Case: Stevens v. Oyster Bed, 2023 PECA 7 (CanLII)

Keywords: stock car; fatal accidents; volenti non fit injuria; Fatal Accidents Act, R.S.P.E.I. 1988, C. F-5

Synopsis:

A stock car driver, Mr. Robert Stevens, dies while participating in a race at Oyster Bed Speedway in Prince Edward Island. An action is filed on behalf of Mr. Stevens’ dependants, pursuant to the Fatal Accidents Act, R.S.P.E.I. 1988, C. F-5. (Note: the word “dependant” is defined at s. 1(f) of the Act).

The Appellants, Shaw’s Towing Service (1984) Ltd. (“Shaw’s”), 101322 PEI Inc. (“Oyster Bed Speedway”), and Maritime Pro Stock Tour Ltd. (“Maritime Pro”), initiate a motion for summary judgment. They seek to terminate the dependants’ action on the basis there is no genuine issue requiring a trial. The motions judge (Clements J.) finds the Appellants’ volenti defence (i.e. voluntary assumption of risk) does not bar the claim. The Appellants appeal. The Court of Appeal (Gormley CJ.; Murphy and Laughlin JJ.) dismisses the appeal.

Importance:

The Court of Appeal provided a detailed summary of the Fatal Accidents Act and its historical development. The decision of the Court of Appeal affirms that s. 2 of the Act provides a statutory cause of action to a deceased person’s dependants – even where the deceased person was not, themselves, entitled to maintain an action or recover damages. (See para. 10; Donovan v. QCRS, 2016 PECA 1 at paras. 23-25, 27-28).

The Court of Appeal observed that, “prior to 1846 and the passage of Lord Campbell’s Act the dependants of those who died had no cause of action in relation to a death caused by a wrongful act”; and that, “[f]rom this very harsh position at common law some Legislatures saw fit to enact legislation that provided protection to dependants” in the form of a “derivative cause of action”. (See para. 10).

However, as found by the Court of Appeal in Donovan, P.E.I.’s Fatal Accidents Act “was purposefully changed from a derivative claim to legislation that created an independent claim for the dependants of the deceased.” (See para. 11; Donovan at para. 35). As outlined in FN1 of the Court’s reasons, P.E.I. is the only jurisdiction in Canada to create “an independent cause of action”, rather than a derivative claim, for dependants.

How does this affect the Appellants’ volenti defence? The Court of Appeal determined that, in P.E.I., “the traditional analysis of the duties and responsibilities between a plaintiff party and a defendant do not apply”. (See para. 25). Instead, the Fatal Accidents Act creates what the Court of Appeal called a “legal tripartite approach”, which it explained this way:

The dominant relationship is between the dependants and the wrongdoers with the factual context of the deceased’s role being reduced from its normal primacy to one of secondary importance. In other words, the legislation diminishes the deceased’s role. The importance of the behaviour of the deceased prior to death is minimized. It is contextually relevant, but the legislation clearly indicates when a death occurs, neither the deceased nor the dependants’ conduct are paramount in the same manner as in situations where the claim is derivative in nature. (See para. 25).

As a consequence, because the volenti defence focuses on the “traditional” relationship between a plaintiff and defendant, it would be inappropriate to apply “when examining an independent legislative statutory claim for the dependants of a deceased person”. (See para. 26).

Beyond this explanation, the Court of Appeal also referred to provisions in the Fatal Accidents Act which bar both a dependant and the deceased from waiving their rights by covenant or conduct. Because the Act does not permit a deceased person to consent to a wrongful act prior to their death, the Court concluded that “the volenti defence is not available to a defendant against the dependants of a deceased pursuant to the Fatal Accidents Act in Prince Edward Island”. (See para. 33).

The Court of Appeal made further, general comments regarding the viability of the volenti defence in Canada. For example, citing Crocker v. Sundance Northern Resorts Ltd., 1988 CanLII 45 (SCC) and Waldrick v. Malcolm, 1991 CanLII 71 (SCC), the Court described the volenti defence as “exceptional”, “anachronistic” and “anomalous in the age of apportionment”. (See paras. 19, 34).

In response to the Appellants’ submission that, without access to the volenti defence, “there will be a flood of claims and defendants will be left unable to defend themselves”, the Court of Appeal indicated that the Fatal Accidents Act still requires there to be a wrongful act; proof of a causal connection between the wrongdoer and the deceased; and that the wrongdoer failed to exercise “reasonable skill or care” towards the deceased. (See para. 25).

Ultimately, the Court of Appeal determined that the Legislature knowingly made the choice to create a non-derivative statutory cause of action for dependants and that this choice was available to the Legislature. (See para. 35).

Counsel for 101322 P.E.I. Inc.: Ryan McCarville and Duncan Sturz (McInnes Cooper, Charlottetown)

Counsel for Shaw’s Towing Service (1984) Ltd.: Steven Forbes and Christiana Tweedy (Cox & Palmer, Charlottetown)

Counsel for Sharon Stevens in her own name and as Personal Representative of the Estate of Robert Michael Russell Stevens: Virginia Gilmore

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