trial judge recognized the peer pressure within the group and found that “[t]he group members had come to understand that failure to participate in an activity chosen by the group was a non‑compliance that could result in expulsion from the group. This had occurred already in this particular group resulting in some participants being sent home.” Second, the trial judge found that Ms. Desautels “believed she was compelled by the Katimavik program to participate in what the group decided to do.”
[36] Because of the peer pressure among this group of diverse young people who were making decisions by consensus, the trial judge recognized, in her words, that “there simply ha[d] to be a supervisor who could assess the choices, exercise some discretion and prevent situations that individuals, feeling compelled, [could] not handle.” That supervisor should have been Lise Mercier. Yet, as the trial judge found, Ms. Mercier exercised no supervision or leadership in planning the trail ride, managing peer pressure and ensuring alternative activities were available for those who did not want to go.
[37] How then did the trial judge find no causal link between Ms. Mercier’s failure to supervise and Ms. Desautels’ injuries? The trial judge gave two explanations, neither of which I consider satisfactory.
[38] First, she found that Ms. Desautels knew the risk involved in the trail ride and still readily agreed to participate:
People do choose to ride horses and everyone is inexperienced at some time. There are risks. They are obvious. Horses are big and alive and if you fall off you could hurt yourself. That is why Carolyn Desautels was nervous about it. She knew what everyone knew: a person could fall off. Knowing that risk, she readily agreed to participate. She was a spunky young woman who did not shrink from new experiences. The Katimavik program provided the means and opportunity for new experiences. That the horse stumbled and she landed and the horse rolled and she was injured in just such a way is tragic beyond words. It is not, however, the result of any negligence.
[39] Similarly, she found that Ms. Desautels did not openly object to going on the ride:
I find as a fact that none of the participants, including Carolyn Desautels, objected to going. Carolyn Desautels was known to be a keen group member and her expressed nervousness about riding a horse was accepted by all as a natural sensibility, not a reluctance.
[40] These findings, however, are untenable in the light of the trial judge’s earlier findings of peer pressure within the group and compulsion to participate in all group activities. I do not see how it can be said that Carolyn Desautels “readily” participated in an activity that she believed she was compelled to join. Peer pressure may well have stopped her from objecting to this activity.
[41] Second, the trial judge found that because the duty of care owed to recreational horseback riders in 1985 did not include providing helmets, “the failure of Lise Mercier to address her mind to the safety of the group decision to go riding was inconsequential.” The group would have gone riding that day anyway:
There is no reason whatever to conclude that if she [Lise Mercier] had known the specific nature of the ride and facility, considered safety and even checked with supervisors, that the activity would not have gone ahead. The activity was well within the range of acceptable active leisure in Canada and the safety elements in the Poole trail ride were up to every known or knowable standard. If Lise Mercier had done everything she should, if Katimavik had done everything it should, the group would have gone riding that day anyway.
It seems to me, however, that this reasoning misses the point. If Ms. Mercier had done everything she should have, including warning Ms. Desautels that she did not need to feel compelled to participate, the group might well have gone riding that day but Carolyn Desautels may have chosen not to go.
[42] I acknowledge that despite the peer pressure and the compulsion to participate a trier of fact could nonetheless conclude that Ms. Mercier’s failure to supervise did not materially contribute to Ms. Desautels’ decision to go on the ride. Still, that conclusion requires a fuller appreciation, assessment and analysis of the group dynamics in the Katimavik program than the trial judge’s reasons demonstrate. As I said at the beginning of my reasons, if causation were the only issue on this appeal I would order a new trial. In my opinion, however, the action is barred by Alberta’s Limitation of Actions Act.
2. Did the trial judge err in concluding that she could exercise her discretion to extend the limitation period under Alberta’s Limitation of Actions Act?
[43] Ms. Desautels was injured in Alberta on April 19, 1985, and brought her claim in Ontario on February 7, 1991, almost six years after the accident occurred. The applicable limitation period in Ontario is six years. Therefore, if Ontario law applied the action was not stature barred.
[44] However, under s. 59(1) of Alberta’s Limitation of Actions Act a claim must be brought within two years after the date when the injury occurred or, if a claimant is disabled when the cause of action arises, within two years from the date the claimant “ceases to be under disability.”
[45] The trial judge correctly concluded that the governing limitation was that of Alberta (where the accident occurred), not that of Ontario (where the action was started). She also found that “Carolyn Desautels was not disabled from considering necessary steps after her release from hospital in spring 1986”. Indeed, Ms. Desautels consulted a lawyer about her claim in 1988, yet nearly three years from that “demonstration of capacity” passed before her claim was issued. Accordingly, as the trial judge concluded, if the Alberta limitation period applied Ms. Desautels’ claim was statute barred.
[46] Nonetheless, the trial judge relieved against the effect of the statutory limitation period by exercising her discretion to extend the period:
For these reasons I find that the action is not statute barred because the unfair effect of application of changed rules to the case at bar compels this court to exercise discretion and extend the period to that upon which the Plaintiff had every reason to rely at the time of bringing the claim.
[47] The respondents submit that the trial judge had no discretion to extend the limitation period. I agree with that submission. I also do not think that the limitation period can be avoided by applying the law of the forum instead of the law of the place where the accident occurred.
[48] The unfairness that prompted the trial judge to exercise her discretion stemmed from the release of the Supreme Court of Canada’s judgment in Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, 1994 44 (SCC), [1994] 3 S.C.R. 1022 in 1994, three years after Ms. Desautels started her action. Until Tolofson was decided, the Supreme Court’s judgment in McLean v. Pettigrew, 1944 69 (SCC), [1945] S.C.R. 62 had directed that the applicable limitation period was that of the province where the action was started. Tolofson changed the law in two ways: first, it created a strict rule that the applicable law was that of the province where the tort occurred; and second, it decided that limitation periods were substantive, not procedural. Thus, applying Tolofson, whether Ms. Desautels brought her action in Ontario or in Alberta, the Alberta Limitation of Actions Act applied.
[49] The trial judge wanted to avoid the injustice for the appellants brought about by the changes in the law. I sympathize with her desire to do so. I am not satisfied, however, that the case law from the Supreme Court and this court permitted her to do so.
[50] In holding that the court had an inherent jurisdiction to extend a limitation period to preserve an action the trial judge relied on this court’s decisions in Ordon Estate v. Grail (1996), 1997 6321 (ON CA), 36 O.R. (3d) 643 and Dreifelds v. Burton (1998), 1998 5013 (ON CA), 38 O.R. (3d) 393, leave to appeal refused [1998] S.C.C.A. No. 261, and on the Supreme Court’s decision in Basarsky v. Quinlan, 1971 5 (SCC), [1972] S.C.R. 380. In Ordon Estate and Dreifelds, both complex maritime law cases, this court affirmed an inherent jurisdiction to extend a statutory limitation period to prevent an injustice. But the Supreme Court has not adopted this principle. Instead, in Ordon Estate v. Grail, 1998 771 (SCC), [1998] 3 S.C.R. 437 it concluded that it did not have to decide the point. Moreover, Dreifelds and Basarsky are both distinguishable from this case. In Dreifelds, Goudge J.A. writing for the court relied principally on the statutory discretion to extend a limitation period in s. 2(8) of the Family Law Act, R.S.O. 1990, c. F.3. Apart from the disability provision, which is not applicable here, the Alberta statute contains no similar statutory discretion. And in the Basarsky case, the Supreme Court held that after the expiry of a limitation period it had a discretion to add a party or a new claim to an action properly commenced within the limitation period. Again, this was not the situation here.
[51] It also seems to me that Tolofson precludes avoiding the Alberta limitation period, either by exercising an inherent jurisdiction to extend it or by exercising a discretion to apply the law of the forum instead of the law of the place of the accident. There are three reasons for this.
[52] First, the result of applying the statutory limitation period of the province where the accident occurred was as unjust to the claimants in Tolofson as it is to Carolyn and Robert Desautels in this case. In Tolofson the plaintiff, a twelve-year-old boy, was badly injured in a car accident in Saskatchewan. Eight years later he and his father brought an action for damages in British Columbia, the province where they resided. Their action was statute barred by the law of Saskatchewan, which had a one‑year limitation period, but not by the law of British Columbia. The British Columbia courts held that the law of the forum, British Columbia, applied because McLean v. Pettigrew governed and additionally British Columbia had the more significant relationship with the parties. Despite the injustice to the plaintiffs the Supreme Court reversed and held that the Saskatchewan law applied, thus barring the lawsuit.
[53] Second, La Forest J., who wrote the majority reasons in Tolofson, seemed to dismiss the possibility of invoking the court’s inherent jurisdiction to extend a limitation period to prevent an injustice, at least in interprovincial litigation. At para. 89 of his reasons he wrote:
The limitation defence has been properly pleaded in the case at bar and all parties proceeded before us on the assumption that, if Saskatchewan law applies, it is a valid defence. I do not accept that this defence is so repugnant to public policy that a British Columbia court should not apply it. The extent to which limitation statutes should go in protecting individuals against stale claims obviously involves policy considerations unrelated to the manner in which a court must carry out its functions, and the particular balance may vary from place to place. To permit the court of the forum to impose its views over those of the legislature endowed with power to determine the consequences of wrongs that take place within its jurisdiction would invite the forum shopping that is to be avoided if we are to attain the consistency of result an effective system of conflict of laws should seek to foster [emphasis added].
[54] Third, Major J., who wrote the minority concurring opinion in Tolofson, disagreed with La Forest J. only on one point: whether the court in interprovincial litigation has a discretion to depart from the lex loci delicti (law of the place of the wrong) rule to prevent an injustice. La Forest J. recognized the discretion to do so in international litigation. Major J. would have recognized a similar discretion in interprovincial litigation (though he would not have exercised it in Tolofson). Were I free to do so here I would exercise the discretion argued for by Major J.A. His view, however, attracted the support of Sopinka J. alone. The other five members of the Court did not endorse it.
[55] Following Tolofson, this court has applied La Forest J.’s majority reasoning and refused to depart from the lex loci delicti rule to prevent a plaintiff’s claim from being statute barred. For example, in Somers v. Fournier (2002), 2002 45001 (ON CA), 60 O.R. (3d) 225 (C.A.), Cronk J.A. wrote at paras. 42-44:
As Tolofson illustrates, denial of the opportunity to claim damages by reason of the expiration of a limitation period does not constitute injustice sufficient to support an exception to the lex loci delicti rule....
Ms. Somers also submits that, when the Action was commenced, prevailing Ontario law provided that the Action would be governed by the laws of Ontario (the lex fori). She asserts, therefore, that it would be unjust now to apply the lex loci delicti rule. That argument, in my view, is defeated by the Tolofson decision....
To state the obvious, the actions in Tolofson and in the companion case of Lucas were commenced years prior to the release of the Supreme Court of Canada’s decision in those cases. Nevertheless, the conflict of laws rule established by Tolofson was held to apply to the rights of the litigants in both actions.
See also Wong v. Lee (2002), 2002 44916 (ON CA), 58 O.R. (3d) 398 (C.A.).
[56] Therefore, on the existing case law I see no alternative but to hold that the Alberta statute bars the appellants’ action.
[57] I would allow both the appeal and the cross‑appeal, and would therefore uphold the trial judge’s dismissal of the action.
“John Laskin J.A.”