 Okay, I guess we're ready to go. Sorry for the late start, everybody. We've had some technical difficulties, but I guess that's what we're living with in 2020. I'd like to welcome everyone to the 2020 Smith Shield Move competition. This is traditionally a highlight of the academic year and it's our most prestigious moving event. Before we get started, I just want to say a few words about the Smith Shield. The Smith Shield goes all the way back to 1927. That's 93 years. So there's a lot of history here. For example, Canada's most famous judges, lawyers, and academics have participated in the Smith Shield, including several familiar faculty members. The participants for the Smith Shield are chosen from the top mooters in the mandatory second year. And this year's mooters are Nicole Kelly and Yazan Matareya for the appellant and Siobhan Donovan and Samuel Boyerle for the respondent. Our prestigious judicial panel is comprised of the Honorable Chief Justice of Nova Scotia, Michael Wood, Mr. Jim Rosseter, QC, President of the Nova Scotia Barrister Society and Professor Elaine Gibson, faculty member at the Schulich School of Law. There's a few people I also want to acknowledge, Professor Michael Hatskis for drafting this year's problem which addresses the issue of liability of minors and tort. And also Professor Ashley Barnes, our faculty advisor, who shepherded the students through their preparations for tonight's moot. A big thank you of course also to Jordy Lounsbury for his technical help in getting us online this year and Elizabeth Sanford and Ashley Hinshey for all their work in organizing this event. And thank you for joining us here online. I've been asked to please notify you that the chat function should not be used during this event. So please do not use the chat function. So without further ado, I'm going to turn things over to our court crier, Evan Hall, who will get our proceedings started. Thank you. Oh yay, oh yay, oh yay. This sitting of the Supreme Moot Court of Dalhousie at Halifax with the Honorable Chief Justice, Michael Wood, Professor Elaine Gibson and Mr. Jim Rosseter now presiding is now open. All persons who have anything to do with it, draw near and give your attendance and ye shall be heard, God save the Dean. Thank you, good evening everyone. Welcome to the Smith Shield Moot Court competition. Just a couple of technical things of make sure that if you have a microphone, it's muted. That way there'd be no risk of any interference. And what we're going to do in a moment is just get each counsel to introduce themselves to unmute their mic and introduce themselves just so we can make sure that the audio is working fine for each of them. And then after that we'll begin the moot. It will be timed and the time function will be visible to the students. They'll each have 20 minutes. And we won't be taking a break between the appellants submissions and the respondent submissions and following the submissions, which will include hopefully questions from the panel. The panel will adjourn for probably 10 minutes or so, maybe a little bit longer and discuss the submissions of the mooters and hopefully be in a position to come back and indicate the results of the competition. So it should be a full night. We're all looking forward to it. And without any further ado, I would call on the appellants counsel first to unmute their mics and introduce themselves. Good evening. My name is Nicole Kelly and I'm appearing on behalf of the appellant, Mr. Frank Jones. Good evening, Justices. My name is Yasmine Marparia and I'll be speaking on behalf of the appellant on the second issue. Thank you. And the respondents. Good evening. My name is Siobhan Donovan appearing for the respondent on the first issue. Good evening. My name is Sam Boyerla and I will be appearing for the respondent speaking to the second issue. Great. That's a wonderful thank you. We think he heard you loud and clear. So without any further ado, I am going to call on Ms. Kelly to make the initial submissions on behalf of the appellant. Good evening, my lords and my lady. This is the matter of Jones and Bollack. My name is Nicole Kelly and I'm appearing on behalf of the appellant, Mr. Frank Jones. I'm joined by my colleague, Mr. Yazan Mataria. My friends, Ms. Siobhan Donovan and Mr. Samuel Boyerla appear on behalf of the respondent, Ms. Eileen Bollack. The facts of this matter are set out in pages three to four of the appellant's factum. Unless this honorable court would prefer for me to recite the facts, I propose we proceed directly to arguments. No court directly to argument. We've read the facts. Thank you. Thank you. This matter is about determining whether a child should be held accountable for her negligent actions. On the morning of April 1st, 2017, the appellant, Mr. Jones, was innocently enjoying the comforts of his own home when the Spitfire plane came careening through his apartment window and crashed into him. The injuries he suffered were serious, causing detrimental physical and psychological consequences that he will have to manage for the rest of his life. Both parties agree that the respondent owed the appellant a duty of care, that the appellant suffered injuries that are recognized by law, and that the appellant's injuries were caused, in fact, and in law by the respondent's actions. The only matter left in dispute is a determination on the applicable standard of care that the respondent's behavior must be held to. The appellant respectfully submits that the trial judge made two errors in law in holding that the respondent did not reach the applicable standard of care. First, that the Nova Scotia Supreme Court erred in holding that the adult activity doctrine does not apply to a child's operation of a motorized model plane. Second, that the Nova Scotia Supreme Court erred in considering the respondent's age, intelligence, and experience in determining the applicable standard of care. My colleague, Mr. Yazan Mataria, will address this second issue. If it pleases this honorable court, I will begin by outlining the underlying principles and policy rationales to the adult activity doctrine. I will next identify the specific characteristics that distinguish adult activities from other activities, namely the physical requirements of the activity, the cognitive skills required to partake in the activity, and the individual and community-associated risks of the activity. Finally, I will just- Council, could you please describe where in law is this description of what should be required for the adult activity doctrine that can be found? Yes, so the previous jurisprudence on this topic has not been clear. In courts that have adopted it previously, most of the time, they just determine whether or not an activity is adult by comparing it to other activities that have been classified as adult, and usually it's characterized by the motor-powered nature of the activity, as well as the risks associated with it, but there have been activities that are not motor-powered that have also been classified as adult, such as golfing. So therefore we- I'm sorry to interrupt, there's a bit of a delay, so I may be interrupting by accident. So are you asking this court to set out a new doctrine, which goes by the description of the rules that you see fit? That is correct. The Pellent Proposes a novel test for determining which activities are adult. Council, was there- Sorry, are you saying there really was no test in the past that you could discern from the cases, or are you looking to change a test that was well-established? There was no clearly established test before. There were characteristics that they found similar, between many activities that have been held to be adult, but it has also created much confusion and the adoption of the doctrine, and it isn't as applied as often as it should due to the lack of clarity around what is and is not an adult activity. Finally, I will discuss the respondents' wrongly-preported criteria of adult activities, namely the minimum age or threshold competence requirement, licensing requirement, and insurance requirement. While these factors may coincide or be indicative of adult activities, they are not determinative. What this case truly comes down to is the appellant's request that this honorable court hold the respondent accountable for her wrongful actions. The appellant is not asking that the respondent be found criminally responsible, nor is the appellant seeking to ruin the rest of the respondent's life. The appellant simply seeks to be compensated for the injuries that he suffered at the hands of the respondent. Yes, there are certain circumstances where the immaturities and innocence of a child should relieve them from liability, but this is not one such situation. The respondent chose to partake in an adult activity when she decided to operate the five-foot wingspan, 4.5 kilogram fiberglass gas-powered model spitfire plane, and as such. Councilor Mayne, I interrupt you there. Can it truly be said to be a choice by the 10-year-old with a cognitive ability of an eight-year-old when she sees a shiny object that lures her to it? Is it truly, I guess what I'm asking is, was it truly a choice by this 10-year-old with a cognitive ability of an equal? The appellant submits yes, as it wasn't simply a kite that you grabbed from someone's hand. She made the conscious decision to grab it, place it on a runway, and operate the three joysticks required on the transmitter to get it into the air, and then attempt to defy it. So it wasn't, there was no gun put to her head. There was nothing causing her to have to do it. It was her own choice to pick up the plane and do so. My perspective, with the heart of this matter, maybe choice was the wrong way. The heart of this matter is not did the 10-year-old with the eight-year-old cognitive ability choose to physically do what she did. But for me, what I'm grappling with is, can it truly be said that she comprehended the potential consequences of what she was doing in the way that an adult could potentially comprehend the potential consequences of operating a spitfire? So the matter of this case doesn't come down to the specific subjective criteria of the respondent. At least that's the appellant submissions. Tort law is about an objective standard. It's about society's conceptions, about society's idea of when compensation is deserved. And although it's unfortunate that in this case, a 10-year-old may not have even had the cognitive abilities of another 10-year-old, unfortunately, the case comes down to whether or not she should be held responsible as any other participant in the activity would. So it doesn't come down to a child versus an adult, it comes down to a reasonable person. So it's a matter that she may not have been remotely aware that she was participating in the net old activity if she was participating in the net old. That is something that should be considered once the standard that is applicable has been decided. So when looking at the objective standard, it's someone in similar circumstances. So it will be taken into account at that point. But when deciding whether or not an activity is adult, the question is about the characteristics of the activity rather than the characteristics of the participant. As stated by the Ontario Court of Appeal in McEarland and Sorrell, when the rights of adulthood are granted, the responsibilities of maturity should accompany them. The adult activity doctrine applies in circumstances where it would be unfair to hold children to a lesser standard of behavior than any other participant in the activity. Council for the respondents conceded that it is impossible for pedestrian to know whether the operator of a motorized vehicle is a child or an adult, and therefore a purely objective standard of care must apply. The same rationale applies for the operation of a motor-powered model plane. It is impossible for pedestrian to know the competence of the operator of the plane, and they must therefore rely on the fact that either the operator has the ability to exercise the required care and control to operate the plane, or otherwise they will be compensated by the law if they are injured by the operators incompetence. Children cannot be afforded special treatment when they partake in these activities. In the limited situations where a modified objective standard has been held applicable, the circumstances have always included a child plaintiff and a child defendant. In such circumstances where both parties are aware of the age and abilities of each other, it has been held unjust to hold the child defendant to a standard of behavior that does not take into account their youth, and yet determine the damages owed to the plaintiff completely on the basis of their subjective characteristics. Council. Section. Yes. Criminal law is replete with examples of differential treatment and relaxed treatment in the case of youth. And that relaxed treatment or differential treatment is underscored by international human rights law. And it's well understood in criminal law that young persons are particularly vulnerable and in large part because they haven't completely formed the cognitive abilities to appreciate the consequences of their actions. Are there lessons to be learned here from criminal law? Is there a reason why criminal law would approach the instance of young persons so fundamentally different from adults? And yet tort law and negligence law is inflexible in that sense. Well, I respectfully the justifications behind having more subjective characteristics taken into account in criminal law, a lot of that comes down to the particular stigma involved in criminal law and the potential outcome of a guilty finding. And that's also reflected in the onus and the burden in criminal law versus civil. In criminal law, it's a presumption of innocence and it's beyond a reasonable doubt. And in civil law, it's on a balance of probabilities. We are aware that the laws have to be treated dependent on whether it's civil or criminal. And in criminal law, there are policy reasons behind taking into account the specific circumstances of the accused but not in civil law. Also, you've made the point that this appeal, at least the first issue on the appeal, comes down to a question of how you define what an adult activity is to fit within the exemption. And on that point, you and your friend opposite the respondent disagree as to how that determination should be made. Why is it that your determination makes more sense than theirs? Well, there are some merits to this specific criteria that is proposed by the counsel for the respondent. There are many issues with this criteria. The biggest being that it would create inconsistency in the law. Activities that have been previously declared adult activities would no longer qualify under these criteria. For example, operating a snowmobile, riding a trail bike, and playing golf do not require a license or insurance and do not have minimum age requirements. Yet they were all declared adult activities by courts and Ryan, McEarland, and Pope, respectively. Yes, there may be many adult activities that have minimum age requirements or require a license to participate. There are also many adult activities that do not. Some activities that have a minimum age requirement may fit within society's conception of an adult activity, but that does not mean that they should result in tortious liability through negligence action. The appellant submits that the proper characteristics are the ones proposed as physical requirements of the activity, the cognitive skills of the activity, and the individual and community. The purpose behind this is to provide a more flexible approach to the adult activity doctrine that ensures that it will be ready and equipped as new sporting equipment enters the marketplace and becomes available. In an ideal world, parliament would be able to legislate in the area and be responsive to create minimum age or competence requirements as these activities arise. As this market for high-powered and fast-moving sporting equipment continues to expand, it is impossible for parliament to keep up. Council, if we agree with you that the presence of licensing or insurance is not determinative of an activity being an adult activity, are we nevertheless entitled to take those into account as factors to assist us in determining if an activity is an adult activity? Yes, similar to other statutory restrictions, they're able to inform the applicable standard of care, but they cannot dictate it. This principle has been articulated by the Supreme Court of Canada in many cases about distinguishing between a statutory duty and a civil duty. Implementing a minimum age requirement for an activity may create a statutory duty, but it does not necessarily create civil liability. It can inform, but it can't decide. And here, even if they're not determinative, if the factors of the activity being licensed or requiring insurance are relevant, and isn't it the case here that the activity of flying motorized model airplane requires neither a license nor insurance? Yes, that is correct. It does not require it. So to the extent those factors are relevant and to the extent that they're not required in the case of flying model airplanes, isn't that suggestive of flying model airplanes not being an adult activity? The difficulties behind licensing or requiring insurance for flying a model airplane, a lot of that comes down to the specific characteristics of the model plane and how it's being used. So if the respondent was competent, had the right or required competence to fly the Spitfire and flew it in the right direction, we would not be in court today. The issue comes down to the fact that she was not competent, had no experience with that specific model and flew it into the direction of the appellant's home. So although licensing and insurance can be informative, it won't dictate every situation or every activity. I'm going to go back to a question that Mr. Osseter asked a little while ago, and what I'm struggling with a little bit is the question of what knowledge the child needs to have, because I'm sure we can all think of examples where unfortunate accidents happen, and they truly are accidents where a child does something, they accidentally put the family car in gear or they pick up some sort of dangerous object and as a result, someone is badly injured. But in those scenarios, the child surely are not suggesting they're engaged in an adult activity. It is just a situation where they climbed into the car and took the break off, whatever happened. How do we distinguish between what you would consider to be accidents and circumstances where you're saying there should be civil liability? The distinguishing factor there would be the risks associated with it and the conscious choice to partake in it. So your example of a child taking the parking break off, they're not operating a motor vehicle in that instance, and here if the respondent had simply put the spitfire on a track that had a downward incline, that would be quite different than taking the remote control and launching it into the air. A lot of it comes down to the choice, the time it takes for it to happen and the circumstances around what the actual activity was. And this has been debated by some courts that have applied this doctrine on how it's important to consider what actual activity they're partaking in. So in Nashville and in Alford, it was involved with underage drinking and they held underage drinking and driving or both adult activities. But the actual act of making sure your friend gets home safe from the night out of drinking was not an adult activity. So that's similar circumstances where there were adult aspects to it, but in that case it wasn't specifically an adult activity. But the appellant submits that operation of a model airplane, launching it into the air and flying it into someone's home is an adult activity. Revisiting the test that the appellant has proposed, each criterion of this test does not have to be met in equal measures. There may be some activities that require obvious advanced motor and cognitive skills, while other activities may create serious risk to individuals and the community that this third criterion of the risk associated requires an activity to be classified as adult, even where the required motor and cognitive skills of the activity are less apparent. Council, I'm concerned that the test that you're asking just to adopt this novel test has a great deal of uncertainty to it. We have one of your critiques early on in your submission if I understood correctly was that there's uncertainty in present interpretation of the adult activity doctrine. And yet we have just clarified that the three different components that you propose should be applied to adult activity doctrine are all the more vague and uncertain and that we should think of all three but know one particular one is determinative if I understood correctly. Yes, so the appellant submits that the answer to the question of whether or not an activity is adult is yes or no. It will either be classified as adult or not based on those three criteria. And then upon making that determination, it will be up to the courts to determine whether or not the defendant breached that applicable standard of care based on his ordinary person in similar circumstances and whether the plaintiff was in any way contributing negligent. So although there's no test that will perfectly describe every issue or resolve every problem but the appellant submits that this proposed test will provide more clarity. Thank you. I see that the time is up. I believe I have one minute to make my final submissions. And we have asked you quite a few questions. So if you need an extra minute or so to tidy things up, that would be okay. Thank you very much. It is unrealistic and incompatible with public safety to allow more lenient standard for children when they partake in adult activities. Council for the Respondent has argued that there are policy rationals behind limiting the adult activity doctrine to motorized vehicles. Yet as the market for motor powered equipment continues to grow, introducing faster, more powerful and extremely dangerous products into society, there must be laws in place to ensure that participants in these risky adult activities are held responsible. It is concerning how simple it is becoming for lethal equipment to make it into the hands of children. And it is important to have laws in place to reflect these growing concerns. While it is true that many children do not have the required motor and cognitive skills to participate in adult activities, these factors do not stop them from participating in the activity and it does not release them from liability. Just as the standard of care is not lowered for a drunk driver or an elderly person who does not have the skills required to operate a motor vehicle, the standard of behavior for certain activities cannot be lowered for the immaturity of minors. The Respondent, Miss Volek, participated in an adult activity when she operated the spitfire and caused serious damage to the appellant. As Miss Volek's conduct did not meet the standard expected of a person of ordinary intelligence or prudence, she breached the applicable standard of care and is liable for her negligent conduct. As such, the appellant respectfully requests that this honorable court allow his appeal. Thank you. Thank you very much, Miss Kelly. We'll now call on Mr. Matarria to argue the second issue on behalf of the appellant. Chief Justice, Justice, when Miss Volek decided to negligently fly a heavy model plane in the direction of a stranger's home, Mr. Jones was enjoying the security of his own apartment unaware that soon after, he will need immediate medical attention to save his life. When the lower court dismissed Mr. Jones' action, it unfairly denied him compensation. And when it endorsed the view that some should enjoy a lower standard of care solely on accounts of their age, it diminished the public's trust in the law as a vehicle to secure their interests. Justice is the lower court's ed. Now, in demonstrating this, I will not argue. I want to first of all delineate what I will not argue from what I will argue. I will not argue that fault is not an important ingredient in determining negligence. I will not argue that a strict liability standard should be adopted. And I will not argue that children should never enjoy a relaxed standard of care. What we submit instead is threefold. First, that fault, specifically the standard of care, is a tool. And it is a tool that is meant to serve negligence law as a compensatory purpose. And second, that to properly achieve that function, the standard of care must be predictable and that the purely objective standard should therefore always be presumed. Now, for our third submission, we will argue that departures from that purely objective standard must remain principled, not defaulted to based on nothing but the age of the defendant. Now, Justice is when it comes to establishing the, when it comes to the first submission of establishing the compensatory purposes of negligence law, we have discussed that length in our factum in paragraphs 54 to 58. Why compensation? If I could jump in and do a terrible thing, I'm actually most interested in your third submission. And in particular, no need for you to go there. I'll read it up. But I'm at page 22 of your factum. And at page 22 of your factum, I'll probably give you a chance to get there. I'm there. Okay. What you say at page 22 of your factum is you talk about the circumstances that will justify a departure from the purely objective standard, where I think you mentioned in your third point as being a principled departure. And one of the examples that you give of a principled departure from the pure objective standard is letter A in paragraph 64, where you say, quote, the defendant is without the capacity to appreciate or meet his or her compensatory obligations. Isn't that precisely what we have here with a 10-year-old with the cognitive ability of an eight-year-old is a defendant who does not have the capacity to appreciate or meet her compensatory obligations? Well, Justice, the first off, when the trial judge engaged with the question of the child's capacity, they'd engage with it to determine not whether or not to relax or relax the standard of care or to provide a relief from reliability. She engaged with it to determine to what degree the relaxation should be given. And more so, the evidence of Dr. Piaget indicated that the child, Miss Volek, had a reduced appreciation of cause and effect and had a reduced appreciation for the well-being of others. That does not mean incapacity. And so, for example, in the case of Robert Fioron's bottom, the court held that despite the fact that the defendant suffered a stroke at the time of an accident that he caused, he was still liable because he had some degree of, some sufficient degree of control. The defendant did not establish that she lacked control entirely and was incapacitated entirely. She just simply showed that she lacked some degree of capacity. And that is not sufficient to discharge her from the standard of care. I don't want to dwell on it, but I think what I'm hearing you describe as a physical capacity in the sense that if I'm having a stroke, question becomes, am I physically incapacitated or do I have some residual physical capacity? But when I read what you yourself acknowledge is one of the principal exceptions to the purely objective standard, it says the defendant is without the capacity to appreciate. So what that goes to me is a mental capacity or is it a cognitive capacity as opposed to a physical capacity? Yeah, so when we use that language, we were referring to the case of Fiala where the Alberta Court of Appeal acknowledged that the default standard of care should be a reasonable standard of care, but that there is a backdoor for those whom the law admittedly should provide relief from reliability. And that is those individuals who can show, now the case there, focus on mental illness. But I think the principals can be extended beyond that to include even children where they can show that perhaps due to a reduced mental capacity, they are unable to appreciate entirely of their obligations or to be able to discharge them. That is a question of, that is a high threshold to meet and simply showing that the child had a reduced capacity or had a reduced appreciation for the well-being of others, that's not sufficient. And now I, Joseph Gibson. What test for capacity would you apply to this trial? Well, we would apply the test that is endorsed by the Alberta Court of Appeal in Fiala where the court said that the, that the, yes, Joseph. Where the court indicated that the required, what the defendant would have to show is a complete lack of appreciation for their obligations or a complete inability to discharge them. And I'll remind the court here that, and for example, the case of Buckley, the court emphasised that the degree of capacity matters. It's not just showing that there's some level of incapacity but that the degree of incapacity has to be so high as to relieve the child, as to relieve the defendant of liabilities. Am I correct in thinking that all of those cases involve adults? I'm sorry, I can't hear you there, Joseph. Did all of those cases involve adults? All of the cases you're saying? Right. All those cases did indeed involve adults, as far as I understand, but to say that children should be given an exceptional treatment is to misunderstand the principles and goals of negligence law. The goals of negligence law is to provide methods of reaching compensation, of shifting the loss of the plaintiff to the defendant. I sympathise with the court's position that perhaps- But isn't it also to deter certain behaviour? And so if you're talking about a child of tender years, as they would say, is there any likelihood that they would have any appreciation of the issues of liability and responsibility in a way that would cause them not to pick up the shiny plane and play with it like she had seen her mother do? That would be the furthest thing from her mind, would it not? I understand where you're coming from there, Chief Justice Wood. But the fact is that deterrence is an ancillary secondary purpose that comes along with compensation. It is not the paramount purpose of negligence law. Again, I sympathise with where the court is coming from in asking these questions because understandably we sense that to hold it someone is negligent is to condemn them or to say that they are morally culpable. But again, that is not the purpose of negligence law. Negligence law is concerned with shifting losses from the plaintiff to the defendant. And for that, it is necessary to have a consistent and predictable standard of care that allows the potential plaintiff essential members of the public to appreciate what they can and cannot get compensation for so that they are able to draft their precautions accordingly. Council for the respondent though would argue that the purpose of tort law of negligence law is to provide compensation in the face of wrongful conduct. Now it is for the back set. That's all right Justice. Well, the where the my friend opposite is suggesting there is that there needs to be some element of fault and we don't deny that fault is an important aspect of negligence law but it is it should be understood as a tool that is used to regulate what is compensable from what is not by doing so by creating a predictable method of regulating what is compensable from what is not the public are better able to understand what they can expect compensation for from what they have to build precautions against. Did I answer your question there Justice. Thank you. I don't want to All right. Thank you Justice. Now, just as I want to emphasize this point because I think it's important and I see that we are all returning to it to acknowledge the compensatory purpose of negligence law is not to say that we should move to a standard of perfection it is not to say that we should abandon fault. The place of fault and the place of the standard of care as a tool is to regulate what is compensable from what is not what injuries a person can expect to gain compensation for. Now, I know I'm essentially explaining negligence 101 to justices but what I'm trying to highlight here is that what that means for members of the public is that there are obligations and reliance. There are obligations on descendants and the plaintiffs expect that when those obligations are broken they rely on the law to secure them compensation. And again, predictability there is a very important ingredient in the standard of care in order for it to achieve that function properly. Without explaining that sorry, sorry, go ahead. No, I like to go to justice. All right. Thank you. You get to go first next time. All right. So, Mr. Metter, this predictability you're not talking about anything that would affect the way individuals conduct their lives on a day-to-day basis. It's not predictability and how the world works. It's predictability in the litigation process you're talking about. Well, justice chief justice what I'm saying here is that the standard of care because it creates obligations for the ability of the members of the public to achieve those obligations they need to be aware to some degree what they are and so consistency and what the standard of care is is an important aspect but when we allow subjective elements like the child's age intelligence and experience to enter into that analysis we suddenly shift the standard of care consistently on a case-by-case basis. So perhaps yes, I'm saying that predictability and consistency and how the standard of care would be applied in the case of litigation but we should understand the place of courts on the law in setting values that permeate throughout society that members of the public then follow. Now, sorry, Justice Robert. Council, I'm my ears are completely open to your argument that that the that a primary benefit of adherence to a purely objective standard is certainty at law. Before I was an Auguste judge and I was a merely a practitioner I would routinely be asked to give advice to my client about potential tort liability and I was greatly enabled by having consistent a consistent reasonable person test and having certainty there. Having said all that, it seems to me that sometimes certainty has to give way to justice between the parties and it seems to me here that there has to be some some allowance or some some ability to move off the noble and very useful goal of consistency and applying the reasonable person standard and recognize that as between this child who I suspect very much did not understand the consequences of her conduct and this defendant and sorry and this plaintiff but there has to be some justice in there isn't isn't it the case that sometimes justice compels us to deviate from a rule or a principle which would otherwise be a consistently applying rule and principle. I completely empathize and agree justice. Yes there should be circumstances that allow where consistency should be sacrificed for the sake of fairness and justice. Yes we agree but to base that solely on age and then to by default when the child is young to then reduce the standard of care that's not a principal approach instead it should be on the defendant to establish that they allow capacity it should be on the defendant to establish that the the plaintiff was aware or ought to have been aware that the child was present but to simply say that the child because they are a child they deserve to have a lower standard of care well that's just jumping the gun too quickly. Now this is why we provide the court with a path we provide the court the court with a balanced path that is based on those principles and concerns we argue in paragraph 69 of our of our factum that there are two potential grounds to depart from a purely objective stand and that is to demonstrate that the defendant should demonstrate in capacity or that the defendant would have to demonstrate that there's some sort of no ability between that the that the plaintiff was aware of the presence of the defendant doing so would enable us to have a more just departure from the purely objective stand does that answer your question just to start with wonderful now I want to if we were to adopt your new standard that you're suggesting then that the defendant would have to prove a lack of capacity it's would we have to send this case back for retrial then because that would be a brand new standard for the defendant to feel like they had to for the defendant to have to be that is exactly what we are asking for justice we are asking for the supreme mood court of del hause is the highest court in the land to declare what the law is clarify it to regulate properly and not on the basis of age when the purely objective standard may be departed from and then to remit the the case back to the lower courts to enable the a trial judge to engage with the full facts under the new law we are not asking the court here to declare that Ms. Volek lacked capacity or or had capacity where we are asking for a clarification on the law what is the I think you were asked this question and maybe I wasn't paying as close attention to your answer as I should have been how again are you defining capacity because capacity can mean different things to different people as a matter of law children don't have the capacity to contract but then there's also issues of capacity in terms of medical consent where children that might not have the capacity to contract might well have the capacity to provide consent so how do you define it for purposes of this tort we would argue that the court should borrow the same analysis used in the Alberta court of appeal case in Fiala where the purely objective standard was presumed and then it was it was only departed from when the defendant was able to show one of two things either incapacity in terms of inability to appreciate their obligations again negligence law is about compensation it's about obligations about relationships and so what we ask is that the the defendant have to show that they're that they are incapacitated from appreciating their duty or discharging entirely perhaps their their young age compels them not to not not to be able to even after they appreciate their their duty to even be able to discharge it so we would borrow from Fiala now I want to dive deeply into more deeply into the question of capacity because I see that the justices are are are concerned with it a lot the justification for using lack of capacity instead of age as the logical as the grounds to depart from the purely objective standard is precisely because it it matches the logical end of the concerns that courts have with children instead of simply generalizing relief from liability to age we would have to ask the defendant to to dive deeper into that and show in capacity as opposed to just simply presuming it on account of age and and this of course as I said in the case of Fiala and in the case of Roberts and Buckley this would bring negligence law when it comes to children more in line with other areas where the where the law departs from the purely objective standard this seems to take us very very far away from the objective standard as said out in John versus many more from the past for expert evidence in every single case and it sounds like an entirely subjective standard that we've come to I'm sorry Justice I couldn't hear the last bit there oh I'm sorry it sounds like you are promoting an entirely subjective standard on which for each in every case we would have to bring evidence of capacity or lack thereof as opposed to looking to age intelligence and experience as a general signpost well what we are suggesting there is yes subjective subjective elements would have to be considered for this test you're correct there Justice but only if the defendant wishes to raise it and the owners would be there on the defendant to discharge that that argument and only and only in the cases involving children now Justice I see that I'm running out of time and so with with your permission I'd like to move on to summarizing my arguments and making your a the remedy request from the court if if that pleases the court fine go ahead thank you Justice Justice's negligence law is about creating a regime of compensation whereby plaintiffs and defendants have predictable and uniform obligations that govern their relationships as members of the public the obligation on the defendant is to act as a reasonable person would and the plaintiff relies on the law to provide compensation where this is not where this is not the case some courts have understandably shied away from enforcing the predictable and balanced purely objective standard believing that their choice was limited to a binary the purely objective standard all the time or none of the time we are proposing a third balanced principled way that relaxing the purely objective standard should be done in a in a manner that references the defendant's capacity and that references their relationship to the plaintiff not solely on account of age we therefore request that the court declare this principled approach law and to order a retrial for determined liability under that approach thank you Justice thank you Mr. Mattaria for your submissions we will now call upon the respondents I believe Ms. Donovan you will be speaking to the first issue so whenever you're ready thank you good evening my lords and my lady as previously mentioned my name is Shavon Donovan and I am appearing on behalf of the respondent Ms. Eileen Bolik this appeal is about ensuring that the law continues to afford children the benefit of recognizing their diminished capacity for taking care in certain situations by not imposing an objective standard of care the first issue on appeal requires this honorable court to determine whether the adult activity doctrine applies to the act of flying a model airplane and more specifically whether a child should be held to an elevated standard of care when they are flying a model airplane and by extension when they are participating in other similar activities the Nova Scotia Supreme Court in choosing to not apply the adult activity doctrine when establishing the standard of care to be met by Ms. Bolik in her operation of the Spitfire model airplane correctly adhered to the legal limitations of this uncertain doctrine the adult activity doctrine as mentioned by my friend stands for the premise that when a child engages in certain activities that may be classified as adult they will be held to an elevated standard of care this is an exception to the general rule in negligence law that one must account for a child's age intelligence and experience when applying the reasonable person test Council if I can jump in I know you're not there yet but the part of your fact and that really grabbed my attention was your argument that flying a model airplane is what you describe as fundamentally different from the operation of a motor vehicle what we have here is a Spitfire that we're told flies in excess of 160 kilometers an hour the fastest cars on the by-high here in Halifax are not doing 160 kilometers an hour it is propelled by a powerful gas turbine engine it is made of fiberglass weighs four and a half kilograms and has a five foot wingspan that's a four and a half kilogram fiberglass motorized beast coming at me at more than 160 kilometers an hour isn't that a must isn't that a motorized vehicle while your statements about the Spitfire are accurate it is worth noting that there are a multitude of types of model airplanes the model airplane which Ms. Bolik was used to flying was a small styrofoam body there needs to be a clear delineation between non-adult and adult objects if this court is willing to group all model airplanes into the same category then there is no way for a child to know whether they're operating an adult object or a child's object which directly opposes the full availability sorry to interrupt but is this case about flying model airplanes or is this case about flying something called a spitfire that's coming at me 160 kilometers an hour and weighs four and a half kilograms the respondents would submit that this case is about flying model airplanes as an entire group because if the court is willing to expand the doctrine to include an entire group of objects then it needs to be willing to do the same for other objects and the court needs to look not to the severity of the injury in this particular case when applying the doctrine but rather the likelihood and the probability of an injury occurring I don't want to believe at the point but personally I would rather have an ATV come at me or I'd rather have a motorized scooter come at me than a spitfire it just feels to me like what we're talking about here is very much a motor vehicle very much a motorized activity certainly your friend opposite council for the first appellant describes it and I think accurately as a lethal weapon the respondents would disagree with that categorization the spitfire does have the potential to cause bodily harm which it did in this particular accident however a number of objects if used improperly can cause quote unquote lethal harm to an individual a baseball bat could cause lethal harm to an individual if used improperly so I don't believe that the categorization of a lethal weapon in this case is relevant to whether model airplanes are encompassed in the adult activity doctrine thank you council so council when you're identifying what you say the test is I'm looking over I think it's a paragraph 27 of your factum it seems to me that you're focusing less on the risk of harm in your test and more on the I'll use the word capacity not intended to be mental capacity but the capacity of the of the young person to engage in the activity am I reading that correctly the respondents position is that a more accurate description for what constitutes an adult activity is one that possesses a minimum confidence or minimum skill level to operate it which takes into account the heightened and physical pardon me heightened physical and cognitive capacities deemed to be necessary by the appellants but only in scenarios whereby for example a legislative or regulatory body has deemed it to be necessary to carry out the activity in this case it was folic was not required by the legislature or by the wings of fury club to undergo any training or obtain any sort of license to ensure that she possessed a minimum level of skill so an activity like downhill skiing could never be an adult activity because there's no minimum age is that correct within the context of the adult activity doctrine it is the respondents submission that it should only apply to motorized vehicles so no not other dangerous things just motorized vehicles what's your rationale for that for drawing the line there the law needs to be clear and distinct to ensure that there is no lack of clarity in whether or not a child is engaging in an activity to which they will be held to an objective standard the case of pope was decided by the respondents submission incorrectly however the judge stated in that case that he would have found the defendant guilty whether he applied the objective standard or the well-accepted approach outlined in mckelis from the etches whereby one takes into account a child's age experience and intelligence when applying the reasonable person test so it is this respondents submission that for activities such as downhill skiing the test established in mckelis from the etches is the appropriate one so using a bow and arrow or a rifle would not be an adult activity in your view because not a motorized vehicle I realize there's likely minimum age requirements but that's only part of the equation from your point of view right again I would submit or the respondents would submit excuse me that those activities would be well equipped to be addressed under the standard set out in mckelis from the etches taking into account the age intelligence and experience of the defendant there are two fundamental concepts that the court must recognize in order to make a proper determination in the appeal this evening the first is that operating a model airplane as I mentioned is not an adult activity there is no minimum threshold for competence in operating the model airplane there's no licensing or insurance scheme and it is an activity that is enjoyed by enthusiasts of varying ages Council leave Council Council Oh sorry go ahead Justice Gibson Council so since you mentioned the licensing and insurance aren't those arbitrary distinctions when it comes to whether it's an adult activity or not and I'm sorry I couldn't quite hear you would you mind repeating the end of that Oh aren't licensing and insurance arbitrary distinctions in the sense of which activities they apply to yes that well in the sense of whether we should use them as a test the respondents would submit that they should not be viewed as a test but rather as indicators that can favor in terms of an adult activity the presence of a licensing requirement has not been deemed to be necessary for the doctrine to apply however it can be indicative of the level of care and competency that is required of an activity which can in turn indicate whether it is one of adult proportions so I heard you say clearly that it should only be motorized vehicles and I would like an explanation of how this airplane is not a motorized vehicle and what is a significant distinction in law in your view absolutely motor vehicles when compared with model airplanes regardless of the size of the model airplane pose far greater and more severe associated risks to the public motor vehicles have the ability to carry passengers they are also far more likely to encounter other motor vehicles whether it's a car on a highway or an ATV on a dirt road but most importantly in the respondents view is the fact that the number of accidents that are caused by motor vehicles is astronomically higher than those that are caused by model airplanes again the court must look not to the severity of the resulting injury in this particular case but rather the likelihood of injury resulting from the activities which this doctrine is applied to but the likelihood of injury from this particular model of airplane is very high I think you would agree with me if used incorrectly yes if used incorrectly yes so if it's the nature of the vehicle in itself I can't see that it matters maybe you can explain why it would matter whether it carries passengers or not if it is essentially a lethal weapon again it is not about the severity of one particular injury but rather the broad risk to the general public model airplanes do not pose an excessive risk to the public and the fact that they have not been legislated is indicative of this fact the government prioritizes the risks that they need to address and regulate and that is why for example ATVs and cars are regulated whereas model airplanes are not thank you council I appreciate that you characterize the activity in question as being flying model airplanes generally if this bench instead characterizes the activity in question as being the flying of spitfires in terms of in terms of this bench determining next whether the flying of spitfires is an adult activity is it open to us and relevant for us to look at the evidence here which is that the only ones in this flying club who flew spitfires were adults again that may be the practice in this particular club however it is not mandated in the club or per the legislature that only adults can fly this particular model airplane so the respondents would submit that no that's not a relevant consideration thank you the second thing that this court must recognize is the notion that the doctrine should be refined rather than expanded the doctrine has traditionally and most commonly been applied to scenarios involving operation of a motorized vehicle none of the underlying policy rationales most notably the reasonable expectations of the community weren't broadening the doctrine to expand and include such a wide range of activities the adult activity doctrine by virtue of its very name applies to activities that can be categorized as adults this is a categorization which the court has never previously defined counsel for the appellant submits that the defining characteristics of an adult activity are threefold physical requirements mental capacity and the associated risks both individual and community wide respectfully these cannot be said to be defining characteristics of what makes an adult activity this is for the following reasons though advanced motor skills and spatial awareness may be commonalities between operating a model airplane and for example operating a motor vehicle they are also present in a number of other activities that cannot be said to be adults playing baseball riding a bike these are activities which possess some level of physical requirements yet I'm sure this court would agree they are not viewed in the eyes of the law or of the general public as being adult in nature similarly the requirements of a heightened cognitive capacity does not automatically turn an activity into one of adult proportions the need to react to other participants surrounding objects and unexpected distractions are present in a number of activities that are commonly enjoyed by children many sports and common playground games possess these very requirements the manner in which counsel for the appellant attempts to define adult activities risks conflating the notion of adult activities with dangerous activities an activity cannot be said to be adult simply because it poses some inherent danger to an individual or member of the public while they may overlap in some circumstances they cannot be said to coexist in every scenario children playing for example red rover on a playground pose a far greater risk to themselves and others than an adult who is doing their taxes or voting both of which are uniquely adult activities by the appellant's characterization activities such as playing frisbee or playing paintball could be categorized as adult activities under the law this would unnecessarily hold children to an elevated standard of care which they are arguably unable to attain as I mentioned a more apt definition for activities that may be categorized as adult would be those that have a minimum threshold for competency in carrying out the activity safely the requirement of a license hasn't been deemed to be an Ms. Donovan yes Chief Justice I don't think you've said this but I almost get the sense that you think we should abolish the exemption the adult activity exemption and fall back on the traditional assessment the objective assessment of conduct and in relation to activities by defining it in the way you have with motor vehicles or motorized vehicles you've acknowledged there's all kinds of other potentially risky activity that you said could be adequately dealt with under the under the broader test is that what you're telling us is we really should get rid of this completely the respondents are not advocating for a complete abolition of the doctrine rather a refinement it has been applied very infrequently in the past for a good reason it is unclear and there is no clearly defined test the activities that you've mentioned have been dealt with up until now with the traditional standard established in McKellis from the etches and the respondents would submit that there is no reason policy or factual in this particular case to expand the doctrine does that answer your question Chief Justice Yes I think it does thank you thank you Council there's just a little bit of time left and I I wanted to take you to to something that I'm grappling with and and precisely it's a paragraph 56 of your fact and the heading you let you list a heading number four you say the doctrine should only be applicable to scenarios in which both parties were actively engaged in the activity the point you're making here is that although the defendant was engaged in the activity of flying a model airplane the plaintiff was was not engaged in that in that activity and for that reason you're saying that the doctrine shouldn't apply I guess I'd welcome some clarification at that point because if we accept as I think you do that a child who is driving a motor vehicle in the true sense might very well engage the adult doctrine if the child who engages the motor vehicle if the 13 year old who gets in the car and drives and hits a pedestrian I well that's the circumstance where the adult doctrine would apply but the pedestrian is not engaged in the activity of driving a motor vehicle so so I see an inconsistency there but maybe some maybe some clarification that would be helpful absolutely so the respondents are advocating for a refinement of the doctrine in that it would only apply to scenarios whereby both parties are actively engaged in the circumstance that you presented the respondents would submit that under the standard established in the Kellestrom the etches that child would likely be held liable the enhanced standard of care is not a necessary prerequisite to holding children liable where their actions result in bodily harm to others if that answers your question or yeah so I think what I'm hearing you say is that let's use these facts as an example I think what I'm hearing you say is that in this instance since the activity as you would characterize was flying a model airplane since the plane of sorry since the defendant was engaged in flying a model airplane but since the plaintiff was not but that that reason alone should preclude us from applying the adults doctrine the respondents would submit that it is not that reason alone there is a multitude of reasons that is one of them however we are advocating that the doctrine only apply to scenarios whereby both parties are engaged if this court chooses to endorse the doctrine in the case at bar whereby only one party was engaged the doctrine will include a breadth of scenarios it will become far too over encompassing well why would it be acceptable to apply the doctrine in a case where they're side by side flying model airplanes but not apply the doctrine in a case where one person's flying the airplane the other one is relaxing in his home the doctrine needs to be refined the manner in which it currently exists poses far too much room for question and lack of clarity in its application the scenario you suggest whereby two airplanes are flying side by side the only circumstance in which the adult activity doctrine would apply then is if both model airplanes hit the other operators in that circumstance perhaps there is merit to that logical conclusion however the respondents submit that the doctrine should apply only to scenarios whereby both parties are actively engaged okay thanks council thank you but only when it's all but only when it's children involved but not when it's adults involved so I understand that I believe the adults would be held to the traditional objective standard that is typical in negligence law thank you the court has an opportunity in the case at bar to finally determine the parameters of the adult activity doctrine expanding the doctrine outside the realm of motor vehicles would have adverse effects on the law as well as the children who function within it though the accident that occurred on April 1st 2017 was unfortunate Ms. Volick was held to the correct standard of care and the verdict reached by the Nova Scotia Supreme Court was just and reasonable to hold Ms. Volick to any other standard would not only be antithetical to proper application of the law but would also represent an unnecessary regression in the realm of negligence law provided there are no further questions from the bench that concludes my submissions thank you very much Ms. Donovan thank you we'll now call upon Mr. Boyerla to argue the second issue on behalf of the respondents thank you good evening my lords and my lady my name is Sam Boyerla as I mentioned earlier I represent the respondent Ms. Volick and I will be speaking to the second issue whether the court below aired and considering the respondents age intelligence and experience in determining the applicable standard of care deciding this issue on appeal asks this honorable court to answer one question whether it is appropriate to hold some people children in this case to a standard that will at least some of the time be impossible for them to attain the appellant is asking this court to impose on children a standard that requires cognitive abilities that some children simply do not have the respondent simply asks this honorable court to leave the common law test undisturbed and allow for a more nuanced standard of care applicable to children one that takes into account a child's individual age intelligence and experience and thus never requires the impossible of a child by asking them to anticipate risks that they cannot anticipate in the following 19 minutes I plan to focus on two points the first is simply that the court below was correct in considering the respondents age and intelligence and experience because that's been the applicable common law test since 1956 further I will draw this court's attention to the considerations that are applicable when a court is considering changing the common law and I will show that those considerations fail to indicate that a change to the common law is warranted the second point I would like to speak about is a brief discussion of the relevant purposes of tort law an analysis of the relevant purposes of tort law will show that they're these purposes are more in line with the current test and a change to the criteria proposed by the appellant would bring the test farther away from these purposes as opposed to closer I'll now turn to my to my first point in 1956 the Supreme Court of Canada was faced with a very similar question in McKellister-Meneches in that case the unanimous court decisively said that the appropriate consideration when determining the standard of care to be applied to a child is to consider that child's individual age intelligence and experience this test is not ambiguous and it has been consistently applied since courts particularly courts of appeal are of course entitled to change the common law under appropriate circumstances this question must be approached with extreme caution as the changes to the common law may have unintended effects so council if I can interrupt if the if the test that has been around for 60 plus years whatever the time period is is so simple why did this exemption the adult exemption show up what was the problem that needed to be addressed from the course point of view to introduce it into the calculation my lord are you referring to the exemption that was addressed by my colleague yes I guess I am okay that I the respondent would submit that that exemption was not a response to the test not being simple it was simply a response to the test being unjust in some situations in situations where a child cannot rightly be held to the standard of a child because they're engaging in an activity that is so far removed from what we expect children to be doing we will hold them to a uniform objective standard because simply justice requires it but that's not a comment on the simplicity of the test that's a comment on its fairness does that answer your question chief justice yes it does thank you thank you um so I'm probably nowhere in the zone of where you are in your orals but but I'm at in your factum I'm at paragraphs 86 to 88 okay I'll give you a chance to catch up there paragraphs 86 to 88 oh I would I would welcome some elaboration from you it appears to me that what you're doing in these paragraphs is that you are importing the principle of the best interests of the child which to me is a concept that is primarily manifest in family law and that you're taking that primarily family law concept of best interests of child and you're bringing it here into a tort analysis is that a fair characterization of what you're doing my lord I would acknowledge that the wording used is perhaps confusingly and coincidentally the same as a concept commonly used in family law the best interests of the child and indeed there is probably a lot of overlap between the two concepts but but this best interests of the child is is a more is simply imported from the the treaty which is cited which is the convention on the rights of the child and specifically article three section one of that treaty simply says that courts and tribunals tribunals are are under an obligation to consider paramountly just the best interests of the child when they're coming to their decisions and indeed of course Canada is a signatory to this treaty where I struggle is that to me the best interest of the child test that immersion family law was a recognition that the children were not parties to the dispute in fact they were innocent persons to the dispute and that they were uniquely vulnerable in the dispute and for that reason the test emerged you know the best interests of the child test and when I look at the convention on the rights of the child and when I look at the paragraph you cited it seems to be more consistent with that in the sense that what it refers to are actions concerning children undertaken by public or private social welfare institutions courts of law administrative authorities or legislative bodies in other words it's not clear to me that the best interests of the child concept is applicable in a situation where one of the you know where the alleged tort user as a child and directly implicated and involved I see a confusion my lord the I'd like to answer in two ways first of all I think the the list that you've read out is those are all distinct areas where we need to take into account the best interests of the child social welfare institutions legislative bodies and another one courts of law and further a larger reading of the of the treaty as a whole will note that a lot of the treaty is concerned with children being treated fairly in criminal courts and although of course a civil court where the child is the alleged tort feeser is not the same thing as a criminal court there are similarities in that they are the subject of the wrong doing they they are the the party who is being alleged of having done something wrong so I think the the treaty including this section and treaty as a whole speaks to not only when children are innocent by standards but also when children are alleged to have done something wrong I just think that the child is sorry no go ahead go ahead Justice Gibson the best interest of the child it seems to me would be to never ever be found liable in a civil court and so I think that that's a bit of a conundrum here here we have a man who was innocently in his apartment building and low and behold a monstrous device crashes through at females how fast per hour at the time uh injures him and the best interest of the child would say you need to go uncompensated because this was a child who did it I'd be interested in your response to that the the respondent would would not submit that the best interests of the child are that they would never be liable indeed sometimes children for the benefit of themselves and for the benefit of others should be found liable the best interests of the child are to consider that child's specific age intelligence and experience in order to craft a nuanced standard of care that's fair to that particular child and that is that is what is in the best interest of the child so I would like to take you to a different section of your spectrum and that is paragraph 72 you you discussed why we will adults to a uniform standard and I you say it's because it's appropriate to assume that adults have had a wide variety of experiences do you have a source for that it's simply appears to the respondent that the that of adults after they've lived 20 years have had a wide variety of experiences so no I do not have a specific source for that I would have thought the reason we have an objective standard when it comes to adults is because we want consistency in law and so it actually doesn't matter whether someone's experience for instance is different from the person next to them it's that we want a uniformity in law so that we have predictability in law and so that someone can't claim well I just didn't understand this and so I'm not sure why the same would not apply to children so I believe excuse me could you repeat your question yes if you turn to paragraph 72 yeah you discuss holding at there's a good reason I think you're saying that we hold adults through a uniform standard and that is because we assume that they have had a wide variety of experiences and can accurately make predictions about the results of their options is that why we have a uniform standard when it comes to adults or does it go back to bond versus men log that we need to assess people according to the reasonable person standard and not according to a standard that varies person to person because that would be so subjective and it would require evidence in each the circumstance doesn't that apply to children if I'm correct in thinking that that's why we have an objective standard that applies to adults why is it any different for children I understand your question I would answer in in two ways first children are unique when compared to adults because their their difference in age intelligence and experience can more drastically affect their ability to perceive risk in other words a 10 year old is very different than a 12 year old when comparing a 35 year old to a 37 year old and likewise the amount of experience they've had as a proportion of their life and therefore the ability to understand risks is vastly different when when we're looking at children and so to look at to look at adults perhaps the reason you've brought up justice Gibson is that it's simply more predictable and uniform standard and the respondent would agree that that makes sense for adults but for children justice requires that a more nuanced standard be imposed because the differences between children based on those three criteria only are so great thank you I'll return now to the to the test that the Supreme Court has has laid out in order to tell courts of appeal when it is the appropriate time to change the common law and that and that test was laid out in Friedman equity developments and final note council before you go there and I'm sorry I know you drifted gears and you're about to go there but I'm struggling with a question that perhaps you can tell me is not even relevant I think about poor Mr. Jones mining his own business in his place of residence where anybody would expect to feel perfectly safe and having done nothing to invite this catastrophe on himself he finds himself with lacerated spleen a punctured lung internal bleeding a spleen that has to be removed he only lives because of prompt medical attention and I'm struggling to find an explanation for Mr. Jones as to why he would be compensated if the tort freezer was an adult but he's not compensated because the tort freezer was a child when frankly to Mr. Jones it doesn't matter who the tort freezer is the entries to him are so very real and it's the activity and it's probably a question better put to your partner to your friend but that's the part I'm struggling with and I can answer your question I'll answer it in two ways the first one is that the respondent is not submitting that Mr. Jones should not be compensated the respondent is only submitting that the respondent herself Ms. Volek is not the appropriate defendant there may be another defendant who is the appropriate defendant perhaps the club the wings of fury club perhaps they should have put up a net that would stop planes from hitting the building of course that's not the issue on appeal but it's a it's a relevant consideration Mr. Jones is not barred from consideration from compensation that the second way to answer your question is that the respondent Ms. Volek is not is not the tort fees are she's not the tort fees are because she did not commit a tort torts are committed when somebody does something wrong and because the respondent could not understand based on the medical evidence could not understand do not have the capacity to perceive the risks associated with flying this heavier model airplane heavier than the one she was used to flying because she could not perceive the risks she could not have done anything to avoid them and therefore she did she didn't do anything wrong within any sort of real meaning of the word wrong does that answer your question my lord thank you I'll just I see that I have five minutes left so I will speak to this test laid out in by the supreme court in freedman equities so there are three possible reasons that the supreme court has told us it's appropriate to change the common law and I'll remind the court that that is what we're asking to do that that is what the appellant is asking to do is to change the common law the first one is when it's necessary to keep the common law and step with society the second one is to clarify a legal principle and the third one is to resolve an inconsistency I'll just be very briefly to the second one first because there's clearly no need to the respondent submits there's no need to clarify a legal principle because this this test has been applied consistency consistently throughout the intervening 60 plus years as this court has already identified but but next I'll turn to when it's necessary to change a common law test to keep it in line society the respondent submits that it was readily apparent in 1956 as it is today that children's age intelligence and experience are relevant factors to consider when assessing the applicable standard of care and the respondent would further submit that if anything scientific knowledge particularly advances in neuroscience have brought society in line with the test as opposed to bringing it further away and further these scientific developments make the test more easily applicable there are more objective standardized ways to measure a child's relative intelligence and it makes the task that courts have in front of them much easier when task was finding the applicable standard of care for an individual child and and I'll I'll I'll speak briefly and also to whether it's necessary to remove an inconsistency the respondent submits that there are no inconsistencies in this area of the common law and that this is simply a logical test that considers salient features of children when determining the standard of care but in the alternative if this court were to find that this is an inconsistency the respondent submits to two separate reasons that I've already briefly touched on but I'll highlight them again if I could jump in counsel and go completely off top and go completely off topic your your friend opposite appellant number two made what I thought was a very persuasive argument which is that certainty in law is to be desired and as you heard me say in private practice I very much depended on the being certainty in law so that I could give advice to my clients so that they could make decisions based on predictable outcomes and the purely objective standard in my estimation does if it doesn't do anything else it does serve it does serve certainty in law what what what would you say and reply to the argument made by counsel opposite on that point in reply to the the predictability point that you're that you're addressing that my friend has made I the respondent would would submit that if predictability is the desired outcome the logical thing to do would be to not change the common law because nothing nothing would be more unpredictable than a change to the common law that a common law test that has been in effect for more than 60 years so a not not changing the test and using the criteria laid out in mckelestrum would be much more predictable than than changing the test does that answer your question thank you and I see that I only have one one minute left perhaps less so I'll just conclude very briefly I just want to conclude by reminding this honorable court that the respondent requests that this that the the the respondent is not requesting that this court make a change to the common law the appellant is requesting change changes to the common law need to be need to be done with the utmost caution and only in the clearest circumstances and so absent clear reasons why the applicable test is not serving the ends of justice the respondent submits that it should not be changed and this appeal must be dismissed subject to any questions those are my submissions thank you very much Mr. Boyerla under the that so that concludes the submissions on behalf of the respondent under the rules that cover in the Supreme Court of Dalhousie Appellants Council does have the opportunity for a brief rebuttal if they think that's necessary so I will ask Appellants Council if they wish to make a few comments in rebuttal yes please thank you for this opportunity okay in regards to issue one the appellant submits that council for the respondent is wrongly focused on legislated restrictions around an activity and whether or not that activity involves a motor vehicle rather than the actual characteristics of the activity it is not up to licensing regimes to determine whether activities are classified as adults rather when a particular activity creates an increased risk for torches liability it is common for licensing programs to arise it is torches liability that defines which activities are licensed not the other way around council for the respondent classified voting as an adult activity because it is solely partaken by adults the appellant completely agrees that voting fits into society's conception of an adult activity yet this does not mean that failing to vote should be classified as negligent conduct setting aside all personal beliefs about the upcoming American election the appellant is not arguing that individuals should be held viable on negligence for failing to vote or properly do one's taxes the appellant is simply asking this honorable court to adopt the novel flexible and clearly articulated test for determining whether an activity should be classified as adult for torches liability finally the appellant submits that the reason that this doctrine has not been used extensively in previous years is due to lack of clarity surrounding the doctrine the appellant invites this honorable court to provide clarity to ensure that this doctrine can be applied in its intended manner in the future for these reasons and the reasons stated in our factum the appellant requests that this case be remitted to the trial judge with the clarification of the law thank you thank you miss kelly so that concludes the submissions of council on on the moot now the the panel members will retire hopefully to a separate place to discuss the submissions which we've received and make a determination as to who ought to receive the the awards tonight the Smith shield and the Leonard day kit's prize I estimated at the beginning that we would probably take sort of 10 minutes or so submissions of council hasn't made the job any easier but we'll do our best to try and get back in a in a timely fashion so we'll adjourn for now we'll call upon the court prior to adjourn and then we'll retire to consider the matter oh yay this sitting of the supreme moot court of dow housey is now in a brief adjournment God save the dean oh yay oh yay the supreme moot court of dow housey is now back in session God save the dean ah all right so we have been announced thank you look thank you everyone thank you council for your submissions what I'm going to do is just make a few comments about what we heard heard tonight which was top quality as as I would have expected and following that I would also just indicate that the panel members the format isn't great with the virtual appeal and normally there would be more of an opportunity to give individual feedback perhaps even in in individual discussions we're all more than willing to give feedback to any of the mooters and what I would say is if you're interested in talking to any one of us um about about your performance then we're happy to do that and maybe the best way is to go through you know someone at the law school Mike deterbite or someone there and they can put you in touch with us in terms of in terms of the comments we have about the mooting everybody was strong you kept well to your time allocations because it's often in a time constraint it's often easy particularly where every one of you had questions that you had to deal with you managed to get everything out that you wanted to in the time that was allocated we thought that the response to questions was good a couple of you even took the time to ask if your response answered the question which is which is good it's a it's a nice thing to do because sometimes it doesn't and it invites the the judge to ask follow-up questions if need be the the attributes that we saw that we liked in particular were people that sort of came out strong had a good opening statement and there were a number of those that that were given and that was that was good and a good closing to wrap it all up in just a few sentences is always good I think doing it virtually did have one advantage because historically what you would see in moots is people that would be spending a lot of time looking down at their notes but when you can have your notes on your screen where the camera is that we didn't see that at all so really good eye contact if that's what you would call it in the virtual we really got the sense that you were engaged and and and weren't reliant on notes I have no idea if you were or not but it certainly didn't appear that way I'm just going to check my notes and see if there's any other specific comments that need to be made the presentation styles for all of you were were really really good well prepared you know those are those are the the comments I have and I think they they apply pretty much across the board I'll just briefly ask if either of my panel members have anything they want to add right well I thought you all did excellently and the fact that we were in our breakout room for an extended period of time suggests that the decision wasn't easy for us because you were all such strong users yeah I think that's a that's a very good comment thanks thanks very much for that now comes the hard part I know people are anxious to know the who received which award I'll say this for some reason Professor Deterba I didn't mention this in his introductory comments but I participated in the Smith Shield when I was a law student back in I think it would have been the fall of 1981 and I received the Leonard Kitts Award which is the award for those that don't get the Smith Shield so I have a particular affinity for the Leonard Kitts Award I think it's actually the the prime award of the night and so so tonight the individuals that we thought deserved it that really is a reward that you should take pride in I know it might be disappointing in the sense that you're not getting the Smith Shield but I think it is it's still you've accomplished a lot and to get here in your performance tonight was was exceptional and so the winners of the Kitts Award are Samuel Boyola and Jezam Mataria so congratulations gentlemen well done well done that means of course that the Smith Shield will go to Siobhan Donovan and Nicole Kelly it was a very tough decision but I would say a couple of comments may be about the winners Miss Kelly the panel thought to a person that your factum was very well done that was this we really were very impressed with the factum plain language well written and so that was a real feather in your cap in our in our consideration and Miss Donovan we really were impressed with your just presentation your confidence we thought you had a good strong opening and a actually a good strong closing and and so you clearly were an excellent mooter and of course that's why you ended up well where you ended up so well congratulations to everyone from top to bottom it was not an easy choice it was it was very close but in the in the end the panel was unanimous in in our conclusion so thanks very much for your submissions thank you very much so I think we're going to hear closing comments from Professor Dutertebide or maybe we won't and can everybody hear me yes good well I guess that's a wrap everybody congratulations to all four of our mooters I guess I would just point out to Justice Wood that I did say that some of the outstanding jurists in Canada have been former participants in the Smith's Shield and I guess I would certainly put you all right all right you're off the hook then that's okay so obviously the caliber of mooting here this evening has been truly extraordinary and frankly humbling to somebody like me and I want to thank our bench who of course did such a fabulous job and also the organizers for their organization and hard work in very difficult circumstances this year but we did it and we're going to do it again next year hopefully back in person so thank you everybody online for joining us and have a good night thank you everybody and congratulations of course to all of the mooters