Central Amusement Company v. Landzaat

Central Amusement Company v. Landzaat Court Court of Appeal Date 2001-03-20 Citation 2001 NSCA 50 Docket CA 167358 Judge/Registrar/Adjudicator Bateman, Nancy J. (Honourable Justice) (CA); Glube, Constance R. (Honourable Chief Justice) (CA); Saunders, Jamie W. S. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Central Amusement Company v. Landzaat - 2001 NSCA 50 - 2001-03-20 - Library Sheet Decision Content Date: 20010320 Docket: CA 167358 NOVA SCOTIA COURT OF APPEAL [Cite as: Central Amusement Company v. Landzaat, 2001 NSCA 50] Glube, Bateman and Saunders, JJ.A. BETWEEN: CENTRAL AMUSEMENT COMPANY LIMITED and ALONZO KEAY Appellants - and - SADIE MARGARET (“PEGGY”) LANDZAAT and DALE JOSEPH GAUDET Respondents REASONS FOR JUDGMENT Counsel: Jean McKenna for the appellants R. Malcolm MacLeod, Q.C. and Paul E. Morris for the respondent Gaudet in his capacity as respondent respondent Landzaat not appearing Ray E. O’Blenis for the respondent Gaudet in capacity as plaintiff Appeal Heard: March 20, 2001 Judgment Delivered: March 20, 2001 THE COURT: Appeal dismissed per oral reasons for judgment of Saunders, J.A.; Glube, C.J.N.S. and Bateman, J.A. concurring. SAUNDERS, J.A.: (Orally) [1] This is an appeal from an apportionment of liability made by Justice Douglas L. MacLellan after a two day trial restricted to an assessment of fault for a motor vehicle collision that occurred in the parking lot of the Highland Square Mall in New Glasgow on April 28th, 1997. [2] On the day of the mishap, Dale Gaudet was operating a 1988 Dodge Aries K car. Accompanying him as a front seat passenger was Peggy Landzaat. Alonzo Keay was operating a 1997 Dodge Ram truck, leased at the time by the corporate appellant, Central Amusement Company Limited. Mr. Keay is a principal shareholder and employee of the company. Each driver accused the other of negligence in having caused the accident. [3] Both Dale Gaudet and Peggy Landzaat initiated proceedings by suing Mr. Keay and his company for damages. Those actions were consolidated for trial to determine liability only, with an assessment of damages to follow. As Ms. Landzaat was a passenger she was unaffected by Justice MacLellan’s decision on liability. She testified at the trial as a witness and is not participating as a party to this appeal. [4] In a decision filed September 26th, 2000, Justice MacLellan apportioned 100 per cent of liability for this mishap to the (defendants) appellants Alonzo Keay and Central Amusement. [5] The issue, simply put, is whether MacLellan, J. erred in finding the appellants fully liable for the collision and any damages or injuries suffered by the respondents as a consequence. [6] It is not our function to substitute our view for what would appear to be a more plausible explanation for the accident. Nor is it our task to retry the case based on what we believe to be, arguably, more probable facts. Rather, as Ritchie, J. said in Stein v. The Ship “Kathy K”, [1976] 2 S.C.R. 802, our role is limited to only reversing the trial judgment if it were established that he made some palpable and overriding error which affected his assessment. [7] Having reviewed the extensive record and considered the written and oral arguments of counsel it is our unanimous opinion that there was sufficient evidence before the trial judge to support all of the findings of fact he made, and the critical conclusions he reached. We have not been persuaded that he made any error in law in the interpretation and application of the relevant provisions of the Motor Vehicle Act, the conclusions with respect to causation and negligence, or the determination that Mr. Keay was entirely to blame for the accident. Nor are we satisfied that the trial judge proceeded upon any wrong or mistaken legal principles or committed manifest error. We find no cause to intervene. [8] Accordingly, the appeal is dismissed. The respondents are entitled to recover from the appellants their costs of today which we fix at $1,500 plus disbursements on appeal as agreed or to be taxed. Saunders, J.A. Concurred in: Glube, C.J.N.S. Bateman, J.A.