What is the RATIO DECINDENDI for Rowe v. Canning?

1991 ST. J. NO. 0925 IN THE SUPREME COURT OF NEWFOUNDLAND TRIAL DIVISION BETWEEN: BRYAN ROWE (GOODYEAR) AND WAYNE FUREY PLAINTIFFS AND: BOYD CANNING AND RENEE CANNING DEFENDANTS Heard: November 24 and December 3, 1993, January 19 and April 7, 1994. Decided: April 12, 1994. (NEGLIGENCE - ROAMING LIVESTOCK - HORSE CAUSING MOTORCYCLE ACCIDENT - VALIDITY OF MUNICIPAL REGULATIONS WHERE PUBLICATION IN QUESTION) DECISION OF L.D. BARRY, J.

Prince the pony slipped its bridle and went exploring, on the first day Renee Canning brought it home as a present for his grandchildren. While Prince was at large, Rowe and Furey fell off their motorcycle, when a horse ran suddenly in front of them, near the Cannings' home. Rowe and Furey claim Prince was the perpetrator and now sue for damages.

1994 CanLII 4474 (NL SC) - 2 -

THE FACTS

On June 27, 1990, Rowe and Furey were riding Rowe's motorcycle in a westerly direction along the Conception Bay Highway, in the Town of Conception Bay South. The driver, Rowe, heard a warning shouted by Furey, who was seated behind him, and almost simultaneously saw a horse running at full gallop from the side of the highway towards the motorcycle. Rowe and Furey said the left side of the motorcycle hit the horse's right front quarter and neck. The bike fell over, spilling Rowe and Furey to the roadway. The horse kept running across the highway and down Perrins Road, in Conception Bay South. After Rowe and Furey had picked themselves up and called the police, they saw Boyd Canning leading a horse along the highway and down Perrins Road. Rowe and Fury identified the horse as the one which had run across the road. Boyd Canning testified that on June 27th his father, Renee Canning, brought home Prince, a small ten year old horse, about the size of a Newfoundland Pony, which Renee had purchased the previous Christmas for Boyd Canning's children. Prince had been stabled by its previous owner from Christmas until the day of the accident. Boyd Canning said he had earlier that day fastened the bridle, which was on Prince upon arrival, to a rope affixed to a steel peg 1994 CanLII 4474 (NL SC) - 3 - in the ground. When Boyd Canning arrived home later, around the time of the accident, he found Prince's bridle still attached to the rope, but Prince had disappeared from the unfenced property. His father informed him Prince had slipped the bridle. Canning went looking for the horse and found Prince on a parking lot by a store on the Conception Bay Highway, not far from the intersection with Perrins Road where the accident occurred. Canning said he saw no indication on Prince of having been hit by a motorcycle. Kimberly Greenslade, Steven Batten and Juanita Breen testified they had been walking together along the Conception Bay Highway towards St. John's, when they noticed a horse "dart" across the highway and run down Perrins Road. They all were of the opinion that the horse was a full grown horse. When shown a photo of the pony owned by the Cannings, all three said the horse on the highway was larger. The records of the Department of Municipal Affairs show that regulations prohibiting the roaming of animals, were made by the Town of Conception Bay South and approved by the Minister on March 18, 1975. The Plaintiffs could not provide conclusive evidence, however, that these regulations had ever been posted for publication as required by the relevant legislation, because the 1994 CanLII 4474 (NL SC) - 4 - minutes of Town Council meetings were not available for the period prior to 1977.

THE ISSUES Three issues arise:

(1) Was Prince the horse involved in the accident? (2) If the horse was Prince, are the Cannings liable in negligence either (a) for breach of a duty created by municipal regulations or (b) for breach of a duty at common law? (3) Was Brian Furey keeping a proper lookout, while driving his motorcycle?

STATUTORY PROVISIONS AND REGULATIONS

The Livestock Act, R.S.N. 1990, c. L-20, provides: 6. The minister may by order prohibit the running at large of a class of livestock within an area specified in the order. 7. An owner shall not permit ... a stallion over the age of 1 year ... to run at large without the written consent of the minister. 8.(1) The owner of livestock shall be liable 1994 CanLII 4474 (NL SC) - 5 - for damages caused by that livestock to property. ... (3) Nothing in this section affects the liability of an owner of livestock where the livestock is involved in a collision with a motor vehicle. The Town of Conception Bay South (Impounding of Animals) Regulations, 1975, approved by the Minister March 18, 1975, provided: 2. No person shall permit any animal of which he is the owner or guardian to roam at large in any street, road, or lane within the Town or in any open field or common from which free access can be had to such street, road, or lane. 4. All owners or guardians shall maintain a proper fence on their property so as to prohibit their animals from roaming at large. The Local Government Act, Stats. Nfld. 1972, No. 32, provided: 99.(1) Subject to the approval of the Minister, the council may make regulations (e) p r o h i b i t i n g . . . t h e running at large ... of animals ... providing for the impounding of such animals ... (6) Regulations made under subsection (1) or (2) shall be made public by poster erected in such places as the council may direct and shall not have effect until they are so posted. 1994 CanLII 4474 (NL SC) - 6 -

ANALYSIS

1. Identification of Horse Rowe was certain that the horse he saw leaving the scene with Boyd Canning was the horse which ran across the road. He described the horse involved in the accident as a horse "a bit bigger than a pony, almost like a riding horse", and a mixture of light and dark brown in colour, with a dark mane. This accurately described Prince, shown in a photograph later tendered by Canning. One difference was the mane, which Rowe described as dark black, when it is in fact dark brown. Furey's description, while less precise than Rowe's, also adequately described Prince. I prefer the testimony of Rowe and Furey to that of Greenslade, Batten and Breen. Rowe and Furey were closer to the animal which ran across the road. Also, there was some uncertainty in the evidence of the three bystanders, who, like Rowe and Furey, only had seconds to view the horse. Greenslade estimated that she was 50 to 100 feet away from the animal but indicated she was not sure of the distance. Batten, who was with Greenslade and Breen, estimated the distance at 300 to 400 feet. Breen estimated the distance at 75 feet but admitted she was not good at judging distances. Neither Greenslade nor Batten were able to describe the colour of the horse. Breen said she thought it was brown but she wasn't sure. While each thought it was a full grown horse they had 1994 CanLII 4474 (NL SC) - 7 - seen, they had difficulty describing its height. Kimberly Greenslade stated she thought the horse was as tall as she was. Batten estimated that the back of the horse he saw would be about up to his chin. They both denied the horse shown on the photo was large enough to be the one they saw. But they could not estimate the height of the horse in the photo. Breen said merely that the horse she saw was not as tall as her. Batten testified that the horse was galloping. Breen said it was moving between a slow walk and a run. Greenslade said it was running. These three witnesses also were of the opinion that the horse had not hit the motorcycle, because the horse kept going and did not make any sound. Counsel for the Cannings submits that, if the motorcycle hit the horse, as alleged by Rowe and Furey, there would have to be marks on the horse. He says that, since there were no marks on Prince, this supports the premise there was a second horse. Juanita Breen testified that, in her twenty-three years in the area, this was the only time she had seen a horse roaming free along the Highway in Conception Bay South. Even without her testimony I believe I could take judicial notice this was an 1994 CanLII 4474 (NL SC) - 8 - unusual occurrence on a busy highway. It would be an extraordinary and highly improbable coincidence for there to be another horse, in addition to Prince, roaming free at that exact time, in that same area, with that exact colour. I am satisfied from the testimony of Rowe and Furey it was Prince which ran across the road. Rowe and Furey were closer to the animal than other witnesses and their evidence was more precise. I also accept the testimony of Rowe and Furey that their motorcycle hit the horse a glancing blow. I do not believe I should find that there was another horse running free at the time, merely because there were no signs of injury on Prince. This can be explained by the glancing blow. I find that Greenslade, Batten and Breen, who had discussed the incident amongst themselves, arrived at an erroneous conclusion as to the size of the horse they saw, probably because of the short time it was in view, their distance from the horse, and their lack of any references against which to measure the size from that distance. 2. Negligence of Cannings (a) Statutory Duty Although the Canning's horse was named "Prince", not "Princess", I conclude this is insufficient evidence upon which to base a conclusion that Prince was a stallion. Neither was there 1994 CanLII 4474 (NL SC) - 9 - any evidence of an order by the Minister under the Livestock Act, prohibiting the running at large of horses in the area. I am, therefore, unable to find that the Livestock Act is applicable. There is, however, a statutory duty to prevent roaming animals, created by the Town of Conception Bay South (Impounding of Animals) Regulations, 1975 . Section 2 of the Regulations is applicable. I do not accept the interpretation of Counsel for the Cannings that "permit" in that section should be interpreted as not applying to a person who has, as in the present case, attempted to keep an animal tied up. My interpretation of the section is that, if an owner improperly or inadequately ties up an animal so as to allow that animal to escape, then that owner has "permitted" the animal to roam at large. Also, in any event, the Cannings were also in breach of section 4 of the Regulations, which required that they maintain a proper fence on their property so as to prohibit Prince from roaming at large. I am satisfied I should treat the 1975 Regulations as having been properly posted. The person who was Town Manager in 1975 set out in an affidavit that, while he has no specific recollection of 1994 CanLII 4474 (NL SC) - 10 - the creation and implementation of the Regulations, the practice was to post regulations after they were returned with the Minister's approval. He deposed: ... given that the subject Regulations were prepared, passed by the Town Council of the Town of Conception Bay South, submitted to the Minister for his approval, I feel that they were posted in the Town Office in the same fashion as all other Regulations that had to be posted to give them force and effect, following their return from the office of the Minister of Municipal Affairs. I conclude there is sufficient evidence in this affidavit of the former Town Manager to permit me to draw the inference that, on a balance of probabilities, all things concerning posting, required by the legislation, have been done. At the very least, this evidence shifted the evidentiary burden and required the Defendants to bring forward evidence which would raise a doubt as to whether the Town had properly posted the Regulations. This the Cannings have not done. There is no evidence at all that the Regulations were not properly posted and in effect. Even if there had been no evidence from which an inference of posting could have been drawn, there is authority supporting the proposition that, in circumstances such as the present, the initial onus is on the Defendants to prove that the Regulations were not properly posted. In R. v. Pay-N-Save Drugs Ltd. (1960), 128 C.C.C. 425 (Man. C.A.), the Court confirmed the decision of a Magistrate, 1994 CanLII 4474 (NL SC) - 11 - who had held that the onus was on the accused to prove the Early Closing By-Law of the City of Winnipeg was invalid. The accused was questioning whether the By-Law had been advertised in accordance with the Shops Regulation Act, R.S.M. 1954, c. 242. See also, Rogers, The Law of Canadian Municipal Corporations (2d ed., updated to 1994), at pp. 463-4. (b) Duty at Common Law In this case, even in the absence of applicable municipal regulations, one would have to consider whether there is a duty at common law on the owner of a horse to prevent that animal from roaming onto a busy highway and causing an accident. It should be foreseeable to an owner that, if a horse breaks loose, it is likely to cause such accidents. In those circumstances would it not be a breach of a common law duty for the owner of a horse to inadequately tie an animal and, thereby, allow the animal to get free? In Searle v,. Wallbank, [1947] A.C. 341 (H.L.), the House of Lords held that an owner of a field had no obligation to prevent his animals from straying upon an adjacent highway. The Supreme Court of Canada refused to follow this approach and held, in Fleming v,. Atkinson, [1959] S.C.R. 513, that the historical basis for the rule in Searle, dependent as it was on the peculiarities of 1994 CanLII 4474 (NL SC) - 12 - highway dedication in England, where highways had come into being by adjoining owners giving only a right of passage to the public, had never existed in Ontario. The Court held that the ordinary rules of negligence applied to the case of straying animals and that regard should be had to all the circumstances, including the nature of the highway and the amount and nature of the traffic upon it. The development of Newfoundland highways may not have occurred in the same way as those in Ontario, where, for the most part, the fee was always in the Crown. However, in Eales v. James (1977), 17 Nfld. & P.E.I.R. 242 (Nfld. Dist. Ct.), McCarthy D.C.J. held that, since highways in this Province are vested in the Province or in municipalities, the law of Newfoundland can also be distinguished from the law of England. He applied Fleming and held the rule of Searle inapplicable in Newfoundland. I have been given no reason why I should not take the same approach. I find that, even if the Regulations of the Town were not in effect, there was a common law duty upon the Cannings to prevent Prince from roaming upon the busy Conception Bay Highway, where the volume of traffic meant an accident would be likely. 1994 CanLII 4474 (NL SC) - 13 - (c) Breach of Duty Boyd Canning says he merely tied Prince on by means of the bridle, which was already on the horse's head when his father brought Prince home. There is no evidence that his father was not involved in placing the bridle on the animal. Even if the bridle had been placed on Prince by the previous owner, the Cannings had a duty to ensure that the bridle was secure enough to hold, when Prince was tied on in the field. In the circumstances I must find that the Cannings were in breach of duty and negligent and are liable to Rowe and Furey for their damages in an amount to be assessed. 3. Contributory negligence Counsel for the Cannings submits that, because Furey saw the horse on the side of the road, before it came upon the pavement, therefore Rowe could not have been keeping a proper lookout if he only saw the horse just at the moment of collision. I do not find this submission at all convincing. I accept the evidence of Rowe and Fury that they were travelling within the speed limit at the time. I also accept their evidence that Rowe was driving in a responsible and prudent fashion. Furey's evidence is that the horse was at full gallop when he first saw it proceeding from the side of the highway. The fact that Rowe saw the horse a second or 1994 CanLII 4474 (NL SC) - 14 - so after Furey is no evidence that he was not keeping a proper lookout. As driver, Rowe had a responsibility to maintain a proper lookout on the road ahead, while also remaining reasonably alert for hazards entering from the side. Furey, as passenger, had the luxury of ignoring the road ahead, if he wished, and maintaining his gaze upon the side of the road. It is not strange, therefore, that he may have seen the horse a few seconds before Rowe. I find Rowe was keeping a proper lookout. There was no contributory negligence on his part.

SUMMARY AND DISPOSITION 1

. Boyd Canning and Renee Canning are liable to Bryan Rowe (formerly known as Bryan Rowe Goodyear) and Wayne Furey for their damages in an amount to be assessed. 2. Rowe and Furey have leave to apply for an assessment of damages. 3. Rowe and Furey are entitled to their costs, to be taxed.

JUSTICE TO: Robert Regular, Solicitor for Bryan Rowe and Wayne Furey. TO: Raymond Fahey, Solicitor for Boyd Canning and Renee Canning.