MacNeill v. Briau, [1977] 2 SCR 205

Supreme Court of Canada

MacNeill v. Briau, [1977] 2 S.C.R. 205

Date: 1976-05-18

Wendell Ross MacNeill and Francis Edward Shanahan Appellants and Cross-Respondents;

and

Helene Briau Respondent and Cross-Appellant.

1976: May 18.

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

ON APPEAL FROM THE SUPREME COURT OF PRINCE EDWARD ISLAND IN BANCO

Appeal—Function of Appellate Court—Credibility of witnesses—Absence of error on part of trial judge.

APPEAL from a judgment of the Supreme Court of Prince Edward Island in banco[1] allowing an appeal from a judgment of Bell J. at trial. Appeal dismissed. Cross-appeal allowed.

David MacLeod, for the appellants and cross-respondents.

M.A. Farmer, Q.C., for the respondent and cross-appellant.

The judgment of the Court was delivered orally by

MARTLAND J.—The appeal in this case has already been dismissed with costs. It is now necessary to consider the cross-appeal.

We are all of the opinion that, in the circumstances of this case, the Court of Appeal was in error in finding the respondent to be partly responsible for the accident which caused her injuries. The issue of the case was mainly dependent upon the credibility of the witnesses on each side, and findings were made by the trial judge in favour of the respondent. In our view the Court of Appeal failed to give due weight to those findings, but, instead, elected to retry the case. It was not entitled to disturb the findings at trial unless the trial judge had made a palpable error. In our opinion he

[Page 206]

did not. The cross-appeal is allowed and the judgment of the trial judge is restored. The respondent is entitled to costs in this Court and in the Court below. The case is returned to the Supreme Court of Prince Edward Island for the assessment of damages.

Appeal dismissed with costs, cross-appeal allowed with costs, judgment at trial restored.

Solicitors for the appellants and cross-respondents: MacLeod & MacLeod, Charlottetown.

Solicitors for the respondent and cross-appellant: Farmer, Dalzell & Farmer, Charlottetown.