Mediation request denied in moose court case

Andrew
Andrew Robinson
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Class-action lawyer hopes new premier will want to avoid embarrassing trial

Two sides set to argue in court this spring about whether the provincial government owes anything to those who have been injured in moose-vehicle accidents will not be forced to engage in  mediation.

Lawyers Jessica Dellow and Ches Crosbie prepare for the arrival of Justice Valerie Marshall in Newfoundland and Labrador Supreme Court Friday in St. John’s.

Newfoundland and Labrador Supreme Court Justice Valerie Marshall dismissed St. John’s lawyer Ches Crosbie’s application to have the government take part in mediation talks in the presence of a third party.

Marshall concluded that in order for mediation to get the desired result for plaintiffs in the class-action lawsuit against the government, lawyers for the province would need to make concessions they have not shown a willingness to make.

Marshall ruled it would not be useful to order mediation between the two parties, as the likelihood of success would be negligible.

Crosbie is attempting to prove in court that the government was negligent in failing to take measures to prevent accidents over a 10-year period involving motorists and moose on provincial highways.

Crosbie argued Friday that mandatory mediation was an issue of access to justice. He said it would give the two sides the opportunity to explore matters with a third party to help clarify issues.

But government lawyer Peter Ralph argued mediation would not make efficient use of legal resources. He also noted the government was not attempting to put barriers in place to frustrate the legal process.

While an appeal has been filed  concerning an earlier decision to allow a 10-year limitation period instead of two years, as the government had hoped for, Ralph noted a stay to halt legal proceedings was not part of the appeal.

The two-week trial is scheduled to begin April 1.

Speaking to reporters following Marshall’s decision, Crosbie said his clients were disappointed.

He also suggested it would be in the best interest of the province’s new premier, Tom Marshall (no relation to Justice Marshall), to avoid letting the class-action lawsuit go to trial.

“This government is going to be facing weeks of trial in which one embarrassing revelation after another is going to come to light,” he said, “risking derailing Mr. Marshall’s policy agenda over the next few months. He needs to think long and hard whether he wants to risk that and wants to risk the embarrassment of losing the trial as well.”

Marshall was sworn in as premier Friday morning at Government House in St. John’s, replacing Kathy Dunderdale, who announced her plans to resign on Wednesday.

Dunderdale was subpoenaed last year as part of the class-action lawsuit. Asked Friday if her resignation affects whether or not she will be asked to testify in the trial, Crosbie said that will depend on the contents of disclosure he is still waiting to receive from the government.

“We could make a decision on that if we could ever get to see the report that the defendant, the government, has gotten now from an expert, which goes to the policy issues, but they’ve had that for weeks now and still not given it to us, and I need that to decide whether (Dunderdale) has a role in the testifying or she doesn’t.”

arobinson@thetelegram.com

Twitter: @TeleAndrew

Organizations: Government House

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  • Paul
    January 25, 2014 - 12:07

    I really can't see anything coming out of this lawsuit...especially as a large group...as a class action suit they can't be looking at individual cases, and how can anyone who's accident had anything to do with their own driving, blame government for putting the moose in front of them...for this to succeed, the government would have to be found liable for introducing moose to the island, and for not preventing them from crossing the roads...I don't see that being feasible...you can not fence all the roads , end of story. even if you fenced some, there will be other areas were moose will cross...and as for blaming them for introduction of moose 100 years ago, that was before cars...so, you might as well blame the car companies for bringing in cars...

    • BackontheRock
      January 26, 2014 - 00:11

      While I agree that NL drivers could certainly be a lot more careful on moose-infested highways, I have to point out that at night, especially pre-dawn, moose are an incredible hazard. They can move amazingly quickly from ditches and hidden in brush on the sides of the road to the middle of the highway in front of you. Unless you are travelling less than 70 km/hr, you will undoubtedly hit one in these circumstances, since they are not very visible until it is too late. I note that New Brunswick has moose fences along almost the full length of the Trans Canada there and the fences are very effective. Norway does the same very well for elk. If a "have not" province like New Brunswick can manage to construct moose fences, why can' t a "have" province like NL?

  • Look where you are going
    January 25, 2014 - 10:46

    I've seen many moose on Newfoundland's highways and I stop, put my flashers on and give the moose the right of way. One guy passed me and just missed a moose. The government is not the problem, the drivers are. This is another waste of the courts time and taxpayer money.

    • Dolf
      January 26, 2014 - 09:46

      Come on man, Drive the highway and figure out how a fence would be appropriate in numerous circumstances over our rocky and mountainous terrain. Driver inattention is not the peoples responsibility. Back in your cage Ches.