Jaegli Enterprises v. Taylor, [1981] 2 SCR 2

SUPREME COURT OF CANADA

Jaegli Enterprises v. Taylor, [1981] 2 S.C.R. 2

Date: 1981-06-22

Jaegli Enterprises Limited (Defendant-Respondent) Appellant;

and

Paul Ankenman (Defendant-Respondent) Appellant;

and

Teresa Taylor, by her guardian ad litem, Jim Taylor and the said Jim Taylor, and Deborah Taylor (Plaintiffs-Appellants) Respondents;

and

Her Majesty The Queen in right of the Province of British Columbia, The

Honourable the Minister of the Department of Recreation and Travel Industry, Grace McCarthy, and Herb Green (Defendants-Respondents).

1981: May 22; 1981: June 22.

Present: Dickson, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Torts — Negligence — Appeal from the Court of Appeal's overturning trial decision and finding respondents liable.

Courts — Appellate court overturning decision at trial and finding respondents liable for negligence — No palpable error at trial — Interpretation of evidence as a whole in issue.

Teresa Taylor was seriously injured during a ski lesson by a skier (LaCasse) who came over the crest of a knoll and accidentally collided with her. Through her parents, she sued LaCasse for skiing out of control, the instructor (Ankenman) for negligence in conducting the ski lesson and his employer (Jaegli Enterprises Limited), and other defendants as owners and occupiers of the ski hill for negligence in permitting a danger or trap to exist where plaintiff was injured. At trial, LaCasse was found solely responsible; he subsequently abandoned an appeal. Plaintiffs' appeal from the dismissal of the action against the other defendants was allowed with respect to Ankenman and Jaegli Enterprises Limited but dismissed against the other defendants. Ankenman and

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Jaegli Enterprises Limited appealed with leave to this Court.

Held: The appeal should be allowed.

It was wrong for an appellate court to set aside a trial judgment where there was not palpable and overriding error, and the only point at issue was the interpretation of the evidence as a whole. It could not be said that the trial judge was plainly wrong in finding as a fact that Ankenman was not negligent.

Schreiber Brothers Limited v. Currie Products Lim­ited and Gulf Oil Canada Limited, [1980] 2 S.C.R. 78; Stein v. "Kathy K.", [1976] 2 S.C.R. 802; Lewis v. Todd, [1980] 2 S.C.R. 694; (1980), 115 D.L.R. (3d) 257, referred to.

APPEAL from a judgment of the Court of Appeal for British Columbia[1], allowing an appeal from the judgment of Meredith J. dismissing the action as against some of the defendants. Appeal allowed.

L. G. Finch and J. A. Hardy, for the appellant Jaegli Enterprises Limited.

Harvey Grey, Q.C., and Chris Hinkson, for the appellant Paul Ankenman.

B. W. F. McLoughlin, Q.C., and J. G. Tollestrup for the respondents Teresa Taylor, by her guardian ad litem Jim Taylor and the said Jim Taylor, and Deborah Taylor.

The judgment of the Court was delivered by

DICKSON J.—On April 8, 1976 Teresa Taylor and a friend were taking a ski lesson from Paul Ankenman on the slopes of Gibson Pass, in Man­ning Park, British Columbia when Larry LaCasse came over the crest of a knoll and accidentally collided with her, causing her grievous injuries. Through her parents she sued LaCasse for skiing out of control, Ankenman for negligence in conducting the ski lesson, Jaegli Enterprises as An­kenman's employer, and other defendants as occupiers and operators of the ski hill for negligence

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in permitting a danger or trap to exist where Teresa was injured. At the end of a nine-day trial Mr. Justice Meredith, the presiding judge, deliv­ered a judgment in which he very carefully con­sidered all of the evidence and concluded that the accident had been caused solely by Larry LaCasse and that the plaintiffs should recover damages, in an amount to be assessed, against LaCasse. The claims against Paul Ankenman, Jaegli Enterprises Limited and the other defendants were dismissed with costs. LaCasse appealed but abandoned his appeal. The plaintiffs appealed the dismissal of the action against the other defendants. The appeal was allowed (Seaton and MacDonald JJ.A., Craig J.A. dissenting) against Paul Ankenman and Jaegli Enterprises Limited and liability appor­tioned against them jointly and severally to the extent of twenty per cent. The appeal against the other defendants was dismissed. The present appeal is brought, with leave of this Court, by Jaegli Enterprises Limited and Paul Ankenman from the order of the Court of Appeal for British Columbia.

We are all of the opinion that the appeal should be allowed. We would adopt the reasons of Mr. Justice Craig on appeal. Mr. Justice Craig referred to several judgments of this Court includ­ing Schreiber Brothers Limited v. Currie Products Limited and Gulf Oil Canada Limited[2] (pro­nounced March 27, 1980) and Stein v. "Kathy K."[3] (to which might now be added Lewis v. Todd[4] for the proposition that it is wrong for an appellate court to set aside a trial judgment where there is not palpable and overriding error, and the only point at issue is the interpretation of the evidence as a whole. Mr. Justice Craig concluded:

Although I do not necessarily subscribe to everything the trial Judge said in this case, I am, having regard to these statements of authority, unable to say that the trial Judge was plainly wrong in finding as a fact that the respondent Ankenman was not negligent.

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We agree.

The appeal should be allowed. The judgment of the Court of Appeal for British Columbia should be set aside in so far as it apportions liability to the respondent Paul Ankenman and through him, to his employer, Jaegli Enterprises Limited. The judgment at trial should be restored. In the cir­cumstances of the case there should be no costs to any party in this Court or in the Court of Appeal.

Appeal allowed.

Solicitors for the appellant Jaegli Enterprises Limited: Guild, Yale & Co., Vancouver.

Solicitors for the appellant Paul Ankenman: Harper, Grey & Co., Vancouver.

Solicitors for the respondents Teresa Taylor, by her guardian ad litem Jim Taylor and the said Jim Taylor, and Deborah Taylor: Lawrence & Shaw, Vancouver.

Solicitors for the defendants at trial Her Majesty The Queen in right of the Province of British Columbia, The Honourable the Minister of the Department of Recreation and Travel Industry, Grace McCarthy, and Herb Green: Ladner, Downs, Vancouver.