COURT FILE NO.: 12-0411-A1

DATE: 20181001

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Nicolas Paterson and Tammy Paterson

Plaintiffs

– and –

Skyline Hotels and Resorts Inc. o/a Horseshoe Resort, Bradley Coulson, a minor by his Litigation Guardian Paula Hill-Coulson, and Trillium Lakelands District School Board

Defendants

– and –

Bellwoods Centres for Community Living and Maxine Cunningham

Third Parties

COUNSEL:

Shane Henry for the Plaintiffs

Edward J. Chadderton for Skyline Hotels and Resorts Inc.

No one appearing for Bradley Coulson or Trillium Lakelands District School Board

Meryl Rodrigues for the Third Parties

HEARD: September 21, 2018

RULING ON MOTION TO STRIKE THE THIRD PARTY CLAIM

BOSWELL J.

I.

Overview

[1] Mr. Paterson suffered a horrific injury while snowboarding at Horseshoe Resorts as part of a high school outing in February 2012. He slipped on some ice and fell partway down a hill. He was struck by another snowboarder coming down the hill behind him. He suffered a fracture of his cervical spine and is a quadriplegic.

[2] Mr. Paterson was initially airlifted to St. Michael’s Hospital in Toronto, where he underwent a number of procedures. He ultimately went to Bellwoods Centres for Community Living Inc. for a fourteen month residential rehabilitation program. He alleges that he experienced abuse and mistreatment while at Bellwoods.

[3] In this action, Mr. Paterson sues Skyline Hotels and Resorts Inc. – the operator of Horseshoe Resorts – as well as the young man who struck him – Bradley Coulson – and the school board that essentially transported him to the resort. He alleges negligence on the part of all three defendants which caused or contributed to physical and psychological pain and suffering and to a catastrophic loss of functionality.

[4] In a separate action (the “Bellwoods Action”), Mr. Paterson has sued Bellwoods and the personal care worker assigned to him while there. He alleges negligent care that caused him physical and psychological pain and suffering.

[5] On an earlier motion, Mr. Coulson sought to have the two actions consolidated or heard together. Skyline supported the motion. Bellwoods opposed it. The motion was denied by Sutherland J. on July 8, 2016. Thereafter, Skyline obtained leave to commence a Third Party Claim in this action seeking contribution and indemnity from Bellwoods for any damages caused or contributed to by Bellwoods for which Skyline may be held liable in the main action.

[6] As is apparent from the history of the proceedings, Skyline wants Bellwoods at the same table when Mr. Paterson’s damages are assessed and apportioned. Bellwoods takes the position that Mr. Paterson’s claimed damages are distinct in the two proceedings and those proceedings should, therefore, also remain distinct.

[7] In this motion, Bellwoods moves to strike out the Third Party Claim as being untenable in law. For the reasons that follow, I am persuaded that Bellwoods is correct and that the Third Party Claim should be struck.

[8] To understand this ruling, it is necessary to have a general appreciation of the content of the pleadings in this action and in the Bellwoods Action. In addition, it is necessary to have a basic appreciation of the manner by which damages are apportioned amongst concurrent wrongdoers in negligence actions.

II.

The Pleadings

[9] In this action, Mr. Paterson asserts that Skyline was negligent for, amongst other things, failing to properly groom the hill that he fell on. He asserts that Mr. Coulson was negligent for, amongst other things, following too closely, boarding too quickly, and failing to keep a proper lookout. He alleges that Skyline and Coulson are jointly and severally liable to him for his damages, which he claims in the amount of $20 million.

[10] Mr. Paterson has settled his claim against Trillium Lakelands District School Board. He has entered a proportionate share agreement with them, which means he has agreed to limit his claim against the school board to its several share of liability for his injuries. He has presumably agreed on the value of the school board’s proportionate share of his damages. Trillium Lakelands no longer needs to be concerned about claims for contribution and indemnity by its co-defendants because Mr. Paterson is limiting his claim against the co-defendants to their several liability.

[11] Mr. Paterson amended his Statement of Claim to disclose the agreement he has with Trillium Lakelands and to make it clear that his claim is limited to recovering “damages, costs and interest attributable to…Skyline and Bradley Coulson’s several share of liability” as proven against them or either of them.

[12] Mr. Paterson alleges that he suffered the following injuries as a result of the negligence of Skyline and/or Mr. Coulson:

(a) A loss of voluntary motor function below his neck;

(b) A profound and permanent loss of his mobility and strength;

(c) A loss of functional use of his hands and fingers;

(d) A loss of torso control;

(e) Neurogenic bladder;

(f) Neurogenic bowel;

(g) Impaired ability to sleep;

(h) Depression;

(i) Anxiety;

(j) Emotional lability;

(k) Fatigue;

(l) Headaches;

(m) Nausea; and,

(n) A total loss of his ability to physically function.

[13] In the Bellwoods Action, Mr. Paterson claims that he was subjected to physical and emotional abuse by his personal care worker at Bellwoods, Ms. Maxine Cunningham. He asserts that she was negligent in the treatment she provided and in the result he suffered physical and emotional pain. Bellwoods is said to be vicariously liable for the losses caused by its employee and negligent in its own right for failing to properly supervise her. Mr. Patterson alleges that he suffered and continues to suffer severe psychological injuries including mental anguish, emotional distress and personality changes.

[14] General damages of $400,000, punitive damages of $250,000 and aggravated damages of $250,000 are sought against Bellwoods and Ms. Cunningham jointly and severally.

Apportionment of Liability Amongst Joint Tortfeasers

[15] Sometimes a plaintiff will allege that his or her injuries have been caused or contributed to by the actions of multiple parties. That is indeed the case in this action, where Mr. Paterson claims that three parties’ negligence contributed in some way, shape or form to his damages.

[16] The Supreme Court ruled in Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458, at para. 25, that where a plaintiff’s injury is indivisible, any defendant who has negligently contributed to the injury will be fully liable for it.

[17] Although concurrent tortfeasers may each be found fully liable for a plaintiff’s injuries, fault may be apportioned among them under s. 1 of the 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 person 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 or negligent.

[18] Where a defendant is of the view that all the potentially negligent parties are not parties to the action, it may generally add those parties to the proceedings as third parties so that it may seek contribution from the added parties for any damages assessed against it: Negligence Act, s. 5.

[19] Whether Skyline is ultimately able to seek contribution and indemnity against the Third Parties in this case will depend, in large part, on whether Mr. Paterson’s claimed injuries are characterized as divisible or indivisible. That is a characterization that may be made easily in some cases. It may be more difficult in other cases. This is one such case. I will come back to this issue momentarily.

III.

Rule 21 and the Plain and Obvious Test

[20] Bellwoods’ motion is brought under R. 21.01(1) of the Rules of Civil Procedure, which provides as follows:

21.01 (1) A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly.

[21] The test to be applied on Rule 21 motions is well-settled. The facts alleged in the pleadings are to be taken as true. The pleadings are to be given a generous interpretation. And it must be plain and obvious that the claim cannot succeed before it is struck as disclosing no reasonable cause of action. See Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources), 2013 ONCA 683 at paras. 31-32.

The Parties’ Positions

[22] Skyline’s position is that Mr. Paterson’s current injuries are all, in some form or another, connected to the snowboarding accident. The injuries he suffered on the hill at Horseshoe Resort were exacerbated by the negligent conduct of Ms. Cunningham and Bellwoods. His injuries are largely indivisible.

[23] Skyline’s fear is that Mr. Paterson will appear in the trial of this action with a host of indivisible injuries, some of which were caused or contributed to by the Third Parties. If Skyline is found to have negligently contributed to those injuries, it will be fully liable for them. It must then turn to other joint tortfeasers for contribution and indemnity. If the Third Parties are not included in this proceeding, such that their proportionate liability may be determined, then Skyline may bear a disproportionately large share of liability for Mr. Paterson’s injuries.

[24] Skyline’s counsel conceded that it is possible for him, in this action, to raise Mr. Paterson’s separate claim against Bellwoods to mitigate Skyline’s proportionate share of damages. But he viewed that as an unsatisfactory answer to the concern about disproportionate liability and would prefer not to be urging the jury to award a proportion of damages “to an empty seat” in the courtroom.

[25] At any rate, Skyline’s position is that it is far from plain and obvious that Mr. Paterson’s injuries are divisible and/or that it has no viable claim for contribution and indemnity against the Third Parties in this proceeding.

[26] Bellwoods’ position is that the damages alleged by the plaintiff in the separate Bellwoods Action are distinct and not indivisible from the damages sought in this action.

[27] Bellwoods, moreover, contends that Mr. Paterson has limited his claim, in this action, to the several liability of Skyline and Coulson. In other words, he is not seeking damages from Skyline in excess of Skyline’s joint and several liability with Coulson. This position is reinforced by the fact that Mr. Paterson has sued Cunningham and Bellwoods in a separate action entirely.

[28] Bellwoods argues that, in the circumstances, it is plain and obvious that there can be no damages for which contribution and indemnity is available in this action against it.

[29] In Bellwoods’ view, the attempt to add it as a third party to this action is nothing more than an end run around the ruling of Sutherland J. that dismissed Mr. Coulson’s attempt to consolidate this action and the Bellwoods Action.

The Issues:

[30] The circumstances of this case, and the positions taken by the parties, raise the following two issues for analysis:

(a) Are Skyline and Bellwoods concurrent tortfeasers with respect to an indivisible injury?

(b) Is Skyline potentially liable in this action for damages caused or contributed to by the Third Parties?

[31] A determination of these two issues will be dispositive of the relief sought on the motion. I will consider them in turn.

IV.

Analysis

(a) Are Skyline and Bellwoods concurrent tortfeasers with respect to an indivisible injury?

[32] Concurrent tortfeasers were described by the Court of Appeal for Ontario in Lawson v. Viersen, 2012 ONCA 25, at para 35, as “persons whose conduct causes a single loss to another.” Justice Rouleau cited Glanville L. Williams’ text, Joint Tort and Contributory Negligence: A Study of Concurrent Fault in Great Britain, Ireland and the Common-Law Dominions (London: Stevens and Sons, 1951) where the author described concurrent tortfeasers as “those whose torts are separate in time but concur in the sense that they run together to produce the same damage.” They may be distinguished from nonconcurrent tortfeasers “where separate acts produce different damage to the plaintiff.”

[33] The live issue on this motion isn’t whether the actions of the alleged tortfeasers were separate in time (they weren’t), but rather whether they ran together to produce the same (indivisible) damages.

[34] Divisible injuries do not engage issues of apportionment. They involve the task of making each defendant liable only for the injuries that he or she has caused. If Mr. Paterson’s injuries are divisible, then the third party claim is, in my view, untenable.

[35] As I noted above, characterizing a plaintiff’s damages as indivisible or divisible is easy in some cases. In Athey v. Leonati, for instance, the damages related to a single injury – a herniated disc. It was easy to conclude, in that case, that the plaintiff’s damages were indivisible. In another case, a plaintiff may suffer a broken arm in one incident and a broken leg in another. Clearly such damages would be divisible.

[36] In this case, the characterization of the plaintiff’s damages is not so easily accomplished. At least not from the court’s current vantage point.

[37] It is not clear to me, when reading the Statement of Claim in the Bellwoods Action, whether the plaintiff is alleging that his injuries caused by the conduct of Bellwoods and Cunningham are separate and distinct from those allegedly caused by Skyline and Coulson or whether they are an aggravation of those pre-existing injuries.

[38] I will focus, for the moment, on Mr. Paterson’s alleged psychological injuries.

[39] Mr. Paterson is a young man who suddenly found himself a quadriplegic. His life has changed almost immeasurably. He is undoubtedly anxious, depressed, fearful and at times agitated. He also alleges that he was mistreated at Bellwoods and that he has suffered further emotional distress.

[40] Having essentially no evidentiary record on this motion, it is impossible to know just how Mr. Paterson will present at trial. Perhaps he will present with a constellation of psychological injuries allegedly caused or contributed to by the defendants and the Third Parties jointly and severally. Perhaps he will present with a constellation of psychological injuries allegedly caused by the defendants and aggravated by the Third Parties. Or perhaps he will present with a constellation of psychological injuries, some of which he is able to identify as being caused by the defendants and others by the Third Parties.

[41] Ultimately, the determination of whether an injury or a constellation of injuries is divisible or indivisible is one that, in my view, requires a nuanced and contextual examination of the facts of the case. Some cases may be easy: the herniated disc for instance. Other cases, like this one, may be considerably more difficult. Here, because of the nature of the motion, I lack a sufficient evidentiary basis to be able to say whether, or to what extent, Mr. Paterson’s injuries are divisible or indivisible, or by extension, whether Bellwoods and Cunningham are concurrent or nonconcurrent tortfeasers.

[42] In the circumstances, I am prepared to accept, for the purposes of this motion, that at least some of Mr. Paterson’s injuries may be indivisible. Said another way, it is not plain and obvious that Mr. Paterson’s injuries are all divisible.

(b) Is Skyline potentially liable for damages caused or contributed to by the Third Parties?

[43] Even if Bellwoods and Skyline are concurrent tortfeasers, Bellwoods still asserts that Mr. Paterson has limited his damage claim against Skyline and Coulson to their several liability. That being the case, there will be nothing for either of them to claim over against the Third Parties by way of contribution and indemnity.

[44] I questioned Bellwoods’ counsel about whether, as a practical matter, the persuasiveness of her argument depended on the level of confidence the court had in the plaintiffs’ ability to parse out the damages attributable to the conduct of the defendants versus the damages attributable to the conduct of the Third Parties.

[45] Bellwoods’ counsel argued that while it may not be an easy task, it is one that courts have recognized as the responsibility of plaintiffs. The difficulty in separating out the consequences of individual actions cannot support the legal viability of a Third Party claim. Counsel cited the decision of the Court of Appeal in A.O. v. J.V., 2002 41072 (ON CA), [2002] O.J. No. 1528 as authority in support of her argument.

[46] A.O. involved a claim for damages by a woman who had been sexually assaulted by a twelve year old when she was three. She claimed damages for what I will describe generally as emotional distress. The defendant sought to add three parties as Third Party defendants: her parents who had allegedly been emotionally abusive towards her as a child; and a former boyfriend who had allegedly sexually assaulted her.

[47] The motions judge denied the request to add the three proposed parties. In upholding that decision, Carthy J.A., held, at para. 14:

This is clearly not a complaint related to a foot and an arm and it may be difficult to separate out the consequences, if any, of the defendant's conduct from all the influences upon the plaintiff over the intervening years - but that is her task as a plaintiff. And she has not backed away from that obligation. In repeated references in her factum filed in this court it is said that she seeks only damages for which the defendant is solely to blame. There is no suggestion that she seeks damages against him as a contributor along with other tortious or non-tortious causes. Nor could she, because the appellant is no more a contributor to any damages suffered as a result of the proposed third parties' wrongdoing than they are for his conduct and its consequences. The tortfeasors are each distinct. Whatever difficulties may be presented at trial, the plaintiff will have to meet the onus of satisfying the court that the defendant's conduct led to particular consequences.

[48] Obviously Carthy J.A. concluded that the proposed defendants were not concurrent tortfeasers. They were distinct. And they caused distinct damages. I appreciate that Bellwood’s position in this case is that the plaintiff’s damages are divisible. If that were indeed the case, then undoubtedly the reasoning in A.O. applies.

[49] As I noted however, for the purposes of this motion, I have concluded that the Third Parties may be concurrent tortfeasers and I am treating them as such. In other words, I accept, for the sake of argument, that at least some of Mr. Paterson’s injuries may be indivisible. Where injuries are indivisible, a plaintiff need not separate out the specific consequences of each defendant’s conduct. So long as a party’s negligent conduct contributed in some measure to the plaintiff’s damages, he or she may be found fully liable for it.

[50] Bellwoods’ counsel went on to submit that the manner in which the pleadings frame the case against the defendants ensures that they will not bear a disproportionate share of liability. Even if some of Mr. Paterson’s claimed damages in this action are indivisible, and even if they were caused or contributed to by the Third Parties, he is only seeking to recover damages from the defendants commensurate with their specific (several) negligent contributions.

[51] She cited the case of Taylor v. Canada (Attorney General), 2009 ONCA 487 as support for the submission that the pleadings in this case leave nothing for the defendants to seek against the Third Parties by way of contribution.

[52] In Taylor, the plaintiff commenced a class action against Heath Canada for negligent regulation of a temporomandibular joint implant that allegedly caused her damages.

[53] Health Canada sought to add, as third parties, the dentist who had implanted the device as well as the hospital where the surgery took place. A motions judge refused to allow it to do so. The Court of Appeal upheld that decision.

[54] Laskin J.A. focused his analysis on whether there was a potential for Health Canada to be held liable for any negligent acts of the proposed third parties, if the third party claim were struck. He started by acknowledging the impact of Athey v. Leonati. Specifically, if a plaintiff sued only one of three tortfeasers who caused her indivisible injuries, then the one tortfeaser sued may be held 100% liable for all of the plaintiff’s damages, even if that defendant only had a 20% degree of fault. In such a situation, and to avoid a disproportionate share of the damages, the named defendant could join the other two tortfeasers to the action under ss. 1 and 5 of the Negligence Act.

[55] Laskin J.A. went on to observe, however, that contribution rights only arise where a defendant is required to pay more than its proportionate share of the plaintiff’s losses.

[56] For the purposes of this case, Skyline will only have a right of contribution against Bellwoods and/or Cunningham if it is required (or for our purposes here if there is a risk that it may be required) to pay more than its proportionate share of Mr. Paterson’s losses.

[57] In Taylor, the plaintiff had expressly limited her damage claim to the several damages attributed specifically to Health Canada. She used the following language in an amended iteration of her Statement of Claim:

81. The Plaintiff’s claim is against the Defendant for those damages that are attributable to its proportionate degree of fault, and she does not seek, on her own behalf or on behalf of the Class, any damages that are found to be attributable to the fault or negligence of any other person, or for which the Defendant could claim contribution or indemnity.

[58] Laskin J.A. held that because Ms. Taylor had limited her claim to those damages attributable to Health Canada’s fault, Health Canada could have no claim for contribution against any other party.

[59] In this case, Bellwoods argues that Mr. Paterson has similarly limited his claim for damages specifically attributable to the conduct of Skyline and/or Mr. Coulson. Skyline counters that Mr. Paterson’s limitation only extends as far as apportionment between Skyline and Coulson on the one hand, and Trillium Lakelands on the other. Skyline asserts that Mr. Paterson’s limitation is only an expression of the proportional sharing agreement it has entered into with Trillium. It does not provide any measure of comfort for Skyline in terms of the potential to be assessed damages caused or contributed to by a party other than Trillium.

[60] The language used by Mr. Paterson in his Amended Amended Statement of Claim is found in para. 26.2:

26.2 The Plaintiffs have agreed with the Defendant, Trillium Lakelands District School Board, that the Plaintiffs shall limit their claims against Defendants, Skyline and Bradley Coulson, to claims for damages, costs and interest attributable only to Defendants Skyline and Bradley Coulson’s several share of liability to the Plaintiffs such that the Plaintiff’s recovery shall be limited to recovering the damages, costs and interest attributable to Defendants Skyline and Bradley Coulson’s several share of liability as proven against the Defendant Skyline and/or the Defendant, Bradley Coulson, at trial.

[61] I agree with Skyline’s counsel that the language used in this case is markedly different from that used by Ms. Taylor in her claim against Health Canada. Apart from being comprised of a single, almost incomprehensible run-on sentence, the paragraph does not include the “fault or negligence of any other person” language found in Ms. Taylor’s claim. That said, on a generous reading, it may be interpreted to limit Mr. Paterson’s claim generally to the several liability of Skyline and Coulson.

[62] In my view, the language of the Statement of Claim must be considered in the context of the fact that there is a separate outstanding claim against Bellwoods. These pleadings, when considered together, make it clear that in this action, Mr. Paterson is seeking damages against Skyline and Mr. Coulson for their several shares of liability. They are not seeking damages against these defendants for any injuries caused or contributed to by the conduct of Bellwoods and/or Cunningham.

[63] It may be difficult to parse out just what injuries are the consequence of any particular party’s conduct. But as a matter of law, I find that Mr. Paterson’s claim is indeed limited in this action to the several liability of Skyline and Coulson. The determination of that several liability will, as a matter of law, leave nothing for Skyline to claim over against the Third Parties.

[64] I appreciate that Skyline would feel better not urging the jury to attribute a proportionate share of Mr. Paterson’s damages to a non-party (an “empty seat” as Mr. Chadderton aptly put it), but as a matter of law, that seat need not be filled in order for damages to be suitably apportioned: Taylor, as above, at paras. 27-28.

[65] In the result, I conclude that the claim as drafted, considered along with the nature of the Bellwoods Action, does not allow for an assessment of damages against Skyline that could trigger a claim for contribution against Bellwoods or Cunningham. Accordingly, the third party claim – which seeks only contribution and indemnity - is untenable in law and is struck.

Costs

[66] Counsel were ad idem in terms of the value of the motion. Costs are awarded to Bellwoods and Cunningham, on a partial indemnity basis, in the amount of $6,000, payable within 30 days.

Boswell J.

Released: October 1, 2018