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CIVIL PROCEDURE - Summary judgments - Availability

Tuesday, August 06, 2019 @ 12:11 PM  


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Appeal by the defendants, Sullivan and New Brunswick, from summary judgment in favour of the plaintiff, Benoit. The plaintiff was a passenger in a vehicle driven by her husband that collided with a school bus owned and operated by the defendants. The collision occurred at an intersection. The bus stopped at a two-way stop sign. An oncoming motorist turning left waved the bus to proceed through the intersection. The bus was halfway through the intersection when it collided with the vehicle containing the plaintiff. There was no stop sign governing the plaintiff's direction of travel. Sullivan was convicted of a provincial traffic offence in connection with the collision. The plaintiff brought a civil action for damages and sought summary judgment. The motion judge found no defence to the action and granted summary judgment on the issue of liability. The defendants appealed.

HELD: Appeal dismissed. The motion judge did not wrongly apply the summary judgment Rule. The judge's determination that the sole conclusion available on the evidence was that the defendants were wholly liable was supported by the evidence and entitled to deference. The judge's determination was based on the whole of the evidence rather than simply the traffic offence conviction for failing to yield the right of way. In respect of the judge's treatment of the traffic conviction, the judge properly found no fresh evidence that conclusively impeached the conviction. It would have been an abuse of process to relitigate the right of way issue. The fact that the summary judgment ruling did not cover a second action filed by the plaintiff's husband did not give rise to a risk of inconsistent findings.

Sullivan v. Benoit, [2019] N.B.J. No. 172, New Brunswick Court of Appeal, M.E.L. Larlee, K.A. Quigg and B.L. Baird JJ.A., June 27, 2019. Digest No. TLD-August52019002