1 Introduction Page to the Appellant 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 righthand 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 appellant 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.
2 [Buff (Beige) Cover] COURT OF APPEAL Court of Appeal File No. CA ON APPEAL FROM: The Order of the Honourable Mr. Justice Purple of the Supreme Court of British Columbia, pronounced on December 13, 2012 Between: And Jane Doe John Doe and ABC Lease Co. Appellant (Plaintiff) Respondents (Defendants) APPELLANT'S FACTUM Jane Doe John Doe Self-represented Jim Brown, # Main Street. Counsel for the Respondent/Defendant Vancouver. B.C. Law Firm V6E 3C9 #1-700 West Georgia Street Vancouver, B.C. V7Y 1B8 ABC Lease Co. Mary Green Counsel for the Respondent/Defendant Law Firm 101 Burrard Street Vancouver, B.C.V7X 1L3 V7X 1L3
3 Buff (Beige) Outside Front Cover
4 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 Court of Appeal File No. CA ON APPEAL FROM: The Order of the Honourable Mr. Justice Purple of the Supreme Court of British Columbia, pronounced on December 13, 2012 Between: And Jane Doe John Doe and ABC Lease Co. Appellant (Plaintiff) Respondents (Defendants) APPELLANT'S FACTUM Jane Doe John Doe Self-represented Jim Brown, # Main Street. Counsel for the Respondent/Defendant Vancouver. B.C. Law Firm V6E 3C9 #1-700 West Georgia Street Vancouver, B.C. V7Y 1B8 ABC Lease Co. Mary Green Counsel for the Respondent/Defendant Law Firm 101 Burrard Street Vancouver, B.C.V7X 1L3 V7X 1L3
5 Inside Front Cover and *Page One (Page One is identical to the buff outside cover, except that it is printed on plain white paper.)
6 [Page 3] INDEX CHRONOLOGY i. OPENING STATEMENT ii. PART I STATEMENT OF FACTS 1. PART II ERRORS IN JUDGMENT 4. PART III THE ARGUMENT 5. PART IV NATURE OF THE ORDER SOUGHT 7. LIST OF AUTHORITIES 9.
7 Pages 2 and 3
8 Pages 4 and 5 are both blank pages. Pages 4 and 5
9 [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 December 1, 2010 May 17, 2011 December 17, 2011 January 28, 2012 March 5, 2012 October 12, 2012 December 13, 2012 The plaintiff, a passenger in a motor vehicle, suffers a broken back as a result of a motor vehicle collision. The Notice of Civil Claim is filed naming John Doe as defendant. The Notice of Civil Claim is amended to add ABC Lease Co. ( ABC ) as a defendant. ABC acknowledged ownership of the motor vehicle. ABC amended its Response to Civil Claim. The trial of this action commenced before Mr. Justice Purple. Mr. Justice Purple delivers his judgment.
10 Pages 6 and 7
11 [Page 8; your Opening Statement is numbered ii in your factum.] ii. OPENING STATEMENT A major issue at trial and the sole issue on this appeal is the vicarious liability of a lease company for the negligence of a driver. The lease in question of a Mazda car included an option to purchase at fair market value. The trial judge, following the decision of this Court in Shoenbach v. Truong (1995), 19 B.C.L.R. (3d) 313 (C.A.), held that the vehicle had actually been sold under a conditional sales agreement and that the lease company was not vicariously liable. The decision of this Court in Shoenbach was based on the choice of a definition for the conditional sale referred to in s. 86(3) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 ( MVA ) and the definition contained in the Personal Property Security Act, R.S.B.C. 1996, c. 359 ( PPSA ). In addition, the contractual rights given to the lease company beyond those required to effect a vehicle lease were designed to ensure that the leasing company was the owner for tax purposes. Revenue Canada recognized ABC s ownership of the Mazda, and so should this Court.
12 Pages 8 and 9
13 Pages 10 and 11 And so on.
14 [Page 10; page 11 is blank. This page is to be numbered page 1 in your factum.] 1. PART I STATEMENT OF FACTS 1. In December, 2010, Jane Doe, the appellant, was a 22-year-old university student who lived with her family in Vancouver. 2. While the appellant's brother normally picked the appellant up from school each day, on December 1, 2010, the brother was unable to do so. At approximately 9:30 p.m. that evening, the appellant was a passenger in a Mazda car (the Mazda ) on Granville Street in Vancouver when the Mazda went out of control and was struck broadside on the passenger side by another vehicle. RFJ, para. 9; AR, p The 23-year old driver of the Mazda was John Doe. [These references are to the Reasons for Judgment and the Appeal Record] 4. Jane Doe suffered a broken back in the accident. While it was initially thought the injuries would be fatal, Jane Doe survived but was left with overwhelming physical, cognitive and emotional deficits. RFJ, paras. 10 to 14; AR, pp. 33 to The impact of the injuries on Jane Doe and her significant care needs are reflected in the damages awarded by the trial judge. a. Pain and suffering: $600,000 b. Past income loss: $ 30,000 c. Specials: $ 30,000 d. Future income loss: $ 900,000 e. Future care: $ 30,000 TOTAL $1,590,000 RFJ, paras. 4 to 14, pp
15 [Page 12; page 13 is blank] The Mazda was leased from the respondent, ABC Lease Co. (ABC). In October, 2010 by John Doe under a document entitled Motor Vehicle Lease Agreement and attached Schedule A (the Lease). The Mazda was previously purchased by ABC from XYZ car dealership for $22,000. Motor Vehicle Lease Agreement, AB, p. 65; RFJ, para. 15; AR pp John Doe provided a $2,500 security deposit to ABC and agreed to make monthly payments over the term of the Lease set at 36 months. The security deposit was not treated as a down payment, so no GST and PST was payable on that amount. The Lease provided for an option to purchase the Mazda for its estimated fair market value. RFJ, paras , AR pp. 35 to According to the wording of the Lease, John Doe was required to purchase $1 million in third party liability insurance. The Lease referred to ABC s ownership of the Mazda and its own third party liability coverage and the evidence at trial confirmed that ABC did have excess liability insurance. RFJ, para. 20; AR pp. 36 to 38; Trans., W. Brown, p. 386, [Note reference to Transcript] 9. In January, 2011, approximately one month after the accident, ICBC and ABC determined that the Mazda was a total loss and reached an agreement on the value of the Mazda. ABC signed an ICBC Salvage Release form stating I am the registered and also the sole legal or beneficial owner of this vehicle and ICBC issued a draft in the amount of $22,000 jointly payable to ABC and John Doe. ABC unilaterally deposited these funds into its account (without obtaining the signature of John Doe) and continued to hold those funds at trial. RFJ, para. 25; AR p. 38; AB p. 86; Trans., W. Brown, p. 393
16 [Page 14; page 15 is blank] The Lease contained the following additional relevant terms: it was entitled Motor Vehicle Lease Agreement ( Lease ); the parties to the Lease are referred to as lessor and lessee ; Clause 1 of the Lease provides: Lessor agrees to lease to Lessee and Lessee agrees to lease from Lessor the motor vehicle (hereinafter called Vehicle ) described on Schedule A... Clauses 5 and 6 together restrict the uses to which the Mazda may be put during the term of the Lease and places several restrictions on the types of people that the lessee can authorize to use the Mazda during the lease term; Clause 9 prohibits the lessee from assigning the Lease without the consent of the lessor; Clause 11 mandates the type and amount of insurance to be purchased by the lessee, including third party liability insurance; the Agreement was for a term of 36 months commencing on October 31, 2010 with an option to renew or extend for a further 12 months; there was no down payment but a $2,500 security deposit was paid; the monthly rental payments were $ (and would total $19, at the end of the 36-month term); and the Lessee had the option to purchase the Mazda at the end of the 36- month term for $20,000 described as the estimated fair market value. During the course of the Lease, ABC sought and obtained from Revenue Canada, capital cost allowance on the Mazda. Exhibit 19 (AB. p. 56) stated: The parties agree that, solely for income tax purposes ABC during the course of the subject lease, claimed Capital Cost Allowance (CCA) as owner of the Mazda and received a deduction for CCA on the Mazda.
17 [Page 16; page 17 is blank] 4. PART II ERRORS IN JUDGMENT 11. The appellant says that the trial judge erred in: a. finding that ABC was entitled to avoid liability as owner of the Mazda through the operation of s. 86(3) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318; b. notwithstanding the protection of s. 86(3), failing to find that ABC was liable as a beneficial owner of the Mazda given the terms of the Lease, the actions of ABC and its involvement with the Mazda; and/or c.. failing to find that ABC was liable under the Lease.
18 [Page 18; page 19 is blank] 5. PART III THE ARGUMENT Applicability of Section 86 (3) of the Motor Vehicle Act 12. Section 86 of the MVA reads as follows: 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. 13. ABC plead that the Mazda had been sold by ABC, within the meaning of the PPSA and that s. 86(3) of the MVA precluded ABC from being held vicariously liable as owner. 14. The trial judge rejected the appellant's submissions that the Mazda had not been sold pursuant to the PPSA and that the decision of this Court in Schoenbach v. Truong (1996), 19 B.C.L.R. (3d) 313 (C.A.) was both wrongly decided and not applicable. 15. Of great significance in this appeal is the history of s. 86(3) of the MVA: how the various British Columbia trial and appellate courts have construed and applied it.
19 [Page 20; page 21 is blank] The legislative intent in holding the owner of a vehicle vicariously liable for the negligence of the driver was described by Cory J. A. in Zago v. Davies (1985), 18 D.L.R. (4 th ) 272, where in referring to the comparable Ontario provisions he said at 274: Section 166(1) of the Highway Traffic Act legislates the liability of the owner of a motor vehicle... The wording of the section, as it appeared at the time of the accident, is instructive. It provided: 166(1) The owner of a motor vehicle is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle on a highway unless the motor vehicle was without the owner's consent in the possession of some person other than the owner or the owner's chauffeur, and the driver of a motor vehicle not being the owner is liable to the same extent as the owner. It is significant that the section first refers to the owner who is made primarily responsible for the negligent operation of a motor vehicle on a highway. There is no restriction placed on this responsibility. In addition, there is no indication that the owner's liability rests on any particular relationship or deemed relationship with the driver. Rather, the responsibility of the owner derives solely from his ownership of that motor vehicle and is activated by the negligence of the driver. The section was enacted for compelling social and practical reasons. The negligent operation of a motor vehicle can cause crippling injuries and death leading to crushing financial hardship for the victim. The legislators no doubt considered that the owner of a motor vehicle was more likely to be financially capable of bearing responsibility for that financial hardship, either through his personal holdings or insurance coverage than, for example, a 16-year-old driver using the vehicle with the owner's permission. 18. [Continue with your legal argument ] Next page in this document is Part IV
20 [Page 22; page 23 is blank] 7. PART IV - NATURE OF ORDER SOUGHT That: The appeal be allowed and ABC found vicariously liable; and The appellant recover costs of this appeal. ALL OF WHICH IS RESPECTFULLY SUBMITTED. Name of Lawyer, Counsel for the appellant/plaintiff Vancouver, B.C. June 24, 2012
21 [Page 24; page 25 is blank] 8. SCHEDULE A [Set out the lease between ABC and John Doe]
22 [Page 26; page 27 is blank] 9. LIST OF AUTHORITIES At Page 1. Motor Vehicle Act, R.S.B.C. 1996, c. 318, s. 86 6, Personal Property Security Act, R.S.B.C. 1996, s. 23 6, 8, 9 3. Alexander v. Bertram and Ford Credit Canada Ltd. (2000), 72 B.C.L.R. 3(d) 66 (S.C.) 9 4. D.R. Fraser & Co. v. M.N.R.,  A.C Huddleston v. Ramzan (1988), 26 B.C.L.R. (2d) 266 (S.C.) Larocque v. Lutz (1981), 27 B.C.L.R. 357 (C.A.) 9, 11, 21, Rizzo v. Shore,  1 S.C.R Schoenbach v. Truong (1995), 3 B.C.L.R. (3d) 285 (S.C.) 6, Zago v. Davies (1985), 18 D.L.R. (4th) 272 (O.C.A.) 8, 9