Introduction Page to the Respondent s PDF Factum: Note: When you bind your factum, all pages (except for the cover and index) starting with your chronology, should always be on the left-hand side. The right-hand side should always be left blank. This is so that the judge is able to write notes on the blank sheets as you present your argument. The page numbers in square brackets are to assist you when putting your factum together. They are not intended to be included at the top of each page. This is an example of the respondent s factum in a case involving a motor vehicle accident. The injured plaintiff (Jane Doe) brought an action against the driver of the car (John Doe) and ABC Lease Co., which had leased the car to John Doe. At trial, John Doe argued that he was not the owner of the car, and that ABC should be liable for the plaintiff s damages because it was still the owner. ABC argued that John Doe was the owner because he had purchased the car under a conditional sales agreement (because he could purchase the car at the end of the lease period). The trial judge agreed with ABC and found that John Doe was responsible for paying the plaintiff s damage award. John Doe is appealing that decision and argues that the trial judge erred in interpreting the Motor Vehicle Act and the lease, and that he was not the owner of the car.
[Green Cover] Court of Appeal File No. CA012345 COURT OF APPEAL ON APPEAL FROM: The Order of the Honourable Mr. Justice Purple of the Supreme Court of British Columbia, pronounced on December 13, 2012 Between: Jane Doe And Appellant (Plaintiff) John Doe and ABC Lease Co. Respondents (Defendants) FACTUM OF RESPONDENT, JOHN DOE Jane Doe For the Respondent, John Doe Self-represented Jim Brown, #14-1111 Main Street. Counsel for the Respondent/Defendant Vancouver, B.C. Law Firm V6E 3C9 #1-700 West Georgia Street Vancouver, B.C. V7Y 1B8
Green Outside Front Cover
Note: *The page numbers in square brackets are to assist you when putting your factum together. They are not intended to be included at the top of each page. The cover page is not numbered. [*Page One] Court of Appeal File No. CA012345 COURT OF APPEAL ON APPEAL FROM: The Order of the Honourable Mr. Justice Purple of the Supreme Court of British Columbia, pronounced on December 13, 2012 Between: Jane Doe And Appellant (Plaintiff) John Doe and ABC Lease Co. Respondents (Defendants) FACTUM OF RESPONDENT, JOHN DOE Jane Doe For the Respondent, John Doe Self-represented Jim Brown, #14-1111 Main Street. Counsel for the Respondent/Defendant Vancouver, B.C. Law Firm V6E 3C9 #1-700 West Georgia Street Vancouver, B.C. V7Y 1B8
Inside Front Cover and *Page One (Page One is identical to the green outside cover, except that it is printed on plain white paper.)
[Page 3] INDEX Page CHRONOLOGY i OPENING STATEMENT ii PART I - STATEMENT OF FACTS 1 PART II - ISSUES ON APPEAL 1 PART III - ARGUMENT 1 A. Vicarious Liability 1 B. Scope of s. 86(3) 3 C. Section 86(3) - Purchaser 4 D. Conclusion 5 PART IV - NATURE OF THE ORDER SOUGHT 6 SCHEDULE A - Motor Vehicle Act, Section 86 7 LIST OF AUTHORITIES 8
Pages 2 and 3
Pages 4 and 5 are both blank pages. Pages 4 and 5
[Page 6] Reminder, the number 6 here in brackets is to help illustrate how to put your factum together. This number is not to be included at the top of the page.] The Chronology is numbered i in your Factum. Note: From the Chronology forward, the right-hand side of the page should remain blank. This is so that as you present your argument, the judges are able to write notes on the blank sheets.. i. CHRONOLOGY September 2, 2010 October 31, 2010 October 31, 2010 October 31, 2010 December 1, 2011 January 11 & 16, 2012 Respondent ABC Lease Co. ( ABC ) purchased the Mazda (Mazda) for $22,000 ABC approved John Doe s credit application. Lease entered into between John Doe and ABC Lease Co. John Doe registered as lessee and ABC registered as lessor on vehicle registration. Mazda driven by John Doe with appellant Jane Doe as passenger; motor vehicle accident occurs; appellant injured. Salvage Release signed by ABC; cheque payable to John Doe and ABC issued for the value of the Mazda.
Pages 6 and 7
[Page 8; the Opening Statement is numbered ii in your Factum.] ii. OPENING STATEMENT The sole issued raised in this appeal involves the interpretation and operation of s. 86 of the Motor Vehicle Act ( MVA ). Section 86 provides for the vicarious liability of vehicle owners for motor vehicle accidents. The appellant (plaintiff) was a passenger in a Mazda vehicle driven by John Doe. The Mazda had been purchased by ABC and then leased by ABC to John Doe pursuant to an agreement, styled a lease, in the nature of a conditional sale. The issue on appeal is whether ABC is an owner within the meaning of s. 86(1) of the MVA and thus vicariously liable to the appellant; or excluded as an owner under s. 86(3), and thus not vicariously liable to the appellant. The respondent John Doe submits (in support of the appellant) that ABC is vicariously liable, pursuant to s. 86. Specifically, in John Doe s submission, ABC continued to be an owner of the Mazda and thus vicariously liable. He did not purchase the Mazda under a conditional sales agreement.
Pages 8 and 9
Pages 10 and 11 And so on.
[Page 10; page 11 is blank. This page is to be numbered page 1 in your factum.] 1. PART I STATEMENT OF FACTS 1. The respondent, John Doe, accepts the findings of fact made by the trial judge. 2. The respondent, John Doe, also accepts the statement of facts set out in the appellant's factum. PART II ISSUES ON APPEAL 3. The learned trial judge erred in applying s. 86(3) of the MVA to the present factual matrix. On a proper understanding of the facts and law, ABC should be found vicariously liable because s. 86(3) is not engaged. PART III THE ARGUMENT A. Vicarious Liability 4. Section 86 of the MVA (Schedule A) creates a form of vicarious liability. Section 86 defines the scope of the vicarious liability imposed; but it is further submitted that the general principles and policies of vicarious liability must also shape the interpretation and operation of s. 86. 5. The leading case on vicarious liability is Bazley v. Curry, [1999] 2 S.C.R. 534, 62 B.C.L.R. (3d) 173. The context of that case is very different from the present case, but the analysis of vicarious liability covers all manner of cases and the Supreme Court's analysis deals in general terms with the topic of vicarious liability and its underlying policy considerations.
[Page 12; page 13 is blank] 2. 6. While there is much that can be said about the Bazley case, one important point arises from para. 34, where it is stated: The policy grounds supporting the imposition of vicarious liability - fair compensation and deterrence - are related. The policy consideration of deterrence is linked to the policy consideration of fair compensation based on the employer's introduction or enhancement of a risk. The introduction of the enterprise into the community with its attendant risk, in turn, implies the possibility of managing the risk to minimize the costs of the harm that may flow from it. 7. To put that in terms of the present case, it may be suggested that a leasing company, such as ABC, injects the risk of a car onto the road in furtherance of its economic benefit. It has the ability to spread the risk in an efficient manner by obtaining insurance to cover vehicles under its lease program, a cost which it can allocate among its customers and to its particular lessees. It can also manage the risk, by the terms of its contract, for example, by requiring its lessees to obtain appropriate insurance and by prohibiting further alienation of the vehicle by the lessee. 8. Incidentally, an insurance requirement is imposed in the Lease by clause 11.1 RFJ, para. 20; AR, p.33 [These references are to the Reasons for Judgment and the Appeal Record] 9. Section 86 is clearly intended to effect this vicarious liability purpose, as recognized by Goldie J.A.:
[Page 14; page 15 is blank] 3. It is apparent the legislature has imposed a heavy burden on those who have within their power the control of motor vehicles. In the language of the old authorities the mischief aimed at is the perceived irresponsibility of owners in their control of the possession of motor vehicles. The reason for legislative intervention may be traced, in part at least, to the appalling consequences of reckless use of motor vehicles. Irresponsibility on the part of those who may deny or confer possession of motor vehicles may be seen as the reason for the legislative initiative. The legislation in question must be regarded as remedial. [Para. 24.] Morrison v. Cormier Vegetation Control (1996), 28 B.C.L.R, (3d) 280 (C.A.) 10. This is not to say that vicarious liability is to be imposed simply in order to provide a remedy to an injured plaintiff. The legislation must be interpreted within its own terms. Such interpretation is the key to the present appeal. Section 86(1), being remedial, ought to be interpreted broadly; s. 83(3), being an exculpatory clause, ought to be read strictly. 11. ABC may argue that commercial considerations and convenience ought to weigh in its favour and against imposition of vicarious liability. John Doe submits that such an argument is not acceptable. In Morrison Goldie J.A. stated: It is clear transferring possession from employer to employee each time a salesman of Carter's Luxury Motor Car Division required one of these automobiles to demonstrate or to deliver as a loan car would be cumbersome and might defeat the very purpose for the present arrangements. But in my view, as only Carter can accept, modify, or avoid the consequence of the present arrangement, the commercial desirability of the arrangement is no defence to the statutory imposition of vicarious liability. [At para. 29.]
[Page 16; page 17 is blank] 4. B. Scope of Section 86(3) 12. Strict compliance with the terms of s. 86(3) is demanded if the owner (i.e., ABC) is to be absolved of its vicarious liability. For instance, in Alexander v. Bertram (2000), 72 B.C.L.R. (3d) 66 (C.A.), s. 86(3) was held inapplicable because the option to purchase was contained in a separate document. That illustrates the strict approach taken to s. 86(3). C. Section 86(3) Purchaser 13. Section 86(3) absolves ABC of vicarious liability if and only if the vehicle is in possession of the purchaser. 14. John Doe was clearly not the purchaser vis-à-vis ABC. There was no sellerpurchaser relationship between John Doe and ABC. 15. There can be no doubt that ABC, as lessor, was indeed an owner of the Mazda in a real sense, and in any common sense understanding of the word owner. It is indeed inherent in the concept of the lessor-lessee relationship, the conditional sale relationship, and the business operations of ABC.
[Page 18; page 19 is blank] 5. D. Conclusion 16. In conclusion, it is clear from the facts that John Doe had possession but was not the purchaser. Accordingly, ABC cannot avail itself of s. 86(3) to avoid vicarious liability. ABC is therefore vicariously liable for the damages arising from the motor vehicle accident.
[Page 20; page 21 is blank] 6. PART IV- NATURE OF ORDER SOUGHT 17. The respondent, John Doe, seeks an order: Declaring that ABC is vicariously liable; and Awarding costs of this appeal to him. ALL OF WHICH IS RESPECTFULLY SUBMITTED. John Doe, Self-Represented Respondent/Defendant Vancouver, B.C. July 1, 2012
[Page 22; page 23 is blank] 7. SCHEDULE A Motor Vehicle Act, Section 86 86(1) In an action to recover loss or damage sustained by a person by reason of a motor vehicle on a highway, every person driving or operating the motor vehicle who is living with and as a member of the family of the owner of the motor vehicle, and every person driving or operating the motor vehicle who acquired possession of it with the consent, express or implied, of the owner of the motor vehicle, is deemed to be the agent or servant of that owner and employed as such, and is deemed to be driving and operating the motor vehicle in the course of his or her employment. Nothing in this section relieves a person deemed to be the agent or servant of the owner and to be driving or operating the motor vehicle in the course of his or her employment from the liability for such loss or damage. If a motor vehicle has been sold, and is in possession of the purchaser under a contract of conditional sale by which the title to the motor vehicle remains in the seller until the purchaser becomes the owner on full compliance with the contract, the purchaser is deemed an owner within the meaning of this section, but the seller or the seller's assignee is not deemed to be an owner within the meaning of this section. [Emphasis added.]
[Page 24; page 25 is blank] 8. LIST OF AUTHORITIES At Page 1. Alexander v. Bertram (2000), 72 B.C.L.R. (3d) 66 (C.A.) 5 2. Bazley v. Curry, [1999] 2 S.C.R. 534, 62 B.C.L.R. (3d) 173 3 3. Morrison v. Cormier Vegetation Control (1996), 28 B.C.L.R. (3d) 280 (C.A.) 4, 7