Court File and Parties

COURT FILE NO.: 16-69877 DATE: 2019-01-08

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Mark Pittuck and Tanya Bruce and Connor Pittuck by his litigation Guardian, Mark Pittuck and Dylan Pittuck by his Litigation Guardian, Mark Pittuck Plaintiffs – and – Garwood/Feller Inc., and Navistar Canada, Inc. and Miller Industries International, Inc., and Canadian Towing Equipment Inc., and Sharkey’s Towing and Road Service Inc., and Edward Lister and HVL Ltd., and NISCO Inc., and Tallman Truck Centre Limited Defendants

COUNSEL: Brenda Hollingsworth and Richard Auger, for the Plaintiffs Shawn J. O’Connor, for the Defendants, Nisco Inc. and HVL Ltd.

HEARD: October 22, 2018

REASONS FOR DECISION

R. SMITH J.

[1] Nisco National Leasing, a division of HVL Ltd. (“Nisco”) has brought a motion for summary judgment seeking a dismissal of the claims against it by Mark Pittuck (“Pittuck”) and other derivative claims.

[2] Pittuck was injured on October 1, 2014 while operating a 2007 International tow truck on property that was not a public highway. A piece of equipment, that had been installed on the tow truck, called a “side puller” or “snatch block” broke loose while he was operating the tow truck to remove a van from his mother’s property. The device broke loose and hit him in the neck causing him very serious injuries. The term “tow truck” and “equipment” are used interchangeably in this decision. They include the tow truck and the towing apparatus attached to the truck, including the side puller.

[3] Nisco provided the financing by way of a lease to allow Pittuck to obtain possession of the 5-year-old tow truck from Edward Lister who operated as Sharkey’s Towing and Road Services Inc. (“Lister”).

[4] Pittuck signed an acknowledgement that he received the tow truck in “good condition” on August 16, 2012. As part of the lease financing arrangement, Lister signed a Bill of Sale to Nisco and Nisco became the legal owner of the tow truck. The tow truck was then leased to Pittuck and possession was given to Pittuck pursuant to a Lease Agreement (“the lease”) and Lease Addendum (“the addendum”), both of which were signed and dated August 16, 2012. The lease payments were also guaranteed by Sandra Tennant, who is Pittuck’s mother.

[5] Under the terms of the lease and the addendum, Pittuck agreed to the following:

• he chose the tow truck
• he was responsible to inspect the vehicle
• he undertook to confirm that he accepted the condition of the vehicle
• there were no warranties from Nisco and he acknowledged that Nisco was not a manufacturer or dealer in such equipment
• Nisco would not be liable to Pittuck for any loss or damages caused by the equipment
• the equipment was at his sole risk and that he was responsible to keep the equipment in good repair
• to indemnify Nisco for any claims arising from the use, operation or maintenance of the vehicle, and
• to maintain liability insurance for any liability imposed on Nisco by law, for the injury to any person.

[6] Pittuck arranged for a safety inspection of the tow truck to allow for the transfer of ownership from Lister to Nisco and then the lease to himself. He paid $2,291.57 to Tallman Truck Center for repairs to the steering mechanism that were required to pass the safety inspection for the transfer.

[7] The plaintiffs have made several allegations of negligence in their statement of claim, but in submissions they narrowed the allegations of Nisco’s negligence to either:

(a) Nisco failed to remove the “side puller” before the tow truck was delivered to Pittuck; or alternatively (b) Nisco failed to provide Pittuck with instructions on how to maintain the “side puller” that had been installed on the tow truck; and finally (c) Nisco gave possession of a vehicle to Pittuck that was in a dangerous condition.

[8] The plaintiffs admit that Nisco is not vicariously liable pursuant to s. 192(2) of the Highway Traffic Act, R.S.O. 1990, c. H.8, because the tow truck was not being operated on a highway within the meaning of the Act at the time Pittuck was injured.

[9] With regard to the allegation that Nisco failed to provide Pittuck with maintenance instructions for the side puller, the expert retained by Pittuck stated in his report that he had been unable to find any maintenance instructions for the side puller. Further he stated the manufacturer of the side puller was no longer in business. As a result there is no evidence before me that a maintenance manual for the “side puller” was available or ever existed.

ISSUES

(1) Is it appropriate to decide the issue of whether Nisco owed Pittuck a duty of care on a summary motion? (2) Does the Sale of Goods Act, R.S.O. 1990, c. S.1, apply to the lease and impose warranties that result in strict liability on Nisco as a retailer or Seller? (3) Did Nisco owe a duty of care to Pittuck to inspect the tow truck and to remove the side puller before giving him possession of the tow truck to ensure that it was not in a dangerous condition?

ISSUE #1

Is it appropriate to decide whether Nisco owed Pittuck a duty of care on a summary motion?

[10] Nisco has brought the summary motion seeking a dismissal of the action against it. The plaintiffs also seek a finding of negligence against Nisco pursuant to their motion per r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Alternatively, the plaintiffs seek a dismissal of Nisco’s summary motion on the basis that there are genuine issues requiring trial. The Master ordered that the matter could proceed on a summary motion before discoveries were held because the facts were essentially not contested.

[11] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court held that summary judgment motions must be granted whenever there is no genuine issue requiring a trial. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits of the motion. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[12] At para. 16 of Hryniak, the Supreme Court stated: The Court of Appeal set out a threshold test for when a motion judge could employ the new evidentiary powers available under Rule 20.04(2.1) to grant summary judgment under Rule 20.04(2)(a). Under this test, the “interest of justice” requires that the new powers be exercised only at trial, unless a motion judge can achieve the “full appreciation” of the evidence and issues required to make dispositive findings on a motion for summary judgment. The motion judge should assess whether the benefits of the trial process, including the opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to experience the fact-finding process first-hand, are necessary to fully appreciate the evidence in the case.

[13] While the moving party bears the onus of establishing that there is no genuine issue for trial, the responding party may not rely on mere allegations or denials, but must set out, in affidavit material or other evidence, specific facts showing there is a genuine issue requiring a trial. In this case, to avoid summary judgment the Plaintiffs bear the onus of satisfying the Court that there are material facts that require a trial to be decided. Courts have held that the party resisting the motion must “lead trump or risk losing”.

[14] In their factum the plaintiffs did not argue that there was a genuine issue requiring a trial. Rather, they sought a finding that Nisco was negligent and argued that Nisco had failed to contract out of its negligence in the lease agreement or in the addendum. However in submissions the plaintiffs submit that a trial is necessary to conduct the proximity analysis and to decide if Nisco owed a duty of care to Pittuck in the circumstances.

[15] Nisco submits that the facts are uncontested and that the proximity analysis may be conducted without a trial as the Court of Appeal recently did so in the case of Lavender v. Miller Bernstein LLP, 2018 ONCA 729, 142 O.R. (3d) 401, where the facts were not contested.

[16] The plaintiffs argue that a trial is required to determine whether Nisco owed a duty of care to inspect and remove the side puller or to have provided the plaintiffs with a maintenance manual before entering into the lease agreement giving Pittuck possession of the tow truck.

[17] The facts are not contested and the plaintiff has not put forward any evidence that he did not understand the terms of the lease or the addendum, including the waiver of liability provisions, wherein he acknowledged that Nisco was not a manufacturer or dealer in such equipment and that it did not provide any warranties to Pittuck, that he was solely responsible for choosing the used tow truck, inspecting it and maintaining it, and agreed that Nisco would not be liable for any loss, damage or expense of any kind caused by the equipment leased (i.e., the tow truck).

[18] The plaintiffs also submit that Nisco acted in a manner akin to a distributor/supplier/seller, and further submit that a distributor can be held liable where it puts into circulation a product in a dangerous condition, where the defect could and ought to have been discovered by due diligence on the distributor’s part. The plaintiffs argue that a trial is required to determine whether Nisco was a “supplier” or “distributor” of used tow trucks.

[19] The evidence is uncontested that Pittuck agreed that he located and chose the tow truck himself, agreed that Nisco was not a dealer in the equipment, and agreed that Nisco did not provide any warranties of any kind to him. Nisco is a leasing company and provided the financing to Pittuck by way of a lease to allow him to acquire possession of the tow truck. The plaintiffs have not produced any evidence that Nisco was, or that Pittuck reasonably believed that Nisco was, a distributor/supplier or seller of used tow trucks.

Disposition of Issue #1

[20] The facts are not contested and there are no credibility findings to be made. In addition, the plaintiffs have not produced any evidence that Nisco was a supplier or distributor or seller of used tow trucks. Further, the plaintiffs have not referred to any evidence requiring a trial to determine if the relationship was of sufficient proximity to establish that Nisco owed a duty of care to Pittuck to inspect and remove the side puller. As a result, I find that there is no genuine issue requiring a trial. In the circumstances, I am satisfied that I can reach a fair and just determination on the merits and that a summary motion allows me to make the necessary findings of fact, apply the law to the facts, and it is a proportionate and more expeditious and less expensive method of achieving a just result.

ISSUE #2

Does the Sale of Goods Act apply to the Lease to Pittuck and impose warranties which results in strict liability on Nisco as a retailer or seller?

[21] The Plaintiffs submit that:

• Nisco was a seller of the used tow truck and as such is responsible for its own acts of negligence; and,
• as a seller or retailer Nisco is strictly liable as a result of the statutorily implied warranties under the Sale of Goods Act.

[22] Nisco submits that the Sale of Goods Act has no application because the parties entered a commercial lease, which was not a contract for the sale of consumer goods.

Analysis

[23] Section 15 of the Sale of Goods Act reads as follows:

15 Subject to this Act and any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:

1. Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of a description that it is in the course of the seller’s business to supply (whether the seller is the manufacturer or not), there is an implied condition that the goods will be reasonably fit for such purpose, but in the case of a contract for the sale of a specified article under its patent or other trade name there is no implied condition as to its fitness for any particular purpose.

[24] The Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A, provides that “consumer” lease transactions have the benefit of the warranties which are applicable to “sales” under the Sale of Goods Act. However in this case Mr. Pittuck leased the tow truck for a commercial purpose and therefore he does not meet the definition of a consumer under the Consumer Protection Act.

[25] In addition, s. 15 of the Sale of Goods Act states that there is no implied warranty or condition as to the quality or fitness for any purpose of goods supplied under a contract of sale except where the buyer “expressly or by implication” makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relied on the seller’s skill or judgment. In this case Pittuck has not presented any evidence that he relied on Nisco’s skill or judgment for the quality or fitness of the equipment to be used as a tow truck. In fact, the uncontested evidence is set out in para. 8.1 of the lease, where Pittuck acknowledged that Nisco was not a dealer or manufacturer of the equipment and that Nisco did not make any warranty whatsoever about the quality or fitness for the purpose of use as a tow truck. Pittuck agreed that he assumed sole responsibility for choosing, inspecting, accepting, and maintaining the tow truck under the terms of the lease.

Disposition of Issue #2

[26] For the above reasons, including that the transaction was a commercial lease and not a consumer sale, whose terms were not contested, I find that there are no implied warranties under the Sale of Goods Act which apply to the commercial lease between the parties entered into for financing purposes.

ISSUE #3

Did Nisco owe a duty of care to Pittuck to inspect and to remove the side puller before giving him possession of the tow truck to ensure that it was not in a dangerous condition?

[27] Nisco submits that when conducting the proximity analyses the terms of the lease and addendum determine the scope of the rights that flow from the relationship. The lease and addendum removed any duty on the part of Nisco to inspect the tow truck, with the towing equipment attached to it, or to ensure that it was in good repair or to accept its condition, or to continue to inspect the equipment to ensure that it continued to be maintained in good repair. Nisco argues that it has fulfilled its duties, as agreed in the lease and addendum, and as such does not owe any further duty of care to fulfill duties that it had not agreed to assume which Pittuck agreed were his sole responsibility.

[28] Pittuck signed the Acknowledgement of Acceptance of the tow truck on August 16, 2012 acknowledging that he accepted the tow truck in the condition it was in at that time. The accident occurred over 2 years after Pittuck had accepted the condition of the 5-year-old tow truck with approximately 370,000 kilometers on the odometer.

[29] The plaintiffs argue that: (a) Nisco was negligent by failing to provide Pittuck with a maintenance manual for the side puller or alternatively for failing to remove the side puller before signing the lease and addendum and giving possession to Pittuck; (b) Nisco owed Pittuck a duty of care because harm to Pittuck was reasonably foreseeable and they were in a sufficiently proximate relationship; (c) Nisco did not contract out of responsibility for its own negligence in the lease and addendum in a sufficiently clear manner; and, (d) The language excluding or waiving Nisco’s responsibility for its own negligence was not sufficiently brought to Mr. Pittuck’s attention to ensure that he understood what he was signing.

[30] The clauses in the lease and addendum that limit the scope of Nisco’s duties are as follows: (1) Paragraph 2 – The Lessee is required to inspect the vehicle on delivery and advise whether the Lessee accepts the vehicle. On acceptance the lessee is thereafter precluded from asserting any claim or action based on the condition of the vehicle; (2) Paragraph 8 – The Lessee acknowledges that the Lessee has chosen the equipment and that the Lessor is not a manufacturer or dealer in such equipment, and that there are no warranties made by the Lessor. Lessor shall not be liable to the Lessee for any loss, damages or expenses of any kind or nature caused by the equipment; (3) Paragraph 9 – The equipment is at all times and in every respect at the risk of the Lessee. Lessee must at his own expense keep the equipment in good repair; (4) Paragraph 16 – The Lessee must indemnify the Lessor for claims arising from the use, operation or maintenance of the vehicle; (5) Paragraph 17(b) – The Lessee must place and maintain insurance against liability imposed by law on the Lessor or on the Lessee for injury or death of persons.

[31] In Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, the Supreme Court of Canada adopted the decision in Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), which adopted the decision of the House of Lords in McAlister (Donaghue) v. Stevenson, [1932] A.C. 562 (H.L.) (see Cooper at paras. 22-39). The Supreme Court in Cooper (at para. 22) articulated the single negligence principle established in Anns as follows:

Henceforward liability would lie for negligence in circumstances where a reasonable person would have viewed the harm as foreseeable. However, foreseeability alone was not enough; there must also be a close and direct relationship of proximity or neighbourhood.

[32] At para. 30 of the Cooper decision, the Supreme Court stated as follows:

At the first stage of the Anns test, two questions arise: (1) was the harm that occurred the reasonably foreseeable consequence of the defendant’s act? and (2) are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here? The proximity analysis involved at the first stage of the Anns test focuses on factors arising from the relationship between the plaintiff and the defendant. … If foreseeability and proximity are established at the first stage, a prima facie duty of care arises. [Emphasis in original].

[33] At para. 33 of the Cooper decision, the Supreme Court quoted from para. 24 of Hercules Management Ltd. v Ernst & Young, [1997] 2 SCR 165 as follows:

The label “proximity”, as it was used by Lord Wilberforce in Anns, supra, [sic] was clearly intended to connote that the circumstances of the relationship inhering between the plaintiff and the defendant are of such a nature that the defendant may be said to be under an obligation to be mindful of the plaintiff’s legitimate interests in conducting his or her affairs. [Emphasis in original].

[34] At para. 32 of the Lavender decision, the Court of Appeal stated as follows:

The proximity analysis determines whether the parties are sufficiently “close and direct” that it would be “just and fair having regard to their relationship to impose a duty of care”: Livent, at para. 25, citing Cooper, at paras. 32 and 34. As most recently reaffirmed by the Supreme Court in Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19, at para. 23, that close and direct relationship must be such that “the defendant is under an obligation to be mindful of the plaintiff’s interests.”

[35] At para. 34 of Cooper, the Supreme Court stated that defining the relationship with regard to proximity may involve looking at the expectations, representations, reliance, and the property or other interests involved. In this case, Pittuck chose the used tow truck and agreed that Nisco did not provide any warranty of the fitness or the condition of the tow truck and Pittuck assumed the sole responsibility to inspect and to accept the condition of the equipment. As a result, Pittuck did not have any expectation nor did he rely on Nisco to inspect the condition of the tow truck or to maintain the equipment, which included the “side puller” installed on the tow truck.

[36] In Lavender, the Ontario Court of Appeal upheld an appeal from a summary motion decision which decided that an auditor did not owe a duty of care to a class in relation to its audit of the Form 9 Reports filed with the Securities Commission because the claim failed due to a lack of proximity.

Reliance and Undertaking

[37] At para. 35 of Lavender, the Court of Appeal stated that where the defendant undertakes to provide a service or makes a representation in circumstances that invites a plaintiff’s reasonable reliance, the defendant becomes obligated to take reasonable care, and the plaintiff has a right to rely on the defendant’s undertaking to do so.

[38] At para. 36 of Lavender, the court stated that proximity analyses not only determines the existence of a relationship which exists, in this case as lessor and lessee, but also determines the rights and duties which flow from that relationship:

However, the plaintiff’s reliance must be within the scope of the defendant’s undertaking – that is, the purpose for which the representation was made or the service was undertaken. Anything outside that scope will fall outside the scope of the proximate relationship and the defendant’s duty of care; the defendant cannot be liable for a risk of injury against which it did not undertake to protect. [Citations omitted.]

[39] In this case, Nisco and Pittuck have limited the scope of any undertaking by Nisco by the terms of the lease and addendum, wherein Pittuck assumed sole responsibility for inspecting, accepting and maintaining the condition of the equipment, and agreed that Nisco did not give him any warranty. In the lease and addendum, Nisco and Pittuck defined the scope of Nisco’s undertaking and it was not reasonably foreseeable for Pittuck to rely on Nisco to inspect or maintain the tow truck which were duties assumed by him with regards to the equipment.

[40] Nisco did not make any representations or undertake to Pittuck that it would inspect the condition of the tow truck or the towing equipment attached to it or that it would continue to inspect and ensure that the tow truck was well maintained. In fact, the parties specifically agreed that Pittuck was solely responsible for inspecting and accepting the condition of the used tow truck. Pittuck agreed that he accepted the condition of the tow truck as delivered to him by Lister and agreed not to make any claim for any damages against Nisco. In this situation Pittuck cannot rely on an undertaking or a failure to fulfill an undertaking by Nisco that was outside of the scope of Nisco’s undertaking. Nisco did not undertake to inspect the condition of the tow truck or to ensure it continued to be properly maintained for over two years after Pittuck accepted its condition. Pittuck assumed this sole responsibility.

[41] Pittuck did not have a reasonable expectation that Nisco would have inspected the tow truck or satisfied itself of the condition of the truck or of the towing equipment installed on the truck, including the “side puller”. Indeed, Pittuck did not rely on Nisco to do any of these things; rather, Pittuck assumed sole responsibility for them. The purpose and expectation of the parties to the lease agreement was that Nisco would finance the acquisition of the tow truck by Pittuck. Pittuck did not expect or rely on Nisco to inspect the condition of the equipment or to maintain the equipment in good repair while in his possession.

[42] Pittuck also acknowledged that Nisco was not a manufacturer or a dealer in such equipment and agreed that Nisco did not give him any warranty with regards to the tow truck. This is consistent with the purpose of the lease being to finance the acquisition of the tow truck by Pittuck.

[43] In the circumstances I find that it was not reasonably foreseeable that Pittuck would rely on Nisco to inspect the condition or to maintain the tow truck and the equipment installed on it in a good and safe condition because these responsibilities were assumed solely by Mr. Pittuck and were agreed to by him under the terms of the lease. The responsibility and scope of Nisco’s undertaking were limited by the lease and addendum and, as such, I find there is not a relationship of sufficient proximity and that Nisco did not owe a duty of care to Pittuck beyond the scope set out in the lease and addendum.

Expert Opinion Evidence

[44] The plaintiffs rely on an opinion of Mr. Patten where he stated that Nisco was required to prepare the vehicle after a full inspection of the truck. This opinion ignores the specific terms of the lease where Pittuck assumed sole responsibility for choosing, inspecting, accepting the condition and maintaining the equipment in good repair. Mr. Patten appears to erroneously treat Nisco as a dealer in this type of equipment (used tow trucks) contrary to Pittuck’s specific agreement in the lease that Nisco was “not” a dealer in this type of equipment.

[45] Mr. Patten is a technical expert and has expertise in the area of the side puller’s design, maintenance, documentation, and after product support. However I do not place any weight on Mr. Patten’s opinion on Nisco’s negligence as he has no special expertise in this area and he has ignored the terms of the lease and addendum which state that the responsibility for inspection and accepting the condition and ongoing maintenance of the tow truck were assumed solely by Mr. Pittuck. These duties were outside of any undertaking by Nisco and there is no possibility that Pittuck relied on Nisco to inspect the condition of the tow truck or any accessory towing devices attached to the vehicle or relied on Nisco to conduct ongoing maintenance of the equipment.

[46] With regards to Nisco’s obligation to provide documentation to Pittuck on how to inspect, test, service and maintain the side puller so it could perform safely, Mr. Patten was unable to find any such documentation. In addition, Pittuck assumed sole responsibility for inspecting and maintaining the tow truck and any accessories. Mr. Patten appears to be treating Nisco as a manufacturer or a dealer in such equipment, which the parties specifically agreed was not the case.

Right to Contract

[47] In Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313, 140 O.R. (3d) 241, the Court of Appeal stated that where a contract limits the tort duty, the tort duty must yield to the parties’ right to arrange their rights and duties as they may decide. Citing BG Checo International Ltd. v. British Columbia Hydro & Power Authority, [1993] 1 S.C.R. 12, at para. 16, the Court of Appeal stated at para. 48 of its decision in Schnarr:

The rule is not that one cannot sue concurrently in contract and tort where the contract limits or contradicts the tort duty. It is rather that the tort duty, a general duty imputed by the law in all the relevant circumstances, must yield to the parties’ superior right to arrange their rights and duties in a different way.

[48] In the case at bar, the parties arranged their rights by contract; namely, by signing the lease and addendum, wherein they agreed that Pittuck assumed sole responsibility for the inspection of the equipment, for accepting the condition of the used tow truck and the accessories attached thereto, and all ongoing maintenance of the tow truck and accessories. In this situation, I find that the terms of the contract (namely, the lease and addendum) take precedence over any possible tort claim by the plaintiffs.

[49] In Tercon Contractors Ltd. v. British Columbia (Minister of Transportation and Highways), 2010 SCC 4, [2010] 1 S.C.R. 69, at para. 82, the Supreme Court of Canada confirmed the public interest in freedom of contract and held that, absent a paramount overriding public policy consideration, exclusion clauses should be enforced.

[50] In Tercon, at paras. 121-23, the Supreme Court set out the framework for analyzing the applicability of an exclusion clause:

(a) As a matter of contractual interpretation, does the exclusion clause apply to the circumstances as established by the evidence in the case? (b) If the exclusion clause applies, was the clause unconscionable at the time the contract was made, as might arise from situations of unequal bargaining power between the parties? (c) If the exclusion clause is held to be valid and applicable, should the Court nevertheless refuse to enforce the clause because of the existence of an overriding public policy concern?

[51] As a matter of contractual interpretation the terms of the lease and addendum exclude any responsibility by Nisco to inspect, to accept the condition of or to maintain the equipment in a good condition. I also agree with Nisco’s submission that the lease contract was not unconscionable at the time it was made and that the purpose of the lease was to finance the acquisition of the tow truck by Mr. Pittuck.

Agreement to Insure

[52] Pittuck also assumed the risk by agreeing to take out insurance. In St. Lawrence Cement Inc. v Wakeham & Sons Ltd. (1995), 26 OR (3d) 321, a claim involving a barge damaged while under tow, the Ontario Court of Appeal stated as follows, at p. 327:

In my opinion, the respondent’s agreement to be responsible for insuring the “Robert Koch” and its cargo could have no purpose other than to relieve the appellant from liability for losses caused by its negligence.

[53] Nisco submits that Pittuck’s covenant to insure was an assumption of the risk of personal injury by the plaintiff from the use of the vehicle and that this is consistent with the assumption of risk that is clearly set out in the lease. Nisco states that the assumption of risk by Mr. Pittuck can have no purpose other than to relieve Nisco from liability for any claims of negligence and is a bar to Pittuck recovering damages from it. This is consistent with the clause releasing Nisco from any liability for damage claims and with the promise to indemnify Nisco for any claims arising out of the use, operation, or maintenance of the vehicle, as set out in the lease.

Disposition of Issue #3

[54] For the above reasons, I find that Nisco did not owe a duty of care to Pittuck to inspect, accept the condition of the tow truck or maintain the tow truck and its accessories, including the side puller, in good condition on an ongoing basis, as these responsibilities were assumed solely by Pittuck. The plaintiffs failed to establish a relationship of sufficient proximity because the scope of Nisco’s duty was limited by the terms of the lease and addendum. I therefore grant Nisco’s motion for summary judgment dismissing the claims against it by Pittuck.

Costs

[55] Nisco may make brief written submissions (not to exceed 7 pages) on costs within 10 days. Pittuck shall have 10 days to respond and Nisco shall have 7 days to reply.

R. Smith J Released: January 08, 2019

COURT FILE NO.: 16-69877 DATE: 2019-01-08

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Mark Pittuck and Tanya Bruce and Connor Pittuck by his Litigation Guardian, Mark Pittuck and Dylan Pittuck by his Litigation Guardian, Mark Pittuck and Sandy Tennant (Guarantor) Plaintiffs

• And - Garwood/Feller Inc., and Navistar Canada, Inc. and Miller Industries International, Inc. and Canadian Towing Equipment Inc. and Sharkey’s Towing and Road Service Inc. and Edward Lister and HVL Ltd., and Nisco Inc. and Tallman Truck Centre Limited Defendants

REASONS FOR JUDGMENT R Smith, J Released: January 08, 2019