Rushton v. Nova Scotia (Registrar of Motor Vehicles)

Rushton v. Nova Scotia (Registrar of Motor Vehicles) Court Court of Appeal Date 1994-01-24 Citation 1994 NSCA 43 Docket CAC 02885 Judge/Registrar/Adjudicator Hallett, J. Doane (Honourable Justice) (CA); Matthews, Kenneth M., (Honourable Justice); Pugsley, Ronald N. (Honourable Justice) Document Type Decision Decision Content C.A.C. No. 02885 NOVA SCOTIA COURT OF APPEAL Cite as: Rushton v. Nova Scotia (Registrar of Motor Vehicles), 1994 NSCA 43 Hallett, Matthews and Pugsley, JJ.A. BETWEEN: EVELYN RUSHTON W. Dale Dunlop ) for the Appellant Appellant ) ) - and - ) ) Christopher C. Robinson ) for the Respondent SYED M. ALI, Registrar of Motor Vehicles ) ) Respondent ) Appeal Heard: ) January 21, 1994 ) ) ) Judgment Delivered: ) January 24, 1994 ) ) ) ) ) ) ) ) THE COURT: Appeal dismissed without costs per reasons for judgment of Matthews, J.A.; Hallett and Pugsley, JJ.A. concurring. MATTHEWS, J.A.: The issue on this appeal is whether the trial judge erred in law in interpreting s. 256 (5)(b) of the Motor Vehicle Act as it applied to the facts of this case. This action arises as a result of a pedestrian/motor vehicle accident which allegedly occurred at about 4:50 p.m. on October 3, 1988, in the vehicle parking area of Scotia Square, Halifax. Not knowing the identify of the owner or operator of the vehicle which struck her the plaintiff/appellant took action against the respondent, the Registrar of Motor Vehicles for this province. The appellant did not institute her action against the Registrar until August 15, 1991, well after the prescription period had expired. On an application by the appellant for an order disallowing the prescription time limit defence, that is, that no action shall be brought under the Act after the expiry of one year from the date on which the cause of action arose, Justice Davison of the Supreme Court allowed the application, saying in part: "Finally, I would note that, in weighing the prejudice to each party, the plaintiff would suffer the ultimate prejudice in that the action would be lost. On the other hand, by virtue of s. 256(5)(b), the defendant would suffer little, if any, prejudice by a dismissal of this application. Section 256(5)(b) reads: 256(5) If, on the trial for action brought under this Section, the court is satisfied: (a) ... (b) that all reasonable efforts have been made to ascertain the identify of the motor vehicle and of the owner and driver thereof; (c) ... (d) ... the court may order the entry against the Registrar of any judgment for damages that it might have ordered against the owner or driver of the motor vehicle in an action by the plaintiff. Thus, before judgment can be entered the plaintiff must prove fulfilment of the same process which the defendant says was not available to it by reason of the plaintiff's delay i.e. that all reasonable steps were taken to identify the driver of the vehicle. It seems to me this statutory requirement affords the defendant all of the protection it claims it lost because of the lapse of time. Indeed, the burden of meeting the requirement under s. 256(5)(b) is on the plaintiff where as the burden of proving a defence under the Limitations of Actions Act was on the defendant. I find that the prejudice to the plaintiff in allowing the limitation defence is much greater than the prejudice caused to the defendant by striking the defence. The relevant portion of the defence is struck." The action then proceeded before Justice Saunders on a preliminary issue, as requested by appellant's counsel. That issue is, as put by the trial judge: "The Registrar now argues that the plaintiff's claim should be dismissed because she did not take all reasonable steps to identify the motorist who injured her." After citing s. 256(5)(b) the trial judge said: "The burden is upon the plaintiff on a balance of probabilities to show she made all reasonable efforts to ascertain the identity of the vehicle and its owner and operator." The appellant made no effort to ascertain the identify of the motor vehicle, or the owner or driver thereof beyond walking with a friend, around the parking area of Scotia Square the day after the accident. The trial judge later remarked: "Despite considerable sympathy for the plaintiff's situation I have concluded that her action against the Registrar fails. The language in the Motor Vehicle Act is clear. The provisions state 'all reasonable efforts'. It does not say 'some effort'. Rather, the legislature has chosen its words carefully. The phrase is 'all reasonable efforts'. Nor does it say the victim must 'expend every conceivable effort'. That implies to me this question - are the steps or actions taken, when considered objectively, all that one would expect of a reasonable person who had suffered a loss and wished to assert a claim? With the greatest of respect, Mrs. Rushton did not meet such a standard." The trial judge properly directed his attention to the statutory burden upon the appellant under s. 256(5)(b) "so that the proper tortfeasor could be joined in the action". That burden is logical. If it were not imposed, then a claimant could refrain from expending such reasonable efforts and at trial in a suit against the Registrar simply allege negligence on the part of the unknown tortfeasor content that he or she would not be met with evidence to the contrary. After reciting the minimal effort expended by the appellant to "ascertain the identify of the motor vehicle and of the owner and driver thereof and considering some of the applicable law the trial judge commented: "In conclusion, it does not appear as though the plaintiff made any reasonable effort to ascertain the identify of this vehicle or its driver beyond simply walking around the levels of the parkade the next day with a friend. No notices were posted within the parking lot. No advertisements were placed in a local newspaper. No effort was made to contact the Halifax Police Department. There was no attempt by the motorist to avoid detection. I conclude that the plaintiff's actions, limited as they were, fall far short of the statutory obligation required by the Motor Vehicle Act. For all of these reasons Mrs. Rushton's claim against the Registrar is dismissed." To simply walk around the parking area the day after the accident and do nothing further to meet the burden of ascertaining the identity of the motor vehicle, its owner or driver is not sufficient to satisfy the requirements of the Act. The appellant cannot take refuge in the position that any further effort in this respect would be futile. See Re Beaulieu [1974] 2 W.W.R. 62 (Man. Q.B.); Dyer v. Registrar of Motor Vehicles (1959) W.W.R. 365 (Man. Q.B.); Lovett v. Registrar of Motor Vehicles 4 N.S.R. (2d) 670 and the cases cited therein. We have read the record, the factums of counsel and heard the submissions of appellant's counsel. It is our unanimous opinion that the trial judge did not err in reaching his conclusion that the appellant had not satisfied him "that all reasonable efforts have been made to ascertain the identify of the motor vehicle and of the owner and driver thereof". The appeal is dismissed without costs. J.A. Concurred in: Hallett, J.A. Pugsley, J.A. C.A. No. 02885 NOVA SCOTIA COURT OF APPEAL BETWEEN: EVELYN RUSHTON ) Appellant ) - and - ) REASONS FOR ) JUDGMENT BY: SYED M. ALI, Registrar of Motor ) Vehicles ) ) MATTHEWS, ) J.A. Respondent ) ) ) ) ) ) )