QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 309 Date: 2012 08 01 Docket: Q.B.G. No. 592 of 2012 Judicial Centre: Saskatoon BETWEEN: STUART OLSON DOMINION CONSTRUCTION LTD., and WILLIAM J. SCHMIDT, Counsel: No one appearing for the plaintiff Dale W.J. Brown for the applicant SGI Blair P. Bleakney for City of Saskatoon FIAT ACTON J. August 1, 2012 [1] This is an application by Saskatchewan Government Insurance on behalf of the defendant for an order pursuant to Rule 107A(c) of The Queen’s Bench Rules and s. 7 of The Contributory Negligence Act, R.S.S. 1978, c. C-31, granting leave to the defendant, William J. Schmidt, to add the City of Saskatoon as a third party to this action. [2] The defendant is being sued by the plaintiff for damage to construction site under the Senator Sid Buckwold Bridge in Saskatoon, caused as result of his truck leaving the surface of the road at the head of the bridge going over the guardrail and falling into the excavation pit. [3] The defendant alleges that the road condition was icy on the exit ramp leading up to the Buckwold Bridge and the City of Saskatoon had not taken steps to address the icy road surfaces. The ice and snow had built up along the edge of the road such that it acted as ramp that lifted the truck up and over the guardrail to land in the excavation site. [4] The defendant wishes to add the City of Saskatoon as third party to this action. [5] The law respecting an application to add third parties in Saskatchewan is set out in the recent case of Koskie v. Canadian Pacific Railway Co., 2011 SKQB 458 (CanLII), [2011] S.J. No. 821 (QL), wherein Currie J. states at para. [8] In Saskatoon Roman Catholic Separate School Division No. 20 v. Dunmac General Contractors Ltd., 2002 SKQB 404 (CanLII), [2002] S.J. No. 601 (Sask. Q.B.) at para. 9, Justice McIntyre summarized the process of determining whether to grant leave to add third party under that Act: (a) determination should be made as to whether the third party notice establishes prima facie claim against the proposed third party; (b) If it does, then determination of whether causal connection exists between the cause of action pled in the statement of claim and the cause of action pled in the third party notice is necessary; (c) If there is causal connection the application may be dismissed where extreme hardship or prejudice would result and directions cannot materially relieve against it. [6] This issue was also considered by the Saskatchewan Court of Appeal in MacPherson Engineering Inc. v. Regina (City), 2008 SKCA 144 (CanLII), 314 Sask. R. 182, wherein the court stated in paras. [6] In B. (D.) v. C. (M.), 2011 SKCA (CanLII), [2001] W.W.R. 617, this Court affirmed that Chambers judge will consider the same principles whether the application is pursuant to s. of the Act or Part Seven IV of The Queen’s Bench Rules in determining whether to grant leave to issue third party claim. These principles were summarized in MacDonald v. Hauer (1965), 1965 CanLII 438 (SK CA), 49 D.L.R. (2d) 365, at p. 372, as follows: ... the defendant serving the third-party notice need only raise claim, which, if established, would entitle him as against the third party, to one of the forms of relief referred to ... The application is purely one of procedure and no substantive rights between the parties can be determined on it. It is not proper to assess evidence or to go into possible defences. For this reason the material filed in denial of the claim raised in the third-party notice or that designed to oppose it on its merits should not be considered. Any important questions of law raised are better left for the trial. There must, however, be some material by which the prima facie claim of the respondent is shown. [7] On leave applications pursuant to s. of the Act, Jackson J.A. in B. (D.) v. C. (M.) stated at para. 9: While leave is required under s. of The Contributory Negligence Act, it does not elevate the standard beyond that established for third party notices under Rules 107 to 107(I). The Court balances the same factors of prejudice to the plaintiff and the expediency of one, rather than multiple, proceedings. The Court considers such applications from perspective of being disposed to grant them subject to certain well-defined criteria and the need to protect the plaintiff in certain circumstances. [8] Hence, the issue before the Chambers judge was to determine whether MacPherson had filed material which established prima facie claim against the City and whether there was any prejudice to the plaintiff if the Third Party Claim was grafted onto the plaintiff’s action. [7] The issue was also addressed by Allbright J. in Bucsis v. Rocy Housing Ltd., 2009 SKQB 271 (CanLII), 336 Sask. R. 1, where he stated at para. [17] As these passages demonstrate, it is incumbent upon me, as the Chambers judge, to ascertain or determine whether the defendant, Rocy (applicant), has filed material which establishes prima facie claim against the proposed third party, Future Exteriors Ltd., and whether there was any prejudice to the plaintiffs if the third party claim was to go forward as proposed. This latter aspect involves assessing what actual or potential prejudice may be experienced by the plaintiffs. He went on further in para. 19 to state: ... am satisfied from review of all of the pleadings, and particularly the proposed third party claim, that this pleading does establish prima facie claim against the proposed third party Future Exteriors Ltd. From the pleadings, it would appear that the third party was major player in undertaking the work which is the subject of the plaintiffs’ loss and claim. To refuse the application under s. of The Contributory Negligence Act, would likely result in the requirement for second litigation process to be commenced, that being by the defendants against the proposed third party claiming contributory negligence. This would to large extent create legal process almost wholly duplicating that which is embodied in the litigation to this stage. Courts have been vigilant to attempt to prevent such duplicate processes where the issue of prejudice could be addressed through direction and order from the Court on the combined process as an alternative. [8] In the current situation the defendant has already commenced separate action Q.B.G. No. 533 of 2012, against the City of Saskatoon for damages resulting from the truck leaving the road. The statement of claim has been served and the defendant has prepared and served statement of defence. No further action has been taken in these proceedings. [9] The additional action was commenced due to limitation periods and the applicant argues that adding the City to this action will allow all damages to be considered and where responsibility should lie for damages arising from the truck leaving the road in one proceeding. [10] The City of Saskatoon opposes the application and argues that s. 308 of The Cities Act, S.S. 2002, c. C-11.1, which reads: 308 city is not liable for damage caused: (a) by the presence, absence or type of any wall, fence, guardrail, railing, curb, pavement markings, traffic control device or barrier; or (b) by or on account of any construction, obstruction or erection or any situation, arrangement or disposition of any earth, rock, tree or other material or thing adjacent to or in, along or on street that is not on the travelled portion of the street. [11] The City also referred this court to the case of Truong v. Saskatoon (City), 2001 SKQB 419 (CanLII), 211 Sask. R. 115, wherein Wilkinson J. stated at para. [77] There is yet another ground on which the City is absolved from liability. The Supreme Court of Canada in Lewis [1997 CanLII 304 (SCC), 220 N.R. 81, 153 D.L.R. (4th) 594], recognized that it was entirely permissible for local authority to limit its liability. Section 154(1.1) of The Urban Municipality Act, 1984 states: 154(1.1) No action may be brought pursuant to subsection (1) for the recovery of damages: (a) caused by the presence or absence or insufficiency of wall, fence, guardrail, railing or barrier; or (b) caused by or on account of any construction, obstruction or erection or any situation, arrangement or disposition of any earth, rock, tree or other material or thing, adjacent to or in, along or on the road right of way but not within the roadway. [12] Having reviewed all of the pleadings and particularly the third party claim I accept that the applicant has made out a prima facie claim against the proposed third party. There is no prejudice to the plaintiff, for whom no one appeared on this application, as the court has been advised that the plaintiff has settled with its insurer who is requesting settlement from the defendant’s insured. I am satisfied there is a causal connection which exists between the cause of action pleaded in the statement of claim and the cause of action plead in the third party notice. am also aware that s. 308 of The Cities Act may be an absolute defence to the City. However as stated by the Saskatchewan Court of Appeal in MacPherson Engineering Inc., supra, the application is purely one of procedure and no substantive rights between the parties can be determined on it. It is not proper to assess evidence or go into possible defences. [13] Therefore the application to add the City of Saskatoon as a third party is granted as requested.
SGI applied on behalf of the defendant for an order under Queen's Bench Rule 107A(c) and s. 7 of The Contributory Negligence Act for leave to add the City of Saskatoon as a third party to the action. The defendant is being sued by the plaintiff for damage caused to a construction site under a bridge in Saskatoon. The damage is alleged to have been caused when the defendant's truck left the ramp leading onto the bridge and fell into an excavation pit. The defendant argues that the City should be added as a third party because the City did not take proper steps to clear snow from the ramp, which provided a surface for his vehicle to launch off of. HELD: The application to add the City of Saskatoon as a third party was granted. The applicant has made out a prima facie case against the proposed third party. There is no prejudice to the plaintiff because he has settled with his insurer and is requesting settlement with the defendant's insurer. There is a causal connection between the cause of action plead in the statement of claim and the third party notice. It is immaterial at this stage that the City may have an absolute defence.