CITATION: Laidler v. The Office of the Public Guardian and Trustee, 2015 ONSC 943
COURT FILE NO.: 12-53559
DATE: 2015/02/17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CHRISTOPHER LAIDLER and CINDY SMART – Plaintiffs
AND
THE OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE, ANNA LEE FOURNIER, JULIE FOURNIER as ESTATE TRUSTEE OF THE ESTATE OF ROBERT HOWARD FOURNIER, Deceased, WANDA VAUGHAN, KENNETH HARTIN, COLDWELL BROKER SARAZEN REALTY, JOSEPH FORTE and ROYAL LEPAGE TEAM REALTY - Defendants
BEFORE: Hackland J.
COUNSEL: Cheryl Gerhardt McLuckie, for the Plaintiffs
Christopher Moore for the Defendant, the Office of the Public Guardian and Trustee
Robert J. De Toni, for the Defendant, Julie Fournier as Estate Trustee of the Estate of Robert Howard Fournier
Christopher Tucker, for the Defendants, Joseph Forte and Royal LePage Team Realty
HEARD: January 22, 2015 (Ottawa)
ENDORSEMENT
[1] In this action the Plaintiffs’ sue for damages incurred as a result of purchasing land that was allegedly contaminated by hydro carbons. They sued the vendors on the basis of breach of contract, negligence and negligent misrepresentation. They also sued their own real estate agent and broker, as well as the listing agent and broker. The Defendant vendors defended the action and claimed contribution and indemnity from their agent and broker, the listing agent.
[2] The Plaintiffs and the real estate parties (the agents and their brokerages), whom I will refer to as “the Settling Defendants”, have entered into a settlement of the claims between themselves and the plaintiffs and specifically have entered into a “Pierringer Agreement” to reflect the settlement. The vendors, (the Non-settling Defendants), are of course not a party to the Pierringer Agreement.
[3] Pursuant to the Pierringer Agreement, the Plaintiffs consented to a dismissal of the action on a without costs basis as against the Settling Defendants, and agreed to amend the Statement of Claim against the Non-settling Defendants, so as to seek only damages for which the Non-settling Defendants may be severally liable, and not any damages for which the Settling Defendants could be held jointly liable. The proposed amendments to the Statement of Claim were initially contested, however, were provided to the Court on a consent basis at the outset of argument of this motion.
[4] The complication giving rise to the motion is that the Non-settling Defendant, Julie Fournier, (as Estate Trustee of the Estate of Robert Howard Fournier, deceased), one of the vendors of the property, will not agree to abandon her cross-claim against one of the Settling Defendants, her former agent and listing broker (the Defendant Joseph Forte and Royal Lepage Team Realty). This is a pleaded cross-claim based on negligence and breach of contract. The contract in question is the listing agreement entered into with the listing brokerage Royal LePage Team Realty.
[5] The cross-claim in issue reads as follows:
CROSSCLAIM
- Julie claims as against her co-defendants, the PGT, Vaughn, Harten, Coldwell, Forte and Royal LePage the following:
(a) Contribution and indemnity in respect of all sums as they may be called upon to pay to the Plaintiffs;
(b) Pre and post-judgment interest in accordance with the provisions of the Courts of Justice Act;
(c) Costs of the action and cross-claim on a substantial indemnity basis; and
(d) Such further and other relief as this Honourable Court Deems Just.
Julie repeats and relies upon the allegations contained in her statement of defence.
Julie states that she is entitled to contribution and indemnity from her co-defendants in respect of all or part of such sums as they be called upon to pay to the Plaintiffs.
Without limiting the generality of the foregoing, and in relation to Forte and Royal LePage, Julie states and the fact is that Forte and Royal LePage breached their contract with the PGT and Robert’s Estate, and/or were negligent in that:
(a) They failed to adequately disclose to potential purchasers, including Laidler what Julie had told them regarding the oil leak; and
(b) They failed to ensure that the Proper Schedule “B” was executed by Laidler and the PGT and Julie.
- Julie pleads and relies upon the Negligence Act, R.S.O. 1990, C.N. 1 as amended.
[6] Significantly, this cross-claim is pleaded in both breach of contract and negligence. If the cross-claim had been simply based on contributory negligence, the vendor’s agent and broker should be released from the action. Typically, courts have considered Pierringer Agreements in the context of negligence claims. In those cases, the court has examined s. 1 of Negligence Act, R.S.O. 1990, c.N.1 which provides as follows:
Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the persons suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault. (emphasis added)
[7] In light of the apportionment provisions in the Negligence Act and the courts inherent jurisdiction to control its own process, the courts have found that, in cases of negligence, where there is no contract between joint tortfeasors, it is not necessary for the Settling Defendants to be part of the action at trial in order for the court to apportion liability amongst the Settling and Non-settling Defendants. Consequently, in the face of a Pierringer Agreement, a court, when faced with a motion to remove the Settling Defendants from the action, will normally so order. The end result, based upon the Pierringer Agreement, is that a trial judge will determine the degree of fault amongst both Settling and Non-settling Defendants. Once the trial judge makes that determination, the trial judge will only order that the Non-settling Defendants pay to the plaintiff their share of the damages, on a several basis, in relation to their degree of fault.
[8] The position of the Settling Defendants is that the Settling Defendant Joseph Forte and Royal LePage Team Reality (who, as noted, were the listing agent and broker), be struck from the action because the cross-claim against them is untenable and not capable of succeeding. This claimed relief is based on the proposition that it is plain and obvious that this cross-claim cannot succeed (Rule 21.01(b)) and/or that the determination of the cross-claim “does not require a trial”, as per the test under Rule 20 for summary judgment.
[9] The Settling Defendants claim in their factum that:
Rights to contribution and indemnity only arise where a defendant is obligated to pay more than its appropriate share of a Plaintiff’s damages. Where claims are limited to damages attributable to each defendant, a claim for contribution and indemnity against another discloses no reasonable cause of action, and such claims for contribution and indemnity, and so ought to be struck. Taylor v. Canada, 2009 ONCA 487, paras. 20, 33.
In the herein action, the Amended Statement of Claim limits the Plaintiffs’ claims to damages attributable to each Remaining Defendant. The crossclaims of each remaining defendant are for contribution and indemnity, and so ought to be struck.
[10] The Settling Defendants further assert that the Pierringer Agreement provides that the Plaintiffs have agreed to restrict their claims to those sums for which the Non-settling Defendants may be severally liable and for which the Non-settling Defendants cannot be held jointly liable with the Settling Defendants or either of them.
[11] I do not accept the submission of the Settling Defendants. On the basis of the Amended Statement of Claim it would be open to the trial judge to find that the vendors are liable for failing to communicate or disclose the necessary information about the condition of the property to the Plaintiffs in this real estate transaction and further that their agent and broker, the Settling Defendant Mr. Forte and Royal LePage Team Reality, had contractual obligations to the vendor – the Non-settling Defendants – under the listing agreement to see that this information was furnished to the Plaintiffs. This could result in the vendors being entitled to indemnification for all or part of the damages which they are called upon to pay to the Plaintiffs. In any event, it is not plain and obvious that this could not be a possible trial outcome.
[12] It does not assist the Settling Defendants’ argument that the Pierringer Agreement precludes the Plaintiffs from asserting claims against the Non-settling Defendants which give rise to indemnification claims against the Settling Defendants. The amended Statement of Claim arguably does just that and, in any event, the vendors (the Non-settling Defendants), are not parties to the Pierringer Agreement, so their rights, such as the right to seek indemnification from their real estate agent and broker, cannot be restricted by that Agreement.
[13] The Settling Defendants further submit that the cross-claim does not allege that concurrent breaches of the listing agreement caused the same damages as the indemnity claim and, in any event, the cross-claim lacks sufficient particulars to identify the terms of the contract or any damages flowing therefrom.
[14] A trial judgment awarding an indemnity payment from the real estate agent and broker to the vendors – the Non-settling Defendants, may give rise to a right of indemnity from the plaintiffs, pursuant to the Pierringer Agreement. However, that potential trial outcome cannot affect the rights of the Non-settling Defendants to assert their cross-claim.
[15] In my opinion the wording of the cross-claim makes it sufficiently clear that a claim in contract, in addition to a claim for contributory negligence, is being asserted and it is pleaded in a manner sufficient to put the Settling Defendants on notice as to the basis for the contractual claim, ie., the listing agreement. If the problem is a lack of particulars of the breach of contract claimed, the Settling Defendants may request further particulars and bring a motion to compel such particulars if required.
[16] In summary, the cross-claim of Julie Fournier as Estate Trustee of the Estate of Robert Howard Fournier, deceased, against Joseph Forte and the Royal LePage Team Reality will not be struck. I understand that the parties recognize that the cross-claim of the Non-settling Defendant Anna Lee Fournier represented by the Public Guardian and Trustee, which is a claim for contributory negligence only, can be struck and I so order and approve such disposition as being in the proper interest of the said Defendant.
[17] If Julie Fournier, as representative of the Estate, wishes to seek costs of this motion, written submissions should be submitted to the Court within 30 days and the Settling Defendants may reply within 30 days of receiving the Estate’s submissions. There will be no costs to the Plaintiffs or the Public Guardian and Trustee as they were not actively involved in the contested issue before the Court on this motion.
Mr. Justice Charles T. Hackland
Date: February 17, 2015
CITATION: Laidler v. The Office of the Public Guardian and Trustee, 2015 ONSC 943
COURT FILE NO.: 12-53559
DATE: 2015/02/17
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: CHRISTOPHER LAIDLER and CINDY SMART
Plaintiffs
AND
THE OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE, ANNA LEE FOURNIER, JULIE FOURNIER as ESTATE TRUSTEE OF THE ESTATE OF ROBERT HOWARD FOURNIER, Deceased, WANDA VAUGHAN, KENNETH HARTIN, COLDWELL BROKER SARAZEN REALTY, JOSEPH FORTE and ROYAL LEPAGE TEAM REALTY - Defendants
ENDORSEMENT
Justice Charles T. Hackland
Released: February 17, 2015