Case citation: Delfs v. Stricker, 2024 BCCA 35

This appeal challenges the dismissal of a negligence claim stemming from a tragic accident involving the plaintiff, Tanner Delfs, who sustained severe injuries while riding as a passenger on an all-terrain vehicle known as an RZR. The RZR was owned by Fred and Kim Stricker, and was driven by their 15-year-old son Josh.

Background and Trial Decision
In August 2009, 9-year-old Tanner visited the Stricker family’s recreational property near Fairmont Hot Springs, British Columbia. Fred, Josh, and another family friend decided to go off-roading in the nearby mountains.  There had been a windstorm in the area a few days earlier and the group planned to clear the trails of fallen trees and branches. Tanner asked to accompany them and obtained his mother’s permission to do so.

Both Fred and Josh had experience operating all-terrain vehicles but the RZR, which Josh was driving that day, was new. Tanner rode with Josh, while Fred took the lead on a separate vehicle. There were fallen branches along the trail as a result of the windstorm, and the group stopped a few times for Fred to clear debris and to check in with the boys.

Approximately an hour into the trip, while Fred was ahead of the RZR and out of sight, something on the trail caused the RZR to come to an abrupt stop. Tanner felt a sharp pain in his stomach. A branch had impaled him on the right side of his body just below his ribs. The RZR then rolled back, partially pulling out the branch and causing his intestines to fall out. Josh exited the vehicle and ran for his father. The parties eventually obtained help and Tanner was airlifted to the hospital. He underwent extensive surgeries and continued to have pain and other symptoms for many years. 

Although Tanner was 9 years old at the time of the accident, he did not commence his action against the Strickers until he was an adult. The matter went to trial in 2021. In the result, Tanner’s action was dismissed on the basis that he had failed to prove that any of the defendants were negligent.  

Appeal
Tanner appealed. First, he argued that the trial judge failed to recognize that permitting a 9-year-old to be a passenger on the RZR, contrary to the user manual, was a breach of the standard of care and a cause of his injuries.

Second, Tanner argued the trial judge erred in failing to find a prima facie case that Josh was negligent, and in finding that Tanner bore the onus of proof. The Motor Vehicle (All Terrain) Act, which was in force at the time of the accident but repealed prior to trial, reversed that onus.

With respect to the first issue, the Court of Appeal found no error on the part of the trial judge. Tanner’s age alone was not sufficient to find a breach of the standard of care. The trial judge was not wrong in declining to accept that the RZR owner’s manual defined that standard. Tanner also failed to establish a prima facie inference of negligence. 

With respect to the second issue, the burden of proof that applied at trial depended on whether the reverse onus in the Motor Vehicle (All Terrain) Act was a procedural provision or a substantive one. Pursuant to the Interpretation Act, only substantive provisions result in a vested right that survives a change to the legislation. 

In considering the matter, the Court of Appeal noted that the jurisprudence on the issue was dated and not determinative. Prior cases involving presumptions required a finding of fact in the absence of evidence to the contrary. The Court of Appeal concluded that the language of the Motor Vehicle (All Terrain) Act did not require the trier of fact to assume a particular fact in the absence of evidence to the contrary. Rather, it permitted a judge to draw a legal conclusion (negligence) if the defendants failed to meet the onus of proof that they were not negligent.

In the result, the Court of Appeal found that a purely rebuttable presumption of negligence does not affect the content (i.e. facts) of an action, and as such is purely procedural. This statement of the law applies not only to the Motor Vehicle (All Terrain) Act, but to any legislation in British Columbia that provides for a rebuttable presumption of a legal finding. In such cases no right to the presumption exists unless the legislation is in effect at the time of trial.

The takeaway for both sides in this appeal is that, in the absence of very specific circumstances, the plaintiff always bears the onus of proving that the defendant was negligent. Where, as here, the accident occurred many years ago and the evidence on precisely how it occurred is equivocal, the plaintiff cannot rely on the fact of the accident itself to establish his case.