McMillan v. Pawluk et al., [1976] 2 SCR 789

Supreme Court of Canada

McMillan v. Pawluk et al., [1976] 2 S.C.R. 789

Date: 1975-10-07

Massie M. McMillan Appellant;

and

William Pawluk Respondent;

and

John Meier and Jim’s Express & Transfer Ltd. and Other Related Actions Respondents.

1975: May 23; 1975: October 7.

Present: Martland, Ritchie, Spence, Dickson and Beetz JJ.

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Motor vehicles—Liability to passengers—Car pool arrangement—Transportation provided pursuant to mutual undertaking to repay by providing further transportation—Passengers not guests “without payment for the transportation”—The Highway Traffic Act, R.S.A. 1970, c. 169, s. 214(1).

In litigation which resulted from two motor vehicle accidents and which ultimately reached this Court, the only issue that finally remained to be determined was as to whether the three passengers in one of the vehicles involved in the second accident were deprived of any cause of action against the driver of that vehicle by reason of the provisions of s. 214(1) of The Highway Traffic Act, R.S.A. 1970, c. 169. The driver and his passengers were employed in the construction of a generating plant and each day travelled a total distance of 120 miles to and from the job site. They had entered into a car pool arrangement, whereby one person drove the others on a given day in return for being driven on successive days by each of the others in turn, along with the other members of the group.

As there was no contention that the driver was guilty of gross negligence or of wilful and wanton misconduct, the question for determination was whether the passengers were his guests “without payment for the transportation”. The Appellate Division set aside that part of the trial judgment which held that the driver had failed to meet the onus of establishing that his passengers were being transported as his guests without payment for the transportation within the meaning of s. 214(1).

Held: The appeals of the three passengers should be allowed.

The test to be applied in determining whether or not a person is a guest within the meaning of the phrase “guest without payment” is whether the purpose of the transportation is social only or whether it is in perfor-

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mance of a contractual obligation or otherwise for a commercial or business purpose. When transportation is provided pursuant to a mutual undertaking to repay by providing further transportation, as was the case here, it cannot be said to be “social only”.

Manuge v. Dominion Atlantic Railway Co., [1973] S.C.R. 232, applied.

APPEALS by the appellants Massie McMillan and Harry Sokulski from a judgment of the Supreme Court of Alberta, Appellate Division[1], confirming the judgment at trial, which had dismissed their claims in respect of damages resulting from a motor vehicle collision, and which had held McMillan to be two-thirds responsible for a second collision. Appeals dismissed at conclusion of hearing. Appeals by the appellants Anker Liboriussen, Antonius Schilder and William Pawluk from the same judgment of the Appellate Division absolving the respondent John Meier of responsibility to them by virtue of s. 214(1) of The Highway Traffic Act, R.S.A. 1970, c. 169. Appeals allowed.

Peter R. Chomicki, for the appellant, Massie McMillan.

Patrick Shewchuk, for the appellant, William Pawluk.

John A, Hustwick, for the appellants, Anker Liboriussen and Antonius Schilder.

Ernest J. Walter and Lloyd E. Malin, for the respondent, Bernard Schmidthiesler.

R.E. Hyde, Q.C., for the respondent, John Meier.

The judgment of the Court was delivered by

MARTLAND J.—On November 29, 1970, at about 7 a.m., an automobile driven by the appellant Massie McMillan, in which the appellant Harry Sokulski was a passenger, was proceeding west on a four-lane highway west of Edmonton, which is divided into two eastbound and two westbound lanes separated by a median strip. McMillan’s vehicle struck a truck owned by the respondent Jim’s Express & Transfer Ltd. and under the control of the respondent Bernard Schmidthiesler,

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which had been travelling west, and which had stopped to give aid to an automobile in the north ditch. The learned trial judge found that the truck was on the parking portion of the highway when it was struck by the McMillan car.

The truck was pushed into the ditch. The McMillan vehicle continued on the highway for some distance and came to rest at right angles to the direction in which it had been travelling, straddling the white line which separated the two westbound lanes. McMillan and Sokulski were able to leave their vehicle shortly before it was struck by an automobile operated by the respondent John Meier and which was proceeding west. The appellants Anker Liboriussen, Antonius Schilder and William Pawluk were passengers in the Meier vehicle and were injured as a result of the collision. The driver, Meier, was also injured.

The learned trial judge, after reviewing the evidence, held that McMillan was solely responsible for the first collision, between his car and the truck. He held that the second collision, between the McMillan and Meier vehicles, resulted from the negligence of both parties and he apportioned responsibility two-thirds to McMillan and one-third to Meier.

As to the three passengers in the Meier vehicle, he held that Meier’s negligence was not gross negligence, but that Meier had failed to meet the onus of establishing that they were being transported as his guests without payment for the transportation within the meaning of s. 214(1) of The Highway Traffic Act, R.S.A. 1970, c. 169, which provides:

214. (1) No person transported by the owner or driver of a motor vehicle as his guest without payment for the transportation has any cause of action for damages against the owner or driver for injury, death or loss, in case of accident, unless

(a) the accident was caused by the gross negligence or wilful and wanton misconduct of the owner or operator of the motor vehicle, and

(b) the gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.

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There had been four actions commenced in consequence of the two collisions, all of which were tried together. The learned trial judge assessed the damages of those parties entitled to recover and gave judgment in each of the four actions accordingly.

On appeal to the Appellate Division the judgments at trial were sustained, save as to the claims of the three passengers in the Meier vehicle. The majority of the Court held that Meier was entitled to the protection afforded by s. 214(1) of The Highway Traffic Act and that, as he had not been grossly negligent, their claims as against him failed. The effect of this decision was not only to prevent recovery of damages by his passengers as against Meier, but also, by virtue of s. 4 of The Contributory Negligence Act, R.S.A. 1970, c. 65, to limit the liability of McMillan to two-thirds of the damages sustained by the passengers. Johnson J.A., dissenting, would have upheld the judgment of the learned trial judge.

The appellants McMillan and Sokulski appealed to this Court from the judgment of the Appellate Division confirming the judgment at trial, which had dismissed their claims in respect of their damages resulting from the first collision, and which had held McMillan to be two-thirds responsible for the second collision. The three passengers in the Meier vehicle appealed against the judgment of the Appellate Division absolving Meier of responsibility to them by virtue of s. 214(1) of The Highway Traffic Act. No appeals were made in respect of the assessment of damages.

At the conclusion of the submissions made to the Court on behalf of the appellants McMillan and Sokulski, the Court announced that it was not prepared to disturb the findings of fact made at trial and confirmed by the Appellate Division in relation to McMillan’s negligence, or in relation to the apportionment of his responsibility for the second accident.

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The respondent, Meier, did not challenge the apportionment, made at trial, of responsibility for the second accident.

The only issue remaining is as to whether the three passengers in Meier’s vehicle were deprived of any cause of action against him by reason of the provisions of s. 214(1) of The Highway Traffic Act. As there is no contention that Meier was guilty of gross negligence or of wilful and wanton misconduct, the question for determination is whether the passengers were his guests “without payment for the transportation”.

The facts to be considered in determining this question are set out in the judgment of Johnson J.A., as follows:

All four were tradesmen employed in the construction of a thermal electrical generating plant for the Calgary Power Company at the south side of Lake Wabamun. They all lived in Edmonton and went and returned each day a total distance, we are told, of 120 miles. They all met at a service station in the west end of the City and were driven by one of their number to the job site and returned with him in the evening. Arrangements under which these trips were made comes [sic] mainly from the evidence of the defendant, Meier. On cross-examination he was asked and gave the following explanation:

Mr. Hustwick Cross-Examines the witness:

“Q. Mr. Meier, did you have an arrangement with Mr. Schilder and Mr. Liboriussen that each of you would take turns driving your cars to the Sundance plant?

A. Yes.

Q. And was this an arrangement that would require each of you to take your car on successive days, you one day, Schilder the next and Liboriussen the next?

A. Yes.

Q. And you were all agreed that that was the manner in which you would proceed to work?

A. That’s right.”

Mr. Shewchuk Cross-Examines the witness:

“Q. Did you ever have an arrangement as my friend speaks of with Mr. Pawluk, was he part of your steady little car pool?

A. Yes he was.

Q. Did Mr. Pawluk ever pay you?

A. No.”

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With due respect for the opinions expressed in the reasons for judgment of the majority of the Appellate Division, I would adopt the reasons of Johnson J.A. on this point, which are reported in [1974] 2 W.W.R. 688 at 690 and following. Reference is made by him to the judgment of this Court in Manuge v. Dominion Atlantic Railway Company[2]. In that case it was necessary to consider the meaning of the words “guest without payment for such transportation” as they occur in s. 223(1) of the Motor Vehicle Act of Nova Scotia, R.S.N.S. 1967, c. 191. The test employed by Cooper J.A., in the Appeal Division of the Supreme Court of Nova Scotia, was adopted. It is cited at p. 239 of the reasons for judgment of this Court and is as follows:

The test to be applied in determining whether or not a person is a guest within the meaning of the phrase “guest without payment” in my opinion is whether the purpose of the transportation is social only or whether it is in performance of a contractual obligation or otherwise for a commercial or business purpose…

After quoting this passage, Johnson J.A. goes on to say:

When transportation is provided pursuant to a mutual undertaking to repay by providing further transportation, it cannot be said to be “social only”.

I would dismiss all of the appeals to this Court, with costs, except those of the appellants Liboriussen, Schilder and Pawluk. I would allow those appeals, set aside the judgment of the Appellate Division and restore the judgment at trial in respect of their claims against the respondent Meier and the appellant McMillan. These appellants should be entitled, as against those parties, to their costs in this Court and in the Appellate Division.

Appeals of the appellants McMillan and Sokulski dismissed with costs.

Appeals of the appellants Liboriussen, Schilder and Pawluk allowed with costs.

Solicitors for the appellant, Massie McMillan: Kosowan & Wachowich, Edmonton.

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Solicitors for the appellant, William Pawluk: Bassie, Shewchuk & Co., Edmonton.

Solicitors for the appellants, Anker Liboriussen and Antonius Schilder: Weeks, Joyce, Peterson, Ross & Hustwick, Edmonton.

Solicitors for the respondents, Jim’s Express & Transfer Ltd. and Bernard Schmidthiesler: Brownlee, Fryett, Walter, Stewart & Sully, Edmonton.

Solicitors for the respondent, John Meier: Newson, Hyde and A. Dubensky, Edmonton.