Canadian Underwriter

Why this drunk driver couldn’t be sued by victims of a hit-and-run

February 5, 2021   by Greg Meckbach

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A Saskatchewan motorist who pleaded guilty to impaired driving cannot be sued in the province by victims of a hit-and-run accident that happened in Saskatoon a few hours before the inebriated motorist was pulled over and arrested by police. This is the result of a Supreme Court of Canada decision released Thursday.

Unlike some other provinces, Saskatchewan auto clients have almost no right to sue at-fault Saskatchewan motorists over traffic accidents. They do have a right to sue if the at-fault driver is convicted of impaired driving.

Judges couldn’t agree which applied in Quinlan v. Thomas.

Darryl and Amber Quinlan were driving in Saskatoon on Apr. 6, 2014 when their vehicle was involved in an accident with a Cadillac that left the scene.

The owner of the Cadillac, Kirby Thomas, was arrested about three hours later the same afternoon. Thomas was charged with four criminal offences and ultimately pleaded guilty to impaired driving.

Thomas’s Cadillac was the subject of multiple complaints to police Apr. 6, 2014, after people saw it being driven erratically at various times in Saskatoon. Thomas was stopped by police at about 4:00 p.m. The hit-and-run accident with the Quinlans was reported to police at 12:42 p.m.

As a result of the hit-and-run, the Quinlans filed a lawsuit against Thomas in the Saskatchewan Court of Queen’s Bench. The Quinlans sought an award for non-economic loss, also known as pain and suffering.

The judges disagreed about whether the Quinlans were in fact allowed to sue Thomas for the motor vehicle accident.

Originally in 2019, Justice Gary Meschishnick of the Saskatchewan Court of Queen’s Bench ruled that the lawsuit against Thomas could proceed. Justice Meschishnick’s ruling was overturned on appeal in 2020.

The Supreme Court of Canada announced Feb. 4, 2021 that it has turned down Darryl Quinlan’s application for leave to appeal the Saskatchewan Court of Appeal ruling. The end result is Thomas cannot be sued.

Key to the 2020 Saskatchewan Court of Appeal ruling was the fact that Thomas was arrested hours after the 2014 accident. Justice Meschishnick’s original decision relied on transcripts of a 2015 sentencing hearing.

The province’s general rule barring motor vehicle accident tort claims against motorists applies to Saskatchewan Government Insurance (SGI)’s non-fault auto insurance product, which provides relatively high first-party accident benefits compared to some of the other provinces. [A small minority of Saskatchewan motorists buy SGI’s tort option, while the vast majority choose no-fault.]

Separately, British Columbia plans to change its laws to increase accident benefits while also severely limiting claimant’s rights to sue at-fault motorists.

Saskatchewan’s Automobile Accident Insurance Act stipulates the few exceptions to the general rule prohibiting SGI no-fault clients from suing an at-fault driver. One exception includes an at-fault driver being convicted of impaired driving under the Criminal Code. No-fault SGI clients can also sue at-fault drivers who are convicted of criminally negligent driving, or if the at-fault drivers deliberately injured the plaintiffs. SGI no-fault clients can also sue defendants who are not motorists (such as bars who serve alcohol) in connection with traffic accidents.

In the case of Quinlan v. Thomas, the defendant was convicted of impaired driving. But the case was not straightforward because Thomas was arrested hours after the accident.

In the civil court proceeding, Thomas argued his conviction of impaired driving in criminal court was not related to his hit-and-run accident with the Quinlans, even though it happened the same day. Therefore, Thomas argues, the Quinlans do not have the right to sue Thomas in Saskatchewan.

For their part, the Quinlans argued that in the civil proceeding, Thomas was trying to re-litigate the facts of his impaired driving conviction.

The civil court considered transcripts from a 2015 criminal proceeding before Justice Bria Huculak of the Provincial Court of Saskatchewan.

Justice Meschishnick referred to those criminal court transcripts when he initially paved the way for the Quinlans’ lawsuit against Thomas in 2019. Meschishnick concluded that Thomas’s impaired driving conviction was based in part on the premise that Thomas was impaired at the time of the collision with the Quinlans.

In the provincial court criminal proceedings, a Crown attorney alleged Thomas had driven while impaired by alcohol at the time of the collision and the defence did not contest that, wrote Justice Meschishnick.

But in its unanimous ruling in 2020, the appeal court found that Justice Meschishnick misinterpreted the nature of the 2015 criminal hearing. That 2015 hearing was a sentencing hearing, wrote Court of Appeal Justice Lian Schwann.

Justice Huculak did not find Thomas guilty as a result of the 2105 hearing, Justice Schwann wrote for the appeal court. Thomas had already pleaded guilty. So the purpose of the hearing before Justice Huculak was to decide on how to punish Thomas, not the exact reasons for which Thomas is guilty of impaired driving.

“The only fact contained on the face of Mr. Thomas’s certificate of conviction is that he was convicted of impaired driving on Apr. 6, 2014, in Saskatoon. Noticeably absent is the time of day or location within Saskatoon where the impaired driving took place,” Justice Schwann wrote for the appeal court.

Key to Justice Meschishnick’s 2019 ruling in favour of the plaintiffs trying to sue Thomas was the notion that the 2015 ruling was a “blended” hearing rather than simply a sentencing hearing, appeal court found. The appeal court found that Justice Meschishnick was mistaken in calling it a blended hearing.

Police first heard a report about Thomas’s red Cadillac being driving erratically near the corner of Preston Avenue and College Drive in Saskatoon at 8:23 a.m. on Apr. 6, 2014.  The collision involving the Quinlans was reported to police at 12:42 p.m.

Then at 1:47 p.m., police were dispatched to investigate a report about an impaired male who had been witnessed stumbling across 22nd Street and getting into Thomas’s Cadillac. Then at 3:36 p.m., police were told that an intoxicated person was witnessed driving the same Cadillac through a fast-food drive-through. Two minutes later, police pulled Thomas over after a short pursuit.

In its 2020 ruling quashing the Quinlans’ lawsuit, the Saskatchewan Court of Appeal found that Thomas was not trying to re-litigate his impaired driving conviction or cast doubt over its validity.

During the 2015 sentencing hearing, Justice Huculak asked Thomas why he had been “driving in that condition for that extended period of time.”

The appeal court did not interpret Thomas’ reply to be an admission to the elements of the offence.

The question Judge Huculak put to Thomas in 2015 was: “What was going on? Why were you driving in that condition and for that significant period of time?”

Thomas replied: “I honestly feel pretty stupid about that time. I was — I guess I wasn’t really thinking at the time. I was drinking and driving. I should have learned from my first time I got impaired, and I guess I — I didn’t. And I do feel bad about what I did.”

Published reports indicate Thomas was sentenced to three months in jail.

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