Court File and Parties

Court File No.: 79524/12 Date: 2019-07-02 Ontario Superior Court of Justice

Between: Cole Parliament, an incapable person by his Litigation Guardian, Kimberley York, John Parliament, and the said Kimberley York personally, Plaintiffs And: D.W. Conley and V. Park, Defendants

Counsel: H. Elmaleh and M. Hershkop, for the Plaintiffs D. Cruz, D. Charach, and J. Ur, for the Defendants

Heard: June 27, 2019

Before: Woodley J.

Reasons for Decision Regarding Contributory Negligence Claim

Part I: Overview

[1] In this action, the plaintiff, Cole Parliament claims through his litigation guardian, Kimberley York, together with his parents, Kimberley York and John Parliament, in their personal capacity, for damages arising out of Cole’s brain injury suffered during infancy. The plaintiffs allege medical negligence on the part of the defendant physicians, Dr. D.W. Conley and Dr. V. Park.

[2] The trial of this action commenced on May 13, 2019, a jury was selected, and the plaintiffs opened their case on May 14, 2019. The plaintiffs’ final witness was called on June 12, 2019, and the defendants opened their case on June 17, 2019. The trial is ongoing.

[3] In their Statement of Defence, the defendants pleaded contributory negligence against Ms. York pursuant to the Negligence Act, R.S.O. 1990, c. N.1, as amended. On the first day of the trial, the defendants amended their pleadings to include the defence of novus actus interveniens against the plaintiff mother, Ms. York, for the injuries suffered by Cole when he was an infant.

[4] The parties were unable to agree on the form of jury questions. During discussion, it became apparent that the following further outstanding issues required determination:

a. Does novus actus interveniens apply to the within proceeding?; and

b. If successful, does the contributory negligence claim advanced against Ms. York reduce the global quantum of damages or only the damages payable to Ms. York?

[5] I directed that the parties file materials and the matters were heard by me on June 27, 2019.

[6] On June 28, 2019, I released my reasons relating to the applicability of novus actus interveniens and the form of the jury questions. However, I reserved my decision relating to contributory negligence: see Parliament et al. v. Conley and Park, 2019 ONSC 3996.

[7] These are my reasons relating to contributory negligence.

Facts

[8] The plaintiffs issued their Statement of Claim on July 30, 2012, and it was served upon the defendants Dr. Park and Dr. Conley, on August 7 and September 12, 2012, respectively.

[9] In their Statement of Defence delivered on September 19, 2013, the defendants denied all negligence on their parts. The defendants denied that the plaintiffs suffered the damages alleged. In the alternative, that if the plaintiffs suffered damages: (a) the damages are too remote and excessive to be recoverable and/or were not properly mitigated; (b) the damages were not attributable to any act or omission of the defendants, nor on the part of anyone for whom they are in law responsible, but are injuries and damages which were caused or contributed to by (i) pre-existing or independently arising conditions; (ii) the plaintiffs’ failure or refusal to follow medical advice; (iii) the plaintiffs’ failure or refusal to seek medical advice or care on a timely basis; and/or (iv) other acts or omissions of the plaintiffs. The defendants also pleaded and relied on the provisions of the Negligence Act.

Part II: Issues and the Law

[10] The plaintiffs concede that if Ms. York is found to have been negligent, the defendants can claim a set-off from Ms. York to the extent of her degree of fault with respect to damages that she is personally awarded. Thus, contributory negligence will go to the jury.

[11] The issue that remains is whether the plaintiffs’ entire damage award should be reduced by the jury’s finding that Ms. York was contributorily negligent.

[12] The defendants submit that the plaintiffs’ global quantum of damages must be reduced if contributory negligence is found, based on the principle of contribution and indemnity. The defendants, in part, rely on ss. 2 – 3 of the Negligence Act to support their position:

Recovery as between tortfeasors

2. A tortfeasor may recover contribution or indemnity from any other tortfeasor who is, or would if sued have been, liable in respect of the damage to any person suffering damage as a result of a tort by settling with the person suffering such damage, and thereafter commencing or continuing action against such other tortfeasor, in which event the tortfeasor settling the damage shall satisfy the court that the amount of the settlement was reasonable, and in the event that the court finds the amount of the settlement was excessive it may fix the amount at which the claim should have been settled.

Plaintiff guilty of contributory negligence

3. In any action for damages that is founded upon the fault or negligence of the defendant if fault or negligence is found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively.

[13] The defendants argue that s. 3 of the Negligence Act references apportionment of “the damages” found against “the parties”. The defendants argue that the use of plural language in the section denotes all damages and all parties, including damages payable to Cole who could never be found contributorily negligent.

[14] The defendants submit that the global quantum of damages have been reduced by courts due to the contributory negligence of an uninjured plaintiff: Rizzuto v. St. Michael’s Hospital, 1997 CarswellOnt 3541 (Ont Ct. (Gen. Div.)); Singer v. Martin, 1990 CarswellBC 1207 (B.C. Sup. Ct.). The defendants further submit that global damages have been reduced due to the principle of contribution and indemnity against a tortfeasor plaintiff based on the specific allegations contained in the Statement of Defence and reliance on the Negligence Act: Sgro v. Verbeek, 1980 CarswellOnt 832 (Ont S.C.J).

[15] I cannot accept these arguments for the following reasons.

[16] The subject matter of s. 3 of the Negligence Act is “the plaintiff” and “the defendant”. Both descriptors are used singularly. The terms “damages” and “parties” do not affect the singular subject references to “the plaintiff” and “the defendant”. Further, the use of the term “the damages” is merely the correct descriptive term for the type of relief sought by “the plaintiff” as in, “the plaintiff seeks damages against the defendant”.

[17] A proper reading of s. 3 of the Negligence Act requires the court to apportion the damages between “the plaintiff” and “the defendant” by way of set-off. Section 3 does not require or contemplate apportionment beyond a singular plaintiff and a singular defendant.

[18] The subject matter of s. 2 of the Negligence Act is “a tortfeasor” and “any other tortfeasor”. Again, both descriptors are used singularly. Section 2 requires “a tortfeasor” to settle with “the person suffering damage” and then requires “the tortfeasor” to commence or continue a claim against such other tortfeasor to obtain recovery. Section 2 requires a claim be issued against the other tortfeasor and a defendant cannot assert such a claim for contribution and indemnity in the Statement of Defence as was the practice under the pre-1985 Rules: see “Rule 27 – Counterclaim Highlights” in Derek McKay & Michael McGowan, eds., Watson & McGowan's Ontario Civil Practice 2018 (Toronto: Thomson Reuters, 2018) and former rules, rr. 44-47, 58(5), 114-119.

[19] Finally, I find that Sgro does not assist in the determination of this issue; the Rules were amended following the release of this decision. With regards to the applicability of Rizzuto and Singer, both decisions lack analysis of the reasoning process that would allow this Court to apply contributory negligence in the manner suggested by the defendants. Indeed, for the reasons set out herein, I am of the view that the decisions in this regard are flawed and I would not rely upon them. Instead, I prefer and adopt the reasoning of Master Dash in Goma v. Raghunandan, 2011 ONSC 6598, 38 C.P.C. (7th) 183, where it was held that a defendant cannot claim contribution and indemnity against plaintiff A for the damages claimed by plaintiff B by pleading equitable set-off in the Statement of Defence. Such claims must be advanced by counterclaim.

[20] On principle, the defendants submit that the plaintiffs are not prejudiced against the apportionment of global damages because Cole’s potential claim in negligence against Ms. York is not statute-barred. Ms. York is Cole’s litigation guardian only as it relates to the claim against Dr. Conley and Dr. Park. As a result, the limitation period as it relates to Ms. York has not elapsed and therefore Cole is able to seek recovery.

[21] Determining whether a claim by Cole against his mother, Ms. York, is statute-barred is not relevant to my determination as to whether a claim of contribution and indemnity or contributory negligence against Ms. York can be found as it relates to the defendants.

[22] Indeed, the court is directed by Rule 27.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides:

Against the Plaintiff

27.01 (1) A defendant may assert, by way of counterclaim in the main action, any right or claim against the plaintiff including a claim for contribution or indemnity under the Negligence Act in respect of another party’s claim against the defendant. [Emphasis added.]

[23] The defendants claim that the use of the word “may” indicates that the requirement to issue a counterclaim is permissive. The defendants argue that the permissive language allows a party to choose to proceed by way of counterclaim or claim relief against a plaintiff in their Statement of Defence. This is incorrect. The use of the permissive term “may” merely denotes that a defendant is not required to seek relief against a plaintiff.

[24] If a defendant seeks to claim against a plaintiff for contribution and indemnity, r. 27.01 alters the practice established under the pre-1985 Rules of Civil Procedure of asserting such a claim for contribution and indemnity in the Statement of Defence. As a result of r. 27.01(1), a claim for contribution and indemnity by a defendant should be made by way of counterclaim.

[25] Counterclaims, being claims that could be independently asserted by way of a separate proceeding are subject to limitation periods. In respect of counterclaims for contribution and indemnity, s. 18 of the Limitations Act, 2002, S.O. 2002, c. 24, provides that the limitation period begins to run on the day the counterclaiming defendant was served with the plaintiff’s claim: Placzek v. Green, 2009 ONCA 83, 245 O.A.C. 220, at para. 24.

[26] A defendant who has delivered a Statement of Defence without a counterclaim and who wishes to amend his or her pleadings to add a counterclaim against the plaintiff or the plaintiff and an existing party may do so: (a) before the close of pleadings without leave, or (b) after close of the pleadings either on consent of all parties or with leave of the court: Rules of Civil Procedure, rr. 27.07(1) and 26.02(a), (b) and (c). The amended pleading must conform with the rules for amending pleadings generally: Rules of Civil Procedure, rr. 27.07(1) and 26.03.

[27] In this case, the limitation periods for both Dr. Park and Dr. Conley began to run on August 7 and September 12, 2012, respectively. The defendants in this case did not counterclaim against Ms. York in their Statement of Defence or within the two-year standard limitation period: Limitations Act, ss. 4, 5(2), and 18.

[28] Moreover, although the presumptive limitation period start date can be rebutted by the principles of discoverability, the defendants did not bring any claims for contribution or indemnity against Ms. York within two years of her examination for discovery on March 21, 2014: Limitations Act, s. 5.

[29] Even if leave was granted to the defendants to amend their pleadings to add Ms. York as a defendant by counterclaim, the limitation period has passed. In addition, significant prejudice to the plaintiffs would inevitably result by such an amendment.

[30] Therefore, the defendants by virtue of s. 18 of the Limitations Act are statute barred from now counterclaiming against Ms. York for contribution and indemnity to reduce the global quantum of damages.

Part III: Conclusion

[31] In conclusion, while the question of contributory negligence shall be put to the jury, if the jury finds Ms. York to be contributorily negligent, the court shall apply the jury’s finding to apportion the damages payable to Ms. York as between the defendants and Ms. York in proportion to the degree of fault or negligence found against the defendants and Ms. York respectively. However, there shall be no reduction or apportionment applied to the damages found owing to Cole Parliament and/or John Parliament.

Justice S. J. Woodley Released: July 2, 2019