CITATION: Boeker v. Gravel, 2015 ONSC 3510
COURT FILE NO.: C366/09A1
DATE: 2015-06-02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Pamela Boeker
Plaintiff
– and –
Doris Gravel
Defendant
Christopher Szack and Colleen Zack
Third Parties
No one appearing for the Plaintiff
Shannon E. Goffin, for the Defendant
Dave Bily, for the Third Parties
HEARD: February 3, 2015
Written Submissions received March 9, 2015
DECISION ON MOTION
CORNELL, J.
Introduction
[1] This is a motion for an order dismissing the third party claim pursuant to rule 21.01 of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194. In accordance with the reasons that follow, the motion is dismissed.
Background
[2] The plaintiff was involved in a motor vehicle accident that occurred on December 6, 2008. The plaintiff did not bring an action in connection with this accident and would now be precluded from doing so as the claim is statute barred.
[3] The plaintiff was involved in a second accident on February 13, 2009. A claim has been brought against the defendant in connection with this accident.
[4] After the defendant learned of the first accident that occurred on December 6, 2008, a third party claim was brought on November 10, 2011, seeking contribution and indemnity in connection with any judgment awarded against the defendant in the main action.
[5] The statement of claim indicates that the plaintiff suffered injuries, including soft tissue injuries of her neck, shoulders and back, pain discomfort in her back, neck and legs, a severe concussion and mental distress. There is nothing in the statement of claim to suggest that the plaintiff is limiting her claim to the injuries resulting and the damages flowing from the second accident.
Rule 21.01 Motions
[6] Although the moving party did not specify which part of rule 21.01 that they were relying upon, it is clear that the issue is to be determined under rule 21.01(1)(b) in view of the fact that the moving party is asking that the third party claim be struck out.
[7] Rule 21.01(2)(b) makes it clear that no evidence on a motion of this nature is admissible.
[8] It is now settled law that a claim should not be struck out unless it is plain and obvious that the claim must fail. The motion is to be determined by way of reference to the pleadings that have been filed. It is to be assumed that the facts pleaded can be established at trial.
Issue
[9] The issue that needs to be determined is whether it is possible that, based upon a generous reading of the pleadings, the third parties may have some liability to the defendant?
Analysis
[10] There are quite a number of cases that have dealt with this issue. These cases are carefully reviewed by Strathy J. (as he then was) in Sale v. O’Grady’s Restaurant, 2011 ONSC 2437, [2011] O.J. No. 1915. In that case, the plaintiff had suffered two slip and fall accidents within a two year period. The action was commenced against the defendant in connection with the first accident. After learning of the subsequent slip and fall accident, the defendant brought a third party claim against the home owner where such accident occurred. The third party moved to have the third party claim struck out on the basis that there would be no need for contribution and indemnity since each party would only be held liable for their degree of responsibility for the plaintiff’s injuries. After a careful review of the case law, Strathy J. makes the following observations and draws the following conclusions:
[127] I return to the statement of claim, which gives rise to the third party claim. The plaintiff claims damages from the “Fall” (the First Accident) in which she sustained injuries, including a broken hip, as a result of which she claims to have suffered leg and back pain, insomnia, post-traumatic stress disorder and depression. She does not even mention the Second Accident, let alone suggest that the injuries, and the damages flowing from them, are indivisible. The damages claimed relate only to those caused by the First Accident.
[128] That being said, bearing in mind the principles applicable to this motion, particularly the requirement to read the third party claim generously and with regard to the “plain and obvious” test, I have concluded that the third party claim should be allowed to proceed. It cannot be said that it is “plain and obvious” that O’Grady’s and the Third Party are not concurrent tortfeasors because it cannot be determined at this stage that the damages they each caused are separate and divisible. This is a question that will have to be decided by a trial judge. If the trial judge determines that the damages are indivisible, there is at least some risk that O’Grady’s will be required to compensate the plaintiff for at least some of the damages sustained in the Second Accident.
[129] This may not be one of those rare cases where there is a single indivisible injury that would make it impossible to separate the damages caused by the First Accident from those caused by the Second Accident. On the contrary, this is more likely a case in which there are two separate, albeit “overlapping” injuries, because the same hip was broken twice, along with other injuries. Using tried and true methods applied by trial judges, the damages flowing from each injury can probably be conveniently and practically separated. This was possible in the complex circumstances of Blackwater v. Plint (sexual assault, compounded by other trauma, abuse and deprivation) and Broadbent v. GTAA (“overlapping” brain and hip injury). In my respectful view, it is also consistent with the “separate streams of damage” analysis in O’Neil v. Van Horne and with the approach to damages followed in Hicks v. Cooper.
[130] This is not, however, a determination that I can make on this motion. It will be up to the trial judge to determine whether the damages caused by the two accidents can conveniently be separated. If it can be, the third party claim will fail. In the meantime, it should be permitted to proceed.
[11] This analysis makes it clear that ordinarily, and even in complex cases, it is possible for the trial judge to separate and divide the damages caused by each accident. Assuming that it is possible for the trial judge to do so, then the third party claim will fail. On the other hand, if this case is one of those rare cases where it is impossible to separate the damages caused by the first and second accident, then it is possible that the defendant may have liability to the plaintiff for at least some of the damages for which the third party is responsible. As the Sale decision indicates, I am not in a position on this motion to make this determination, rather, this is an issue that will need to be determined by the trial judge.
[12] Counsel for the third party placed great reliance upon Willoughby v. Weber, 2008 8255 (Ont. S.C.). The facts in Willoughby are virtually identical to the present case. In Willoughby, the third party claim was struck out as the claim had been commenced after the limitation period had expired for the plaintiff to commence an action against the third party directly. Willoughby was distinguished in Thompson v. O’Sullivan, 2009 15455 (Ont. S.C.). In that case, the motions judge determined that the applicable limitation period is not the limitation period between the plaintiff and the original tortfeasor, but rather the applicable limitation period in cases of this nature is the limitation period prescribed for third party claims for contribution and indemnity as set out in s. 18 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. I agree with this conclusion.
[13] There can be no doubt that the existence of a third party claim adds to the cost and complexity of the proceedings. Where it is clear that the plaintiff has limited their claim to damages against a defendant, then the defendant is in no position to bring third party proceedings. There is nothing in this motion to suggest that the plaintiff has limited her claim in this fashion. Accordingly, given the possibility that this might be one of those rare cases where it is not possible to separate and divide the damages, I have no alternative at this stage of the proceedings but to permit the defendant to continue with the third party claim.
[14] As was pointed out in Sale, if the plaintiff is not prepared to limit her claim in this fashion, and the third party claim fails, it will then fall to the trial judge to determine if the plaintiff will face cost consequences.
[15] The motion is dismissed with costs.
Costs
[16] If the parties are unable to resolve the issue of costs, the successful party shall provide written submissions not exceeding two pages together with a costs outline within fourteen days of this decision. The third party shall have ten days after receiving such documentation to file a responding material, such material not to exceed two pages. In the event that submissions are not received within this timeframe, it shall be conclusively determined that the issue of costs has been resolved.
The Honourable Mr. Justice R. Dan Cornell
Released: June 2, 2015
CITATION: Boeker v. Gravel, 2015 ONSC 3510
COURT FILE NO.: C366/09A1
DATE: 2015-06-02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Pamela Boeker
Plaintiff
– and –
Doris Gravel
Defendant
Christopher Szack and Colleen Zack
Third Parties
DECISION ON MOTION
Cornell, J.
Released: June 2, 2014