Cases

SCC Case Information

Summary

34189

Annapolis County District School Board, et al. v. Johnathan Lee Marshall, represented by his Guardian, Vaughan Caldwell

(Nova Scotia) (Civil) (By Leave)

Keywords

Appeals.

Summary

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch) for information purposes only.

Appeals – Judgments and Orders – Jury Trial – Charge to the jury – New trial ordered due to misdirection by trial judge – Torts – Motor Vehicles - Negligence – Standard of care – No contributory negligence by minor – Bus driver hitting child who ran across highway – Whether driver was negligent – Whether appellate court erred in declining to make a finding of liability against the School Board and Mr. Feener rather than order a new trial – Whether the School Board and Mr. Feener should be held liable due to Mr. Feener’s admissions at trial and the reverse onus provisions of the Motor Vehicle Act, R.S.N.S. 1989, c. 293 (the “Act”).

Four year old Johnathan Marshall was playing with his two older brothers outside their home located along a highway when he was struck by a bus driven by the applicant Mr. Feener. Mr. Feener was driving his empty school bus on his way to pick up high school children. As the bus approached the home, Johnathan ran onto the highway and into its path. Mr. Feener braked immediately upon seeing the boy but Johnathan was struck, suffering serious injuries. Upon attaining the age of 19, Johnathan, through his litigation guardian, commenced an action against Mr. Feener and his employer, the applicant School Board. The applicants commenced third party claims against Johnathan’s parents, and the claim against his mother remains outstanding.

A jury found that there was no negligence on the part of Mr. Feener that caused or contributed to the damages suffered by Johnathan. The Supreme Court of Nova Scotia, Trial Division dismissed Johnathan’s action. The respondent appealed, alleging various errors by the trial judge in his charge to the jury. The Nova Scotia Court of Appeal allowed the appeal, finding certain references by the trial judge relating to the pedestrian and vehicle rights of way set out in s. 125 of the Act to be a misdirection constituting a reversible error of law. The appellate court ordered a new trial. The parties have applied for leave to appeal and to cross-appeal.