COURT FILE NO.: 15-51477A-1
DATE: 2017-01-30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
VINCENT BASILE, ROSA BASILE, LUCIANO BASILE, by his Litigation Guardian, Rosa Basile, MIKAELA BASILE, by her Litigation Guardian, Rosa Basile, NICOLINO BASILE, TERESA BASILE, FRANK BASILE and NICK BASILE
Plaintiffs
– and –
HOME DEPOT CANADA GP ULC, COMPACT POWER EQUIPMENT, INC. and JLG INDUSTRIES, INC.
Respondents
– and –
ROB RUFFOLO, JACK GAUTHIER, and NEIL WHITELY
Third Parties
Miranda Serravalle, for the Responding Parties/Respondents, Home Depot Canada GP ULC and Compact Power Equipment Inc.,
Stephen G. Ross and Gemma Healy-Murphy, for the Moving Party/Third Party,
Jack Gauthier
HEARD: January 18, 2017
The Honourable Mr. Justice D.J. Gordon
Reasons for Decision
[1] A third party, Jack Gauthier, moves for summary judgment dismissing the claim of the defendants, Home Depot Canada GP ULC and Compact Power Equipment Inc., as against him.
[2] There are two third party claims in this case. JLG Industries Inc. issued a separate claim. All third party claims against Rob Ruffolo and Neil Whitely were previously dismissed, on consent, by order granted on June 13, 2016. I am advised that JLG also consents to an order dismissing its claim against Mr. Gauthier and that the plaintiffs consent to an order dismissing both third party claims against Mr. Gauthier.
Factual Background
[3] This action arises from an accident occurring on November 16, 2013 when Mr. Basile fell from the bucket of a boom lift located on the residential property owned by Mr. Ruffolo.
[4] Mr. Basile, Mr. Ruffolo, Mr. Gauthier and Mr. Whitely are neighbours in Burlington. In the course of installing Christmas lights at their respective residences, the decision was made to rent a boom lift. Mr. Basile and Mr. Ruffolo attended at the local Home Depot for this purpose, towing it back to the neighbourhood where it was placed on the driveway of Mr. Ruffolo’s property.
[5] Mr. Basile was employed in the construction industry and was the holder of a license to operate aerial work platforms, such as the boom lift that was being used. Mr. Gauthier worked in sales and had no experience in using heavy equipment. A license was required to rent the boom lift.
[6] Mr. Basile conducted preliminary tests on the boom lift. He then entered the bucket and attempted to operate the lift. It was not leveling properly as it rose. Mr. Basile observed a pin on the arm of the lift. He asked “someone” to remove it. Mr. Gauthier walked over to the machine and, with some difficulty, removed the pin. The bucket immediately tipped over causing Mr. Basile to fall to the ground. He is said to have suffered serious injuries.
[7] The boom lift is owned by Compact Power, who leased it to Home Depot. Home Depot, in turn, would rent it out to the general public. The machine was manufactured by JLG Industries.
[8] Mr. Basile commenced this action by statement of claim issued on January 29, 2015. He seeks a significant damage award alleging negligence by the defendants, including defective design.
[9] This third party claim seeks contribution and indemnity from Mr. Gauthier, alleging negligence in removing the pin.
[10] Counsel report that examinations for discovery were completed in May 2016. The action has not been set down for trial.
Issues and Positions
[11] On this motion for summary judgment, the issue requiring determination, or not, is the reasonableness of Mr. Gauthier’s conduct in following the instructions of Mr. Basile to remove the pin.
[12] Mr. Ross argues that Mr. Gauthier cannot be found negligent as he was only following the instructions of Mr. Basile. Such, he says, was reasonable in the circumstances as only Mr. Basile was licensed to operate the boom lift. Further, Mr. Ross submits the third party claim cannot succeed as Mr. Gauthier cannot be liable to Mr. Basile. Therefore, Mr. Ross takes the position there is no genuine issue requiring a trial and the third party claim should be dismissed.
[13] Ms. Serravalle submits there is a genuine issue requiring a trial, namely whether Mr. Gauthier was negligent and thus liable, in whole or in part, to Mr. Basile. In particular, she argues there is evidence of the negligence of Mr. Gauthier in removing the pin. Following the request or instructions of Mr. Basile, Ms. Serravalle says, was not reasonable as Mr. Gauthier was obliged to assess the risk associated with his actions and failed to do so. She submits that blindly following instructions does not meet the standard of reasonable care in the circumstances of this case.
[14] Ms. Serravalle also argues that the third party is really presenting the defence of voluntary assumption of risk but such cannot succeed on the evidence tendered. Lastly, she submits a defendant ought not be required to prove the plaintiff’s case on a motion for summary judgment regarding a third party claim. In particular, Ms. Serravalle says there is no evidence pertaining to Mr. Basile’s knowledge of risk and, hence, it would be unfair to decide the third party claim by motion.
[15] On my review of the pleadings, evidence presented and the submissions of counsel, I am of the view a ruling on this motion can be made only having regard to the reasonableness in following instructions issue. The motion for summary judgment fails for the reasons that follow.
Discussion and Analysis
[16] The starting point is the proposition a third party will only be liable for contribution if he is directly liable to the plaintiff. See: Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42, at paras. 27-30; Adams v. Thompson, Berwick, Pratt & Partners (1987), 1987 CanLII 2590 (BC CA), 39 D.L.R. (4th) 314 (B.C.C.A.), at paras. 16-17; and Macchi S.p.A. v . New Solution Extrusions Inc., 2007 CanLII 48653 (ON SC), [2007] O.J. No. 4392 (S.C.J.), at paras. 15-25, aff’d 2008 ONCA 586.
[17] Hence, if the negligence of Mr. Gauthier is attributable to Mr. Basile, there is no need for a third party claim. Such negligence would stand as a defence. The focus of the analysis then is with the reasonableness of following instructions.
[18] Both counsel referred to a number of decisions on “instructions” for comparative purposes. Mr. Ross relies on: Guimond v. Laberge (1956), 1956 CanLII 858 (ON CA), 4 D.L.R. (2d) 559 (Ont.C.A.); Halbouni v. Egyptair, [1999] O.J. No. 646 (Ont. Gen.Div.); Edwards v. Schrader, 1942 CanLII 169 (SK KB), [1942] 1 W.W.R. 826 (Sask. D.C.); Singer v. Lipman Zener Waxman LLP, 2014 ONSC 4521; Transamerica Life Insurance Co. of Canada v. Hutton, [2000] O.J. No. 2240 (S.C.J.); and Froese Brothers Excavating Ltd. v. Westcoast Transmission Co., [1982] B.C.W.L.D. 1136 (B.C.S.C.). Ms. Sarravalle relies on: VanWynsberghe v. Knockaert (1954), 1954 CanLII 602 (MB KB), 4 D.L.R. 510 (Man.Q.B.); Friesen v. Charles Penner Ltd., 1976 CanLII 1573 (MB KB), [1977] 1 W.W.R. 533 (Man. Q.B.); and Radford v. Ridge 2013 BCSC 1427. I do not intend on reviewing the caselaw provided by counsel, as such only pertain to particular factual circumstances with limited commentary on the relevant principles.
[19] The issue is not identified as simply following instructions but, rather, whether it was reasonable. The defence of following instructions alone has long been rejected. To address the standard necessitates a review of the surrounding circumstances, a fact driven exercise.
[20] Mr. Basile, I am told, has no memory of the event, presumably as a result of his injuries. The evidence of others present, Mr. Ruffolo and Mr. Gauthier, is all that is available. Transcripts of portions of the examinations for discovery were tendered in evidence.
[21] Mr. Ruffolo testified as follows:
109 Q. And then what?
A. And then he noticed that there was a pin, I guess, that was connecting the basket to the frame.
110 Q. Okay.
A. And then he made a comment about that that must be the transportation pin. And then he said, “Can somebody just pull that pin?”
113 Q. When Mr. Basile asked whether someone could pull the pin, did you understand that he was asking whether that was a good idea or anything of that sort?
A. Sorry, what do you mean?
114 Q. I’m trying to understand the context in which he asked whether someone could pull the pin. Is that something that could happen or is it a good idea, or anything of that sort? Or was it more of a command?
A. Not. It was more so that – he noticed the pin there. Made an assumption that it was the pin to transport the machine and just basically said, “Can somebody pull that pin?”
115 Q. Did he sound as though he knew what he was talking about?
A. He was speaking in a regular tone of voice so I assumed that he did. It appeared that he did.
116 Q. And up until that point had Mr. Basile done anything that made you question his ability to operate the lift?
A. No.
[22] Mr. Gauthier testified as follows:
76 Q. Okay. At the time did you have any concerns about what was going on?
A. I didn’t because I wasn’t watching. But Vince did.
77 Q. Sorry, can you repeat that?
A. I didn’t have any concerns but Vince did.
78 Q. What did Vince say?
A. Vince mentioned that the bucket wasn’t leveling as he was lifting the arm.
79 Q. Did he say anything else?
A. With regards to it not functioning properly?
80 Q. Yes.
A. At that point, no.
81 Q. Did he continue to move the bucket around?
A. He did.
82 Q. Did it seem that he had concerns about how the lift was working?
A. Yes. He specifically mentioned that in order to use the lift properly, the bucket would have to level.
83 Q. Okay. What happened next?
A. When the bucket wouldn’t level he tested the machine again in a similar sequence that he’d done from the side panel but from within the bucket, moving the arm left to right, in and out, and then following up with one more try at going up and down. As he went up, the bucket didn’t level again sp he brought it back down to what I assume is its resting position.
84 Q. Did he say anything?
A. He was concerned that the bucket was still not leveling and he started looking around the machine as to why that might be.
91 Q. What did Mr. Basile say or do next?
A. Mr. Basile noticed that there was a pin that was on the arm of the machine, and suggested that it was a pin used – that could be used for traveling to and from to keep the machine stable, and asked me if I would pull the pin. Sorry, he asked if someone can pull the pin.
92 Q. At that point did you have any concerns?
A. No concerns.
93 Q. How would you describe the tone that Mr. Basile used when he made that – when he said that?
A. Describe the tone?
- Q. Was it a question?
A. Discovery. He seemed relieved that he could potentially have solved the problem, perhaps.
95 Q. Was it a question whether or not it should have been done?
A. No, it was a question for assistance. ‘Can someone please pull that pin?’ Not with those specific words, but in that tone.
- That’s helpful. Do you recall him mentioning anything about the pin having something to do with tilting the bucket?
A. I don’t think so. Can you be more specific?
97 Q. I’m looking at a police statement that I have from Mr. Whiteley. He’d mentioned it to the police after the accident if the pin could be removed from the basket so it could be tilted.
A. My recollection is slightly different. He used the word “level”, not “tilted”. But I’d agree with the intent of that comment.
- Q. So if you could remove the pin so the basket could level?
A. Yes, ma’am.
140 Q. Did you discover the swivel or did Vince say there’s a swivel?
A. Vince told me there’s a swivel. I attempted to pull the pin and Vince said, “It’s being caught up by that swivel,” or something to that effect, which led me to look over the machine, through the gap, to see the swivel and to straighten it in order to pull it out.
141 Q. What happened next?
A. The pin didn’t come out right away. So I had to jiggle the pin in order for it to continue to be removed.
142 Q. At any point in time did you have any concerns about the pin?
A. No, ma’am.
143 Q. Before this incident happened did you know what a cotter pin was?
A. Before the incidents happened, I have seen a cotter pin but didn’t know it was called a cotter pin.
144 Q. Where had you seen one?
A. I don’t know.
145 Q. So you mentioned you had to jiggle the pin. Was it difficult to remove?
A. Yes.
146 Q. How long did it take you to pull the pin out?
A. Less than five seconds.
147 Q. Did you have to pull pretty hard?
A. No. Not hard, just had to jiggle it.
148 Q. What happened next?
A. The bucket tipped over.
149 Q. Did it happen right away?
A. Yes.
- Q. Okay.
A. And Vince was on the ground.
[23] Mr. Basile was a carpenter. He completed a variety of courses in his trade, including operation of aerial lift platforms. His actual training and experience was on a scissor lift, although the course covered all lift platforms. His license, as well, allowed Mr. Basile to operate all lift machines.
[24] It appears Mr. Basile did not have experience in operating this particular type of lift boom, although it is unclear as to how such differentiates from other lift equipment. The others were not fully aware of Mr. Basile’s experience or lack of, only knowing he had the appropriate license and operated lift platforms in his work.
[25] Mr. Basile assumed the pin was used to keep the machine stable while traveling. This was incorrect. Removing the pin caused the bucket to tip.
[26] Mr. Gauthier and Mr. Ruffolo assumed Mr. Basile knew what he was doing. They made no inquiry as to his experience. Mr. Gauthier did not ask any questions when Mr. Basile requested removal of the pin and did not appreciate or understand the consequences of so doing.
[27] Is that reasonable? As the transcript referred to reveals, Mr. Basile was less that definitive in concluding the purpose of the pin and, given the difficulty experienced by Mr. Gauthier in removing the pin, I fail to understand why no inquiry, at least, was made or other action taken.
[28] It is reasonable to infer the pin had a specific purpose, being part of a complex piece of equipment. In my view, Mr. Gauthier was required to make some inquiry and assess the risk. Mr. Gauthier was not an employee of Mr. Basile and was under no obligation to complete the task requested. In these circumstances, at least on this evidence, I am not persuaded Mr. Gauthier has no liability.
[29] The issue cannot be determined on a motion for summary judgment. A trial is required.
Summary
[30] In result, the motion is dismissed. If the parties are unable to resolve the issue of costs, counsel are directed to exchange brief written submissions and deliver same to my chambers in Kitchener within 30 days of the release of this decision.
D.J. Gordon J.
Released: January 30, 2017
COURT FILE NO.: 15-51477A-1
DATE: 2017-01-30
BETWEEN:
VINCENT BASILE, ROSA BASILE, LUCIANO BASILE, by his Litigation Guardian, Rosa Basile, MIKAELA BASILE, by her Litigation Guardian, Rosa Basile, NICOLINO BASILE, TERESA BASILE, FRANK BASILE and NICK BASILE
Plaintiffs
– and –
HOME DEPOT CANADA GP ULC, COMPACT POWER EQUIPMENT, INC. and JLG INDUSTRIES, INC.
Respondents
– and –
ROB RUFFOLO, JACK GAUTHIER, and NEIL WHITELY
Third Parties
REASONS FOR DECISION
D.J. Gordon J.
Released: January 30, 2017
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