It is trite to say that motor vehicles are dangerous objects. As convenient and utilitarian as they may be, they can also be deadly. Drivers bear a great responsibility anytime that they put one in motion. A moment’s inattention is often all that is needed to change someone’s life forever. It is not a coincidence that motor vehicle accidents form such a considerable body of jurisprudence in the field of tort law. Although the purpose of tort law is not punitive, but compensatory, it still helps make drivers accountable for their negligent actions.

Evidently, legislators from around the world have acknowledged the threat posed by negligent drivers through the numerous statutes regulating the use of the roads. New Brunswick is not different. The main purpose of the Motor Vehicle Act, RSNB 1973, c. M-17, is to make roads safer for everybody. Regarding distracted driving, the following general offence is defined at s. 346(1):

  1. (1) Every person who drives a motor vehicle on a highway

(a) without due care and attention,

(b) without reasonable consideration for any other person using the highway, or

(c) in a race,

commits an offence.

As it can be gleaned from its terms, the statement is fairly broad and potentially covers an infinite number of scenarios, from fidgeting with the radio, talking to passengers, eating, dosing off, etc.

With the development of technologies of all sorts, especially in the field of telecommunications, the potential for distraction has increased exponentially. These have led the New Brunswick legislature to add, in 2010, further provisions dealing with distracted driving: An Act to Amend the Motor Vehicle Act, SNB 2010, c. 33. More specifically, although some exceptions are provided, s. 265.02 states that “No person shall operate a motor vehicle on a highway while using a hand-operated electronic device”, the latter being defined as:

(a) a cellular telephone;

(b) a two-way radio;

(c) a portable global positioning system navigation device;

(d) a portable entertainment device;

(e) another electronic device that

(i) includes a telephone function, and

(ii) normally is held in the user’s hand during use or requires the user to use his or her hand to operate any of its functions;

(f) an electronic device that is not otherwise described in paragraph (a), (b), (c), (d) or (e) that

(i) is capable of transmitting or receiving e-mail or other text-based messages, and

(ii) normally is held in the user’s hand during use or requires the user to use his or her hand to operate any of its functions; or

(g) any other hand-operated electronic device prescribed by regulation[.]

Furthermore, pursuant to s. 265.04(1), “No person shall operate a motor vehicle on a highway if a display screen in the motor vehicle is visible to the driver”. Again, a few exceptions are provided.

While an offence to s. 346(a) is punishable by way of 5 demerit points and a minimum fine of $500 (s. 297(2)(a); Provincial Offences Procedure Act, RSNB 1973, c. P-22.1, s. 56(8) (offence “H”)), an offence to ss. 265.02 or 265.04(1) is punishable with 3 demerit points and a minimum fine of $140 (ss. 297(2)(k) & (l); Provincial Offences Procedure Act, supra s. 56(3) (offence “C”)). On January 1, 2021, the minimum fine for an offence under ss. 265.02 or 265.04(1) was doubled: An Act to Amend the Motor Vehicle Act, SNB 2020, c. 2, s. 8.

Contrary to other types of provisions, those sections of the Motor Vehicle Act, supra, set up straightforward prohibitions instead of rules of the road. In other words, they create offences but do not prescribe what drivers can do to exercise due care and attention. To return to the field of tort law, one has to ask how those prohibitions affect the civil liability of drivers who fail to comply with them. Although the Supreme Court of Canada, in Canada v. Saskatchewan Wheat Board, [1983] 1 SCR 205 p. 211, perceived a “general agreement that the breach of a statutory provision which causes damage to an individual should in some way be pertinent to recovery of compensation for the damage”, it did not hold it as an automatic conclusion. It stated (pp 225-226):

Breach of statute, where it has an effect upon civil liability, should be considered in the context of the general law of negligence. Negligence and its common law duty of care have become pervasive enough to serve the purpose invoked for the existence of the action for statutory breach.

It must not be forgotten that the other elements of tortious responsibility equally apply to situations involving statutory breach, i.e. principles of causation and damages. To be relevant at all, the statutory breach must have caused the damage of which the plaintiff complains. Should this be so, the violation of the statute should be evidence of negligence on the part of the defendant.

A similar dictum was formulated by the New Brunswick Court of Appeal, in Saulter v. Côté Estate (1983), 49 NBR (2d) 124 para 12, where it explained that “But failure to observe statutory rules of the road, unless an effective cause of an accident, is not a factor in determining liability”.

Thus, the current state of the law considers a statutory breach as one of the contextual elements when proving liability of a negligent driver. In order to be relevant, there must be a causal link between the statutory breach and the accident (see “Causation”). For example, the distracted driver getting rear ended will not be at fault simply because s/he happened to be texting at the time of the collision. A plaintiff must prove that the distraction contributed to the accident. When that is established, then the burden shifts to the defendant to show the absence of negligence. As a majority of the New Brunswick Court of Appeal explained, in Ward v. Haché (1984), 54 NBR (2d) 335 para 12:

It is a well-established principle that when a person is in violation of a highway statute or regulation the purpose of which is to protect the other users of the highway and there is a relation between the offence and the accident, the person who is in violation has the burden of showing that the accident occurred without negligence on his part.

A transfer of burden is not unusual, as in cases of rear end collisions where the driver of the rear vehicle will usually have to show that his or her negligence did not cause the accident: Plant v. Lanyon (1982), 43 NBR (2d) 204 para 4 (CA).

Although plenty of civil cases attribute accidents to driving without due care and attention (see Gajowiak v. Blakney (1978), 21 NBR (2d) 100 para 14 (QB)), none is known where liability rested expressly on a statutory breach of the relatively new ss. 265.02 and 265.04(1) of the Motor Vehicle Act, supra. Such cases will likely follow the general principles of driving without due care and attention, being a subset of the broader offence. Where there is a registered conviction, it is certainly a factual element that a plaintiff would normally invoke to support the liability claim against the defendant; but the conviction is not necessary where the evidence shows a statutory breach.

This paper is offered for the purpose of discussion only. It does not constitute legal advice and its distribution does not create a solicitor-client relationship. Please consult a lawyer if you require legal advice.