The Breach of a Statutory Provision Does Not Determine Negligence
2018.07.04 //
Tiffany P.K. Tsang and Callan W. MacKinlay
In cases such as motor vehicle accident claims, it is tempting for parties (and even courts) to infer negligence from a breach of a statutory regulation; however, we are reminded in the recent case of Haynes v. Haynes, 2017 BCCA 131 that the factual matrix and evidence of surrounding circumstances ultimately determines liability. A regulatory breach is just one element of that factual matrix. Fundamentally, the plaintiff still bears the burden of proving a breach of the common law standard of care, notwithstanding the presence of a regulatory breach by the defendant. That breach alone will not suffice to prove negligence.
The Supreme Court of Canada has provided a starting point to any analysis involving a regulatory breach, or lack thereof, and a finding of negligence. In Ryan v Victoria (City),[1] (“Ryan”) Mr. Justice Major, speaking for the Court , said that “courts have implicitly recognized that statutory compliance cannot replace the common law standard of care, and can be accepted as a substitute for that standard only in certain circumstances.”[2] Compliance or non-compliance with the regulation is not definitive.
In The Queen (Can) v Saskatchewan Wheat Pool,[3] (“Wheat Pool”), the Court held that statutory breaches do not automatically give rise to civil liability. Mr. Justice Dickson, for the Court, said that a “[b]reach of statute, where it has an effect upon civil liability, should be considered in the context of the general law of negligence.”[4] A breach of a statutory standard can be evidence of negligence, but was not definitive proof of it.
The law has since developed regarding breaches of statutory standards and the extent to which they can be considered evidence of negligence.[5] The preferred approach in such cases is to examine the statutory provision in question and assess whether the party’s conduct breached that provision such that it can be used as evidence of their negligence.
Haynes
Treating a statutory breach alone as sufficient evidence of negligence is reviewable on appeal.[6] Such was the case in Haynes.
Background
There, the plaintiff passenger, Buddy Haynes, brought a personal injury action against his father, the defendant, Arthur Brian Haynes, following a single motor vehicle accident in which the occupants of a vehicle hauling a trailer and travelling on the Yellowhead Highway in the interior of British Columbia “felt a wobble” and whipping “from side to side” followed by an impact with a curb before the vehicle left the highway over an embankment. Road conditions were dry and smooth, and the available evidence was that the elder Haynes was travelling at a speed lower than the posted speed limit.
No expert evidence was adduced, but the defendant hypothesized that the collision was caused by a flat tire on the trailer. A flat tire was found by police at the scene. The Defendant argued that the collision could have occurred as a result of the flat tire without the negligence of the elder Haynes.
At trial, the plaintiff argued that the defendant had breached s. 7.07(3) of the Motor Vehicle Act Regulations,[7] (the “Regulations”) as follows:
(3) no person shall drive or operate on a highway any combination of vehicles if any vehicle being towed whips or swerves unreasonably or otherwise fails substantially to follow the path of the towing vehicle.
As a result of this alleged breach, the plaintiff argued that he had established a prima facie case of negligence against the defendant. The trial judge found that the defendant had only provided a “speculative” explanation (the “flat tire” theory) of how the accident might have occurred without his negligence.[8]
The trial judge agreed with the plaintiff, stating that he had established a prima facie case of negligence against the defendant due to the defendant driving a combination of vehicles which “whips” or “swerves” unreasonably in contravention of the Regulation. The trial judge shifted the evidentiary burden to the defendant which he failed to satisfy without an adequate explanation for how the accident might have occurred without his negligence.
The Decision
Establishing a Prima Facie Case
In allowing the appeal, the honourable Madam Justice Newbury, writing for a unanimous court, held that the trial judge had failed to examine the apparent regulatory breach of the defendant within the broader factual context and had inappropriately concluded that the plaintiff had established a prima facie case of negligence against the defendant. Newbury J.A., citing Fontaine v British Columbia (Official Administrator),[9] (“Fontaine”) observed that the trial judge had correctly determined that a presumption of negligence does not exist merely because a vehicle drives off the road.[10] However, Newbury J.A. pointed out that the trial judge had failed to quote the further proposition from Fontaine, that “whether an inference of negligence can be drawn is highly dependent upon the circumstances of each case” and that “[t]he position of the appellant would virtually subject the defendant to strict liability in cases such as the present one”.[11] Newbury J.A. further outlined that in Fontaine, the court determined that even if a prima facie case of negligence had been established, the defendant had provided several explanations grounded in evidence which put the onus of proving the case back on the plaintiff.[12]
Newbury J.A. also cited two other cases that the trial judge had referred to. Newbury J.A. pointed out that the case of Singleton v Morris,[13] stands for the proposition that “[a] defence of explanation… is an explanation of how an accident may have occurred without the defendant’s negligence. The defendant does not bear the onus of proving how the accident did happen.”[14] In Nason v Nunes,[15] the Court held that where negligence has not been proven or a defendant shows that he drove with reasonable care, the defendant must succeed, although:
[t]his is not to suggest that an inference may not be drawn as a matter of fact in a particular case, where a vehicle leaves the road or a driver loses control; but … such an inference will be “highly dependant on the facts” of the case and the explanation required to rebut it will “vary in accordance with the strength of the inference sought to be drawn by the plaintiff.”[16]The decision clarifies the analysis to be undertaken by a finder of fact. Explanations must not be “speculative”. They should be “reasonable” and grounded in the facts of the case.[17] Explanations can be more than barely speculative if they put forward reasonable alternatives that might have occurred in the circumstances in which the accident arose. Defence counsel should point to some piece of evidence which could be used to support an explanation which would provide an alternative theory for how the accident occurred without the defendant’s negligence. The amount of evidence needed to support the defence’s theory will vary with the amount of evidence the plaintiff has to support their theory. If the explanation is considered sufficient, the onus switches to the plaintiff to prove that the plaintiff’s theory is correct on a balance of probabilities.
In Haynes, the Court concluded that the defendant had provided a sufficient explanation for the wobble to switch the onus to the plaintiff. The flat tire as causation was supported by evidence of a flat tire found on the vehicle after the accident. While the court agreed that the theory was based on an inference, it was no more unreasonable than the inferences required to support the theory of the plaintiff.[18] In the result, the plaintiff had failed to satisfy his burden to prove a breach of the common law standard of care, even in the face of the apparent regulatory breach.
The Alleged Statutory Breach
Speaking specifically with regard to the argument that a breach of s. 7.07(3) of the Regulations constituted sufficient evidence for a prima facie case of negligence, Newbury J.A. stated that “the imposition of liability in negligence by virtue of a breach of the regulation would effectively amount to an application of strict liability”, and that Ryan stands for the proposition that “a statutory breach does not automatically give rise to civil liability.”[19] Further, Newbury J.A. outlined that no legislative provisions existed which stated that the breach of the Regulations constituted negligence. If anything, s. 7.07(3) appeared to have the intention of ensuring that when a vehicle begins “whipping” or “swerving unreasonably”, its driver should make every effort to get off the road or stop, which the defendant had done.[20]
As a result, the Court concluded that the plaintiff had failed to establish negligence for several reasons. Firstly, the plaintiff had failed to prove that the defendant had breached s. 7.07(3) of the Regulations.[21] Secondly, if the plaintiff had proven that the defendant had breached s. 7.07(3) of the Regulations, there was no reason to conclude that such a contravention constituted evidence sufficient to establish a prima facie case of negligence against the defendant.[22] Finally, if the plaintiff had proven that the defendant had breached s. 7.07(3) of the Regulations, and that breach did constitute evidence sufficient to establish a prima facie case of negligence against the defendant, the defendant had provided suitable “explanations” to place the onus back onto the plaintiff to prove the facts as he argued them.[23] As a result, the court allowed the appeal and set aside the order of the trial judge.
Conclusion
The existence of a statutory provision or regulation which pertains to the case at bar can be very useful to the courts in some circumstances. Often, they provide good evidence of reasonable conduct in the circumstances. However, counsel should be wary of assuming that compliance or non-compliance with a provision or regulation is sufficient evidence for establishing the negligence of a party, or even a prima facie case of negligence. As always, the standard of care will be determined based on the common law of negligence and the facts of the case at bar.
[1] [1999] 1 SCR 201, 168 DLR (4th) 513 [Ryan]. [2] Ibid, para 35. [3] [1983] 1 SCR 205, 143 DLR (3d) 9 [Wheat Pool]. [4] Ibid, at 225. [5] For example, see Bergen v Guliker, 2015 BCCA 283. [6] For example, see Borgford v Boizard, 2016 BCCA 317. [7] BC Reg 26/58 [Regulations]. [8] Haynes, supra, at para 23. [9] [1998] 1 SCR 424, 156 DLR (4th) 577 [Fontaine]. [10] Haynes, supra, at para 12. [11] Fontaine, at para 35. [12] Haynes, supra, at paras 12-13. [13] 2010 BCCA 48. [14] Haynes, supra, at para 14. [15] 2008 BCCA 203. [16] Haynes, supra, at para 14. [17] Ibid, at para 24. [18] Ibid. [19] Ibid, at para 25. [20] Ibid, at para 26. [21] Ibid. [22] Ibid, at para 25. [23] Ibid, at para 24.