Court File and Parties

COURT FILE NO.: CV-23-91613 DATE: 2024 12 16 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LINDA KING, Plaintiff AND: SUZAN FERGUS and ARTISTIC LANDSCAPE DESIGNS LIMITED, Defendants

BEFORE: C. MacLeod RSJ

COUNSEL: John Hammond, for the Plaintiff (Moving Party) Jennifer Therien, for Defendant Fergus Leah Dick, for Defendant, Artistic Landscape

HEARD: December 16, 2024

Endorsement

[1] This is a personal injury action arising from an accident said to have occurred when the plaintiff tripped on uneven interlock steps on premises owned by the defendant Fergus. The defendant, Artistic Landscape Designs Limited was said to be responsible for the design and installation.

[2] The plaintiff has settled with the defendant landscaper but not with the homeowner. This is what is commonly referred to as a “Pierrenger Agreement” or a proportionate share settlement agreement. In theory this allows the settling defendant to cap its liability by paying a fixed sum to the plaintiff which amount will not be disclosed to the non-settling defendant or to the court until after the trial. The plaintiff agrees to pursue the remaining defendant only for its proportionate share of the damages rather than seeking the joint and several liability provided by s. 1 of the Negligence Act. [1]

[3] The motion before the court is a motion permitting the plaintiff to amend the statement of claim in order to delete the claim against Artistic Landscaping and to amend the claim against Fergus to limit the claim only to “her direct and several share of liability”.

[4] Originally counsel for Fergus declined to consent to the amendment and also declined to consent to the proposed order. The reason for declining to consent was twofold. Firstly, the proposed amended claim did not make reference to the Pierrenger Agreement and did not make it clear that the court would still be required to apportion fault between the original co-defendants (and the plaintiff if there is found to be contributory negligence). It is inherent in the nature of a Pierrenger Agreement that the non settling defendant can only be held liable for damages if it is found at fault and only for the percentage of fault attributed to it. The court must still assess the percentage of fault, if any, for which the settling defendant would have been liable.

[5] As I understand it, this has been resolved by agreement that counsel will make this point clear at the opening of trial. Counsel for the defendant and the plaintiff will advise the court that although the plaintiff is no longer pursuing the other original co-defendant, the court must nevertheless determine if there was fault on the part of either defendant and must determine the percentage, if any, that Fergus is at fault. Fergus will not be held liable under any circumstances for any fault that may be attributed to the landscape contractor.

[6] The second issue relates to the draft order. The draft included dismissal of the cross claim by Fergus against Artistic Landscape. The draft did not contain a dismissal of the cross claim by Artistic against Fergus but I understand that was an oversight. Counsel for Artistic Landscape agrees that its crossclaim should be dismissed.

[7] In Pierrenger agreements, it is common to seek the agreement of the non settling defendant to drop the crossclaim. This is because the plaintiff will normally have agreed to cap the damages of the settling defendant at the amount the settling defendant has agreed to pay. The plaintiff will also indemnify the settling defendant and will ordinarily agree not to pursue any party that could make a claim over.

[8] While the plaintiff did not include the Pierrenger Agreement in its motion materials, a redacted copy was provided to the defendant and appears in the responding record. Paragraph 4 of the agreement contains the covenant not to pursue the settling defendant for more than the (redacted) amount the defendant has paid. Paragraph 8 contains an agreement to limit the claim against the non-settling defendant “so as to exclude any crossclaim or third party claim made against or which could be made against the settling defendant”. Paragraph 10 provides that the plaintiff agrees not to seek “recovery from the non-settling defendant for any amount which the non-settling defendant would be entitled to recover from the settling defendant.”

[9] The plaintiff faced a problem in this case because the non-settling defendant was not a party to the Pierrenger Agreement and could not be compelled to drop its crossclaim. A similar situation was described by the Court of Appeal in Maio v. Kapp Contracting Inc., 2022 ONCA 196. [2] An agreement between two parties to litigation cannot curtail the rights of a party that is not a party to the agreement. Unless the amendments to the claim clearly remove the basis for any claim to contribution and indemnity by the non-settling defendant then that defendant acts entirely reasonably by maintaining its crossclaim.

[10] The defendant has now agreed to dismissal of the crossclaim. It does so because the plaintiff is not only amending the claim to limit its claim against the non-settling defendant but has also agreed with the non settling defendant how the issues for trial will be defined.

[11] Under those circumstances I will grant an order amending the claim and dismissing both crossclaims. Counsel for the plaintiff is to provide a draft order amended to reflect the dismissal of all crossclaims and attaching the form of the amended claim as “Schedule A”. [3]

[12] The motion remained on the motions list this morning because the moving party plaintiff was seeking costs against the non-settling defendant. That request for costs was misguided. It was entirely reasonable for Mr. Peloso to withhold his consent until he was satisfied that his (non-settling and non-party to the Pierrenger) client was protected. Moreover, as a non-party to the Pierrenger, Fergus is under no obligation to assist the plaintiff to implement the agreement. No defendant or other party is entitled to be obstructionist or to force another party to run up costs but that is not what occurred here.

[13] The plaintiff is not entitled to costs.

Justice C. MacLeod Date: December 16, 2024

[1] RSO 1990, Chapter N.1, as amended [2] Maio v. Kapp Contracting Inc., 2022 ONCA 196 [3] The draft uploaded to Case Center referenced Schedule A but did not attach it.